_____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): November 13, 1995
OLD KENT FINANCIAL CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Michigan
(State of Incorporation or Organization)
0-12216 38-1986608
(Commission File Number) (I.R.S. Employer Identification No.)
Vandenberg Center, Grand Rapids, Michigan 49503
(Address of Principal Executive Offices)
(616) 771-5000
(Registrant's Telephone Number, Including Area Code)
________________________________________________________________________________
Item 5. Other Events.
1. On March 6, 1992, Old Kent Financial Corporation, a Michigan
corporation (the "Company"), pursuant to the Securities Act of 1933, as amended
(the "Act"), and Rule 415 thereunder, filed with the Securities and Exchange
Commission (the "Commission") a Registration Statement on Form S-3 (No.
33-46205) (the "Registration Statement") for up to $150,000,000 aggregate
principal amount of senior and subordinated unsecured debt securities. The
Registration Statement became effective on March 30, 1992. On November 13,
1995, the Company filed with the Commission, pursuant to Rule 424(b) under the
Act, a prospectus supplement dated November 8, 1995 to a prospectus dated
November 8, 1995 relating to the offering and sale of $100,000,000 of the
Company's 6-5/8% Subordinated Notes due November 15, 2005 (the "Notes").
In connection with the offering and sale of the Notes, the Company
entered into a Purchase Agreement dated November 8, 1995 (the "Purchase
Agreement"), with CS First Boston Corporation, Donaldson, Lufkin & Jenrette
Securities Corporation and Keefe, Bruyette & Woods, Inc. (collectively, the
"Underwriters"), which is incorporated by reference into a Terms Agreement,
dated November 8, 1995, among the Company and the Underwriters (the "Terms
Agreement"). The Notes will be issued under a Subordinated Indenture, dated as
of November 1, 1995, between the Company and Bankers Trust Company, as trustee
(the "Subordinated Indenture").
The Purchase Agreement is filed with this Form 8-K as Exhibit 1 and is
incorporated into and made part of the Registration Statement as Exhibit 1-1.
The Terms Agreement is filed with this Form 8-K as Exhibit 2 and is incorporated
into and made part of the Registration Statement as Exhibit 1-2. A form of the
Subordinated Indenture is filed with this Form 8-K as Exhibit 3 and is
incorporated into and made part of the Registration Statement as Exhibit
4(b)-1. A form of the Notes is filed with this Form 8-K as Exhibit 4 and is
incorporated into and made a part of the Registration Statement as Exhibit
4(c)-1.
Item 7. Financial Statements and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Exhibits:
1. Purchase Agreement, dated November 8, 1995, among the
Company and CS First Boston Corporation, Donaldson, Lufkin &
Jenrette Securities Corporation and Keefe, Bruyette & Woods, Inc.
2. Terms Agreement, dated November 8, 1995, among the Company
and CS First Boston Corporation, Donaldson, Lufkin &
Jenrette Securities Corporation and Keefe, Bruyette & Woods, Inc.
3. Form of Subordinated Indenture, dated as of November 1, 1995,
between the Company and Bankers Trust Company, as trustee.
4. Form of 6-5/8% Subordinated Note due November 15, 2005.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
OLD KENT FINANCIAL
CORPORATION
Date: November 15, 1995 By: /s/ Richard W. Wroten
Richard W. Wroten
Executive Vice President and Chief
Financial Officer
Exhibit Index
Exhibit No. Document
1 Purchase Agreement, dated November 8, 1995, among the
Company and CS First Boston Corporation, Donaldson, Lufkin &
Jenrette Securities Corporation and Keefe, Bruyette & Woods, Inc.
2 Terms Agreement, dated November 8, 1995, among the Company
and CS First Boston Corporation, Donaldson, Lufkin &
Jenrette Securities Corporation and Keefe, Bruyette & Woods, Inc.
3 Form of Subordinated Indenture, dated as of November 1, 1995,
between the Company and Bankers Trust Company, as trustee.
4 Form of 6-5/8% Subordinated Note due November 15, 2005.
EXHIBIT 1
OLD KENT FINANCIAL CORPORATION
Debt Securities
PURCHASE AGREEMENT
November 8, 1995
CS FIRST BOSTON CORPORATION
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
KEEFE, BRUYETTE & WOODS, INC.
c/o CS First Boston Corporation
55 East 52nd Street
New York, New York 10055
Dear Sirs:
Old Kent Financial Corporation, a Michigan corporation
(the "Company"), proposes to issue and sell up to $150,000,000
aggregate principal amount of its senior debt securities (the
"Senior Debt Securities"), its subordinated debt securities (the
"Subordinated Debt Securities") and its convertible subordinated
debt securities (the "Convertible Subordinated Debt Securities,"
and together with the Senior Debt Securities and the Subordinated
Debt Securities, the "Securities") in one or more offerings on
terms determined at the time of sale. The Senior Debt Securities
will be issued under an indenture to be dated on or prior to the
issuance of any Senior Debt Securities thereunder (the "Senior
Indenture") between the Company and Bankers Trust Company, as
trustee. The Subordinated Debt Securities and the Convertible
Subordinated Debt Securities will be issued under an indenture
dated as of November 1, 1995 (the "Subordinated Indenture," and
together with the Senior Indenture, the "Indentures"), between
the Company and Bankers Trust Company, as trustee. Bankers Trust
Company, in its capacity as trustee under the Senior Indenture
and the Subordinated Indenture, is hereafter referred to as the
"Trustee." Each series of Securities may vary as to rank,
aggregate principal amount, issue date, maturity date, currency,
interest rate or formula and timing of payments thereof, any
redemption or repayment provisions, any sinking fund
requirements, any conversion provisions and any other variable
terms as the applicable Indenture contemplates may be set forth
in the Securities issued from time to time. As used herein,
"you" and "your," unless the context otherwise requires, shall
mean the party or parties, if any, to whom this Agreement is
addressed as are named in the applicable Terms Agreement and such
additional parties, if any, as may be specifically named in such
Terms Agreement as co-managers with respect to Securities being
sold pursuant to such Terms Agreement.
Offerings of Securities may be made through one or more
of you or through an underwriting syndicate managed by one or
more of you. If the Company determines to make an offering of
Securities through one or more of you or through an underwriting
syndicate managed by one or more of you, the Company will enter
into an agreement (the "Terms Agreement") providing for the sale
of such Securities to, and the purchase and offering thereof by,
one or more of you and such other underwriters, if any, selected
by you as have authorized you to enter into such Terms Agreement
on their behalf (the "Underwriters," which term shall include you
whether acting alone in the sale of such Securities or as members
of an underwriting syndicate). The Terms Agreement relating to
each offering of Securities shall specify the principal amount of
Securities to be initially issued (the "Initial Offered
Securities") and their terms not otherwise specified in the
applicable Indenture, the names of the Underwriters participating
in such offering (subject to substitution as provided in Section
10 hereof), the principal amount of Initial Offered Securities
which each such Underwriter severally agrees to purchase, the
names of such of you or such other Underwriters acting as
co-managers, if any, in connection with such offering, the price at
which the Initial Offered Securities are to be purchased by the
Underwriters from the Company, the initial public offering price
(if such Initial Offered Securities are to be offered on a fixed
price basis) and the form, time and place of delivery and
payment. In addition, each Terms Agreement shall specify whether
the Company has agreed to grant to the Underwriters an option to
purchase additional Securities to cover over-allotments, if any,
and the principal amount of Securities subject to such option
(the "Option Securities"). As used herein, the term "Offered
Securities" shall include the Initial Offered Securities and all
or any portion of the Option Securities, if any. The Terms
Agreement, which shall be substantially in the form of Exhibit A
hereto, may take the form of an exchange of any standard form of
written telecommunication between you and the Company. Each
offering of the Offered Securities through one or more of you or
through an underwriting syndicate managed by one or more of you
will be governed by this Agreement, as supplemented by the
applicable Terms Agreement, and this Agreement and such Terms
Agreement shall inure to the benefit of and be binding upon each
Underwriter participating in the offering of the Offered
Securities.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3
(No. 33-46205) relating to the Securities and pre-effective
amendment no. 1 thereto, and the offering thereof from time to
time in accordance with Rule 415 under the Securities Act of
1933, as amended (the "1933 Act"), and has filed such amendments
thereto as may have been required to the date hereof. Such
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registration statement (as amended) has been declared effective
by the Commission, and the Indentures have been qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act").
Such registration statement, on the one hand, and the prospectus,
as supplemented by the prospectus supplement relating to the sale
of the Offered Securities (the "Prospectus Supplement"), on the
other hand, including all documents incorporated therein by
reference, as from time to time amended or supplemented pursuant
to the Securities Exchange Act of 1934, as amended (the "1934
Act"), the 1933 Act or otherwise, are hereinafter referred to as
the "Registration Statement" and the "Prospectus," respectively;
provided, however, that a Prospectus supplement shall be deemed
to have supplemented the Prospectus only with respect to the
offering of the Offered Securities to which it relates.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each
of you as of the date hereof, and to each Underwriter
named in a Terms Agreement as of the date thereof (such
latter date, which shall pertain only to the Offered
Securities being sold pursuant to such Terms Agreement,
being hereinafter referred to as the "Representation
Date"), as follows:
(i) The Registration Statement and the
Prospectus, at the time the Registration Statement
became effective and as of the applicable
Representation Date, complied in all material
respects with the requirements of the 1933 Act and
the rules and regulations thereunder (the "1933
Act Regulations") and the 1939 Act; and the
Registration Statement, at the time it became
effective and as of the applicable Representation
Date, did not, and will not, contain an untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading. The Prospectus, at the time the
Registration Statement became effective and as of
the applicable Representation Date, did not, and
will not, include an untrue statement of a
material fact or omit to state a material fact
necessary in order to make the statements therein,
in the light of the circumstances under which they
were made, not misleading; provided, however, that
the representations and warranties in this
subsection shall not apply to statements in or
omissions from the Registration Statement or the
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Prospectus made in reliance upon and in conformity
with information furnished to the Company in
writing by you expressly for use in the
Registration Statement or the Prospectus or to
that part of the Registration Statement which
shall constitute the Trustee's Statement of
Eligibility under the 1939 Act on Form T-1.
(ii) The documents incorporated by reference
in the Prospectus, at the time they were or
hereafter are filed with the Commission, complied,
and will comply, in all material respects with the
requirements of the 1934 Act and the rules and
regulations of the Commission under the 1934 Act
(the "1934 Act Regulations"), and, when read
together and with the other information in the
Prospectus, at the time the Registration Statement
and any amendments thereto become effective, will
not include an untrue statement of a material fact
or omit to state a material fact required to be
stated therein or necessary in order to make the
statements therein, in the light of the
circumstances under which they were made, not
misleading.
(iii) The accountants who certified the
financial statements and supporting schedules
included in the Registration Statement are
independent public accountants as required by the
1933 Act and the 1933 Act Regulations.
(iv) The financial statements incorporated by
reference in the Registration Statement and the
Prospectus present fairly the consolidated
financial position of the Company and its
subsidiaries as at the dates indicated and the
consolidated results of their operations for the
periods specified; except as otherwise stated
therein or in the Registration Statement and the
Prospectus, said financial statements have been
prepared in conformity with generally accepted
accounting principles applied on a substantially
consistent basis; and the supporting schedules
included in the Registration Statement and the
Prospectus present fairly the information required
to be stated therein.
(v) Since the respective dates as of which
information is given in the Registration Statement
and the Prospectus, except as otherwise stated
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therein, (1) there has been no material adverse
change in the condition, financial or otherwise,
or in the earnings, business affairs or business
prospects of the Company and its subsidiaries
considered as one enterprise, whether or not
arising in the ordinary course of business, (2)
there have been no transactions entered into by
the Company or any of its subsidiaries, other than
those in the ordinary course of business, and (3)
except for regular dividends on the Company's
Common Stock, there has been no dividend or
distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(vi) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Michigan
with corporate power and authority to own, lease
and operate its properties and to conduct its
business as described in the Registration
Statement and the Prospectus; the Company is duly
registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended (the
"Bank Holding Company Act"); and the Company is
duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which such qualification is
required, whether by reason of the ownership or
leasing of property or the conduct of business,
except where the failure to so qualify or be in
good standing would not have a material adverse
effect on the condition, financial or otherwise,
or the earnings, business affairs or business
prospects of the Company and its subsidiaries
considered as one enterprise.
(vii) Each subsidiary of the Company (1)
in the case of banking subsidiaries, is duly
organized as either a national banking association
or a Michigan or Illinois banking corporation and
is validly existing and in good standing under the
laws of the United States, the State of Michigan
or the State of Illinois (although in some cases
under different names), as the case may be, and
(2) in the case of non-banking subsidiaries, has
been duly incorporated and is validly existing as
a corporation in good standing under the laws of
the jurisdiction of its incorporation, and each of
the Company's subsidiaries has full power and
authority to own, lease and operate its properties
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and to conduct its business as described in the
Registration Statement and the Prospectus and is
duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which such qualification is
required, whether by reason of the ownership or
leasing of property or the conduct of business,
except where the failure to so qualify or be in
good standing would not have a material adverse
effect on the condition, financial or otherwise,
or the earnings, business affairs or business
prospects of the Company and its subsidiaries
considered as one enterprise; all of the issued
and outstanding capital stock of each such
subsidiary has been duly authorized and validly
issued and is fully paid and non-assessable,
subject, in the case of the national banking
associations, to the provisions of Section 55 of
Title 12 of the United States Code, and, in the
case of the Michigan banking corporations, to the
provisions of Section 201 of the Michigan Banking
Code of 1969, and, in the case of the Illinois
banking corporations, to the provisions of the
Illinois Banking Act, as amended; and, except for
directors' qualifying shares, the capital stock of
each such subsidiary is owned by the Company,
directly or through subsidiaries, free and clear
of any pledge, lien, encumbrance, claim or equity.
(viii) If the Prospectus contains a
"Capitalization" section or if such information is
contained elsewhere in the Prospectus, the
authorized, issued and outstanding capital stock
of the Company is as set forth therein (except for
subsequent issuances, if any, pursuant to
reservations or agreements referred to in the
Prospectus or pursuant to any employee stock
option, stock ownership or dividend reinvestment
plan); and the shares of issued and outstanding
Common Stock of the Company have been duly
authorized and validly issued and are fully paid
and non-assessable, and conform to all statements
relating thereto contained in the Prospectus.
(ix) The Securities have been duly authorized
for issuance and sale pursuant to this Agreement
(or will have been so authorized for issuance and
sale prior to each issuance of Securities) and
when issued, authenticated and delivered pursuant
to the provisions of this Agreement, the
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applicable Terms Agreement and the applicable
Indenture against payment of the consideration
therefor specified in such Terms Agreement, the
Securities will be valid and legally binding
obligations of the Company enforceable in
accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency
or other laws relating to or affecting enforcement
of creditors' rights or by general equity
principles, and will be entitled to the benefits
of the applicable Indenture; and the Securities
and the applicable Indenture conform in all
material respects to all statements relating
thereto contained in the Prospectus.
(x) If applicable, the shares of Common
Stock issuable upon conversion of any issue of
Convertible Subordinated Debt Securities will have
been, at each Representation Date, duly and
validly authorized and reserved for issuance upon
such conversion by all necessary corporate action
and such shares, when issued upon such conversion,
will be duly and validly issued and will be fully
paid and non-assessable, and the issuance of such
shares upon such conversion will not be subject to
preemptive rights.
(xi) Neither the Company nor any of its
subsidiaries is in violation of its charter or in
default in the performance or observance of any
obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument
which is material to the Company and its
subsidiaries considered as one enterprise and to
which it is a party or by which it or any of them
may be bound, or to which any of the property or
assets of the Company or its subsidiaries is
subject; and the execution, delivery and
performance of this Agreement, each Terms
Agreement and the Indentures by the Company, and
the consummation by the Company of the
transactions contemplated herein and therein, have
been duly authorized by all necessary corporate
action and will not conflict with or constitute a
breach of, or default under, or result in the
creation or imposition of any lien, charge or
encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to,
any material contract, indenture, mortgage, loan
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agreement, note, lease or other instrument to
which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound,
or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor
will such action result in any violation of the
provisions of the Articles of Incorporation or
bylaws of the Company or, to the knowledge of the
Company, any applicable law, administrative
regulation or administrative or court decree.
(xii) There is no action, suit or
proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened,
against or affecting the Company or any of its
subsidiaries, which is required to be disclosed in
the Registration Statement (other than as
disclosed therein), or which might result in any
material adverse change in the condition,
financial or otherwise, business or prospects of
the Company and its subsidiaries considered as one
enterprise, or which might materially and
adversely affect the properties or assets of the
Company and its subsidiaries considered as one
enterprise or which might materially and adversely
affect the consummation of this Agreement or any
Terms Agreement; all pending legal or governmental
proceedings to which the Company or any subsidiary
of the Company is a party or of which any of their
properties or assets is the subject which are not
described in the Registration Statement, including
ordinary routine litigation incidental to the
business of the Company or any such subsidiary,
are, considered in the aggregate, not material to
the Company and its subsidiaries considered as one
enterprise; and there are no material contracts or
documents of the Company or any of its
subsidiaries which are required to be filed or
incorporated by reference as exhibits to the
Registration Statement by the 1933 Act or by the
1933 Act Regulations which have not been so filed
or incorporated by reference.
(xiii) The Company and its subsidiaries
own or possess, or can acquire on reasonable
terms, adequate trademarks, service marks and
trade names necessary to conduct the business now
operated by them, and neither the Company nor any
of its subsidiaries has received any notice or is
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otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any
trademarks, service marks or trade names which,
singly or in the aggregate, would result in any
material adverse change in the financial
condition, income, business or operations of the
Company and its subsidiaries considered as one
enterprise.
(xiv) No authorization, approval,
consent, order or decree of any court or
governmental authority or agency is required in
connection with the offering, issuance or sale of
the Securities hereunder, except such as may be
required under the 1933 Act, the 1933 Act
Regulations or the 1939 Act, which have been
obtained, or as may be required under state
securities laws.
(xv) The Company and its subsidiaries possess
all material governmental licenses, permits,
consents, orders, approvals and other
authorizations necessary to lease or own, as the
case may be, and to operate their properties and
to carry on their businesses as presently
conducted, and neither the Company nor any of its
subsidiaries has received any notice of
proceedings relating to the revocation or
modification of any such certificate, authority or
permit, which, singly or in the aggregate, would
materially and adversely affect the condition,
financial or otherwise, or the earnings, business
affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(xvi) This Agreement has been, and, at
each Representation Date, the applicable Terms
Agreement will have been, duly executed and
delivered by the Company.
Any certificate signed by any officer of the
Company and delivered to you or to counsel for the
Underwriters in connection with an offering of the
Offered Securities shall be deemed a representation and
warranty by the Company to each Underwriter
participating in each offering as to the matters
covered thereby.
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SECTION 2. PURCHASE AND SALE.
(a) The several commitments of the Underwriters
to purchase Offered Securities pursuant to any Terms
Agreement shall be deemed to have been made on the
basis of the representations and warranties herein
contained and shall be subject to the terms and
conditions herein set forth.
(b) In addition, on the basis of the
representations and warranties herein contained and
subject to the terms and condition herein set forth,
the Company may grant, if so provided in the Terms
Agreement relating to any Offered Securities, an option
to the Underwriters, named in such Terms Agreement,
severally and not jointly, to purchase up to the
principal amount of Option Securities set forth therein
at the same price as is applicable to the Initial
Offered Securities. Such option, if granted, will
expire 30 days after the Representation Date relating
to the Offered Securities, and may be exercised in
whole or in part from time to time only for the purpose
of covering over-allotments which may be made in
connection with the offering and distribution of the
Offered Securities upon notice by you to the Company
setting forth the principal amount of Option Securities
as to which the several Underwriters are then
exercising the option and the time and date of payment
and delivery for such Option Securities. Any such time
and date of delivery (a "Date of Delivery") shall be
determined by you, but shall not be later than 7 full
business days and not earlier than 2 full business days
after the exercise of said option, nor in any event
prior to Closing Time (as hereinafter defined), unless
otherwise agreed upon by you and the Company. If the
option is exercised as to all or any portion of the
Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that
proportion of the aggregate principal amount of Option
Securities then being purchased which the principal
amount of the Initial Offered Securities each such
Underwriter has agreed to purchase as set forth in the
related Terms Agreement bears to the aggregate
principal amount of the Initial Offered Securities,
subject to such adjustments as you in your discretion
shall make to eliminate any sales or purchases of
fractional Securities.
(c) Payment of the purchase price for, and
delivery of, the Initial Offered Securities to be
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purchased by the Underwriters shall be made at the
offices of Brown & Wood, One World Trade Center, New
York, New York 10048, or at such other place as shall
be agreed upon by you and the Company, at 10:00 A.M.,
New York City time, on the fifth business day (unless
postponed in accordance with the provisions of Section
10) following the date of the applicable Terms
Agreement or at such other time and date as shall be
agreed upon by you and the Company (each such time and
date being hereinafter referred to as a "Closing
Time"). In addition, in the event that any or all of
the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and
delivery of, such Option Securities shall be made at
the above-mentioned offices of Brown & Wood, or at such
other place as shall be agreed upon by you and the
Company on each Date of Delivery as specified in the
notice from you to the Company. Unless otherwise
specified in the applicable Terms Agreement, payment
shall be made to the Company by certified or official
bank check or checks in New York Clearing House or
similar next day funds payable to the order of the
Company against delivery to you for the respective
accounts of the Underwriters of the Offered Securities
to be purchased by them. Such Offered Securities shall
be in such denominations and registered in such names
as you may request in writing at least 2 business days
prior to the applicable Closing Time or Date of
Delivery, as the case may be. Such Offered Securities,
which may be a temporary form, will be made available
for examination and packaging by you on or before the
first business day prior to Closing Time or Date of
Delivery, as the case may be.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants
with each of you, and with each Underwriter participating in any
applicable offering of Offered Securities, as follows:
(a) Immediately following the execution of each
Terms Agreement, the Company will prepare a Prospectus
Supplement setting forth the principal amount of
Initial Offered Securities covered thereby, the terms
of such Initial Offered Securities not otherwise
specified in the applicable Indenture, the names of the
Underwriters participating in the offering and the
principal amount of Initial Offered Securities which
each severally has agreed to purchase, the names of the
Underwriters acting as co-managers in connection with
the offering, the price at which the Initial Offered
Securities are to be purchased by the Underwriters from
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the Company, the initial public offering price (if such
Initial Offered Securities are to be offered on a fixed
price basis), the selling concession and reallowances,
if any, the existence and amount of any over-allotment
option, and such other information as you and the
Company deem appropriate in connection with the
offering of the Offered Securities. The Company will
promptly transmit copies of the Prospectus to the
Commission for filing pursuant to Rule 424 of the 1933
Act Regulations and will furnish to the Underwriters
named therein as many copies of the Prospectus as you
shall reasonably request.
(b) The Company will notify each of you
immediately and confirm the notice in writing, of (i)
the effectiveness of the Registration Statement and any
post-effective amendment thereto, (ii) the mailing or
the delivery to the Commission for filing of any
supplement to the Prospectus or any document to be
filed pursuant to the 1934 Act, (iii) the receipt of
any comments from the Commission, (iv) any request by
the Commission for any amendment to the Registration
Statement or any amendment or supplement to the
Prospectus or for additional information, and (v) the
issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The
Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order
is issued, to obtain the lifting thereof at the
earliest possible moment.
(c) The Company will give you notice of its
intention to file or prepare any amendment to the
Registration Statement (including any post-effective
amendment) or any amendment or supplement to the
Prospectus, and will furnish you with copies of any
such amendment or supplement or other document a
reasonable amount of time prior to such proposed filing
or use and will not file any such amendment or
supplement or other document or use any such Prospectus
to which you or counsel to the Underwriters shall
object.
(d) The Company will deliver to you as many
signed copies of the Registration Statement as
originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by
reference therein) as you may reasonably request and
will also deliver to each of you a conformed copy of
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the Registration Statement and of each amendment
thereto for each of the Underwriters.
(e) If at any time when the Prospectus is
required by the 1933 Act to be delivered in connection
with sales of Securities any event shall occur or
condition exist as a result of which it is necessary,
in the opinion of your counsel or counsel to the
Company, to further amend or supplement the Prospectus
in order that the Prospectus will not include an untrue
statement of a material fact or omit to state a
material fact necessary to make the statements therein
not misleading in the light of circumstances existing
at the time it is delivered to a purchaser or if it
shall be necessary, in the opinion of either such
counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the
1933 Act Regulations, the Company will promptly prepare
and file with the Commission such amendment or
supplement, whether by filing documents pursuant to the
1934 Act or otherwise, as may be necessary to correct
such untrue statement or omission to make the
Registration Statement comply with such requirements.
(f) The Company will endeavor, in cooperation
with you, to qualify the Securities, and, if
applicable, the Common Stock into which the Convertible
Subordinated Debt Securities are convertible, for
offering and sale under the applicable securities laws
of such states and other jurisdictions of the United
States as you may designate; provided, however, that
the Company shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which it is
not so qualified. In each jurisdiction in which the
Securities, and, if applicable, Common Stock, have been
so qualified, the Company will file such statements and
reports as may be required by the laws of such
jurisdiction to continue such qualification in effect
for as long as may be required for the distribution of
the Securities. The Company will promptly advise you
of the receipt by the Company of any notification with
respect to the suspension of the qualification of the
Securities or, if applicable, the related Common Stock,
for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such
purpose.
(g) The Company will make generally available to
its security holders as soon as practicable, but not
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later than 90 days after the close of the period
covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the 1933
Act Regulations) covering a 12-month period beginning
not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined
in said Rule 158) of the Registration Statement.
(h) The Company, during the period when the
Prospectus is required to be delivered under the 1933
Act, will file promptly all documents required to be
filed with the Commission pursuant to the 1934 Act.
(i) Between the time any Terms Agreement is
executed and the later of termination of any trading
restrictions or the Closing Time with respect to the
Securities covered thereby, the Company will not,
without the prior written consent of such of you as may
be named in such Terms Agreement, directly or
indirectly, sell, offer to sell, grant any option for
the sale of, or otherwise dispose of, any of its debt
securities (other than commercial paper or similar
instruments sold in the ordinary course of business)
or, if such Terms Agreement relates to Convertible
Subordinated Debt Securities that are convertible into
Common Stock, any Common Stock or any security
convertible into Common Stock (except for Common Stock
issued pursuant to reservations or agreements referred
to in the Prospectus or pursuant to any employee stock
option, stock ownership or dividend reinvestment plan).
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all
expenses incident to the performance of its obligations under
this Agreement and each Terms Agreement, including (a) the filing
of the Registration Statement as originally filed and of each
amendment thereto, (b) the printing of this Agreement and each
Terms Agreement, (c) the preparation, issuance and delivery of
the Securities and the Indentures to the Underwriters, (d) the
fees and disbursements of the Company's counsel and accountants,
(e) the qualification of the Securities and, if applicable, the
related Common Stock, under state securities laws in accordance
with the provisions of Section 3(f) hereof, including filing fees
and the fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of
the Blue Sky Survey and any Legal Investment Survey, (f) the
printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and all amendments
thereto, of each preliminary prospectus, and of the Prospectus
and any amendments or supplements thereto, (g) the reproduction
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and delivery to the Underwriters of copies of the Indentures and
the Blue Sky Survey and any Legal Investment Survey, (h) the fees
of nationally recognized securities rating agencies, (i) the fees
and expenses, if any, incurred with respect to any filing with
the National Association of Securities Dealers, Inc., (j) the
fees and expenses, if any, incurred in connection with any
listing of the Securities and the Common Stock issuable upon
conversion of any Convertible Subordinated Debt Securities and
(k) the fees and expenses of any depositary and the issuance of
the Securities in book-entry form, if applicable.
If a Terms Agreement is terminated by such of you as
are named therein in accordance with the provisions of Section 5
or Section 9(a) hereof, the Company shall reimburse the
Underwriters named in such Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for such Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters to purchase Offered Securities
pursuant to any Terms Agreement are subject to the accuracy of
the representations and warranties of the Company herein
contained, to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the
provisions hereof, to the performance by the Company of all of
its covenants and other obligations hereunder, and to the
following further conditions:
(a) At the applicable Closing Time, (i) no stop
order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the
Commission, (ii) the rating assigned by any nationally
recognized securities rating agency to any debt
securities or preferred stock of the Company as of the
date of the applicable Terms Agreement shall not have
been lowered since the execution of such Terms
Agreement nor shall any such rating agency have
publicly announced that it has under surveillance or
review, with possible negative implications, its rating
of any debt securities or preferred stock of the
Company and (iii) there shall not have come to the
attention of such of you as may be named in the
applicable Terms Agreement any facts that would
reasonably cause such of you to believe that the
Prospectus, at the time it was required to be delivered
to a purchaser of the Offered Securities, included an
untrue statement of a material fact or omitted to state
a material fact necessary in order to make the
-15-
statements therein, in light of the circumstances
existing at such time, not misleading.
(b) At the applicable Closing Time, you shall
have received:
(i) The favorable opinion, dated as of the
applicable Closing Time, of Warner Norcross & Judd
LLP, counsel for the Company, in form and
substance satisfactory to such of you as may be
named in the applicable Terms Agreement to the
effect that:
(1) The Company has been duly
incorporated and is validly existing as a
corporation in good standing under the laws
of the State of Michigan.
(2) The Company is duly registered as a
bank holding company under the Bank Holding
Company Act and has corporate power and
authority to own, lease and operate its
properties and to conduct its business as
described in the Registration Statement and
the Prospectus.
(3) To the best of their knowledge and
information, the Company is duly qualified as
a foreign corporation to transact business
and is in good standing in each jurisdiction
in which such qualification is required,
except where the failure to so qualify or be
in good standing would not have a material
adverse effect on the condition, financial or
otherwise, or the earnings, business affairs
or business prospects of the Company and its
subsidiaries considered as one enterprise.
(4) Each of the Company's banking
subsidiaries is duly organized, validly
existing and in good standing either as a
national banking association under the laws
of the United States, as a Michigan banking
corporation under the Michigan Banking Code
of 1969, as amended, or as a Illinois banking
corporation under the Illinois Banking Act,
as amended, as the case may be, and has the
power and authority to own, lease and operate
its properties and to conduct its business as
described in the Registration Statement and
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the Prospectus; all of the issued and
outstanding capital stock of Old Kent Bank, a
Michigan banking corporation and subsidiary
of the Company ("Old Kent Bank"), has been
duly authorized and validly issued and is
fully paid and non-assessable, subject to the
provisions of Section 201 of the Michigan
Banking Code of 1969; to the best of their
knowledge and information, all of the issued
and outstanding capital stock of each such
banking subsidiary other than Old Kent Bank
has been duly authorized and validly issued
and is fully paid and non-assessable,
subject, in the case of the national banking
associations, to the provisions of Section 55
of Title 12 of the United States Code, and,
in the case of the Michigan banking
corporations, to the provisions of Section
201 of the Michigan Banking Code of 1969,
and, in the case of the Illinois banking
corporation to the provisions of the Illinois
Banking Act, as amended; and, to the best of
their knowledge and information, all of the
capital stock of such banking subsidiaries is
owned by the Company free and clear of any
pledge, lien, encumbrance, claim or equity.
(5) If the Prospectus contains a
"Capitalization" section of if such
information is contained elsewhere in the
Prospectus, the authorized, issued and
outstanding capital stock of the Company is
as set forth therein (except for subsequent
issuances, if any, pursuant to reservations
or agreements referred to in the Prospectus
or pursuant to any employee stock option,
stock ownership or dividend reinvestment
plan); and, to the best of their knowledge
and information, shares of issued and
outstanding Common Stock of the Company have
been duly authorized and validly issued and
are fully paid and non-assessable, and
conform to all statements relating thereto
contained in the Prospectus.
(6) The applicable Indenture has been
duly and validly authorized, executed and
delivered by the Company and constitutes the
valid and binding agreement of the Company,
enforceable in accordance with its terms,
-17-
except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or
affecting enforcement of creditors' rights or
by general equity principles.
(7) The Offered Securities covered by
the applicable Terms Agreement are in the
form contemplated by the applicable Indenture
and have been duly and validly authorized by
all necessary corporate action and, when
executed and authenticated as specified in
the applicable Indenture and delivered
against payment of the consideration therefor
specified in such Terms Agreement, will be
valid and binding obligations of the Company,
enforceable in accordance with their terms,
except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or
affecting enforcement of creditors' rights or
by general equity principles, and will be
entitled to the benefits of the applicable
Indenture.
(8) The applicable Indenture and the
Offered Securities covered by the applicable
Terms Agreement conform in all material
respects to the descriptions thereof in the
Prospectus.
(9) The applicable Indenture is duly
qualified under the 1939 Act.
(10) With respect to Convertible
Subordinated Debt Securities, the shares of
Common Stock issuable upon conversion of the
Convertible Subordinated Debt Securities have
been duly authorized and reserved for
issuance upon such conversion by all
necessary corporate action and such shares,
when issued upon such conversion, will be
duly and validly issued and will be fully
paid and nonassessable, and the issuance of
such shares upon such conversion will not be
subject to preemptive rights.
(11) This Agreement and the applicable
Terms Agreement have been duly authorized,
executed and delivered by the Company.
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(12) The Registration Statement is
effective under the 1933 Act and, to the best
of their knowledge and information, no stop
order suspending the effectiveness of the
Registration Statement has been issued under
the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(13) At the time the Registration
Statement became effective and as of the date
of the applicable Terms Agreement, the
Registration Statement (other than the
financial statements and other financial and
statistical data included or incorporated by
reference therein and the Trustee's Statement
of Eligibility on Form T-1, as to which no
opinion need be rendered) complied as to form
in all material respects with the
requirements of the 1933 Act, the 1939 Act
and the 1933 Act Regulations.
(14) Each document filed pursuant to the
1934 Act (other than the financial statements
and other financial and statistical data
included or incorporated by reference
therein, as to which no opinion need by
rendered) and incorporated by reference in
the Prospectus complied when so filed as to
form in all material respects with the 1934
Act and the 1934 Act Regulations.
(15) To the best of their knowledge and
information, there are no legal or
governmental proceedings pending or
threatened which are required to be disclosed
in the Registration Statement, other than
those disclosed therein, and all pending
legal or governmental proceedings to which
the Company or any subsidiary of the Company
is a party or to which any of their
properties or assets is subject which are not
described in the Registration Statement,
including ordinary routine litigation
incidental to the business of the Company or
any such subsidiary, are, considered in the
aggregate, not believed to represent a
substantial risk of a material adverse effect
on the condition, financial or otherwise, or
the earnings, business affairs or business
-19-
prospects of the Company and its subsidiaries
considered as one enterprise.
(16) To the best of their knowledge and
information, there are no contracts,
indentures, mortgages, loan agreements,
notes, leases or other instruments required
to be described or referred to in the
Registration Statement or to be filed as
exhibits thereto other than those described
or referred to therein or filed or
incorporated by reference as exhibits
thereto; the descriptions thereof or
references thereto are correct; and no
default exists in the due performance or
observance of any material obligation,
agreement, covenant or condition contained in
any contract, indenture, mortgage, loan
agreement, note, lease or other instrument so
described, referred to, or filed or
incorporated by reference.
(17) No consent, approval, authorization
or order of any court or governmental
authority or agency is required in connection
with the sale of the Offered Securities under
this Agreement and the applicable Terms
Agreement, except such as may be required
under the 1933 Act, the 1939 Act or the 1933
Act Regulations or state securities laws; and
to the best of their knowledge and
information, the execution and delivery of
this Agreement, the applicable Terms
Agreement and the applicable Indenture by the
Company and the consummation by the Company
of the transactions contemplated herein and
therein will not conflict with or constitute
a breach of, or default under, or result in
the creation or imposition of any lien,
charge or encumbrance upon any property or
assets of the Company or any of its
subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note,
lease or other instrument, material to the
business affairs or business prospects of the
Company or its subsidiaries considered as one
enterprise, to which the Company or any of
its subsidiaries is a party or by which it or
any of them may be bound, or to which any of
the properties or assets of the Company or
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any of its subsidiaries is subject, nor will
such action result in any violation of the
provisions of the Articles of Incorporation
or bylaws of the Company or any applicable
law, administrative regulation or
administrative or court order or decree.
In rendering their opinion, such counsel
may rely (without independent verification) on
certificates of governmental officials and
officers of the Company and such other evidence
which counsel may reasonably deem necessary or
desirable in rendering their opinion and which is
of a character customarily relied upon in
rendering such an opinion. Any officers'
certificate shall be jointly addressed to Warner
Norcross & Judd LLP, the Underwriters and counsel
to the Underwriters. The Underwriters shall have
the benefit of, and shall be entitled to rely
upon, such certificates as representations of the
Company. In addition, such counsel may rely, as
to all matters of New York law, upon the opinion
of Brown & Wood referred to in subsection (b)(ii)
of this Section.
(ii) The favorable opinion, dated as of the
applicable Closing Time, of Brown & Wood, counsel
for the Underwriters, with respect to the matters
set forth in (1) and (6) to (13), inclusive, of
subsection (b)(i) of this Section.
(iii) In giving their opinions required
by subsections (b)(i) and (b)(ii), respectively,
of this Section, Warner Norcross & Judd LLP and
Brown & Wood shall each additionally state that
nothing has come to their attention that would
lead them to believe that the Registration
Statement (except for financial statements and
other financial or statistical data included or
incorporated by reference therein and for the
Trustee's Statement of Eligibility on Form T-1, as
to which such counsel need make no statement), at
the time it became effective, or if an amendment
to the Registration Statement or an Annual Report
on Form 10-K has been filed by the Company with
the Commission subsequent to the effectiveness of
the Registration Statement, then at the time of
the most recent such filing, contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
-21-
necessary to make the statements therein not
misleading or that the Prospectus, as amended or
supplemented at the date of the applicable Terms
Agreement or at Closing Time, included or includes
an untrue statement of a material fact or omitted
or omits to state a material fact necessary in
order to make the statements therein, in the light
of the circumstances under which they were made,
not misleading.
(c) At the applicable Closing Time, there shall
not have been, since the date of the applicable Terms
Agreement or since the respective dates as of which
information is given in the Prospectus, any material
adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in
the ordinary course of business, and you shall have
received a certificate of the Chairman of the Board of
Directors, the President or a Vice President of the
Company and of the chief financial officer or chief
accounting officer of the Company, dated as of such
Closing Time, to the effect that (i) there has been no
such material adverse change, (ii) the representations
and warranties of the Company contained in Section 1
hereof are true and correct with the same force and
effect as though expressly made at and as of such
Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to
be complied with or satisfied at or prior to such
Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(d) At the time of execution of the applicable
Terms Agreement and at the applicable Closing Time, you
shall have received from Arthur Andersen LLP, or such
other nationally recognized independent certified
public accountants as may be satisfactory to you, a
letter dated such date, in form and substance
satisfactory to you, to the effect that (i) they are
independent certified public accountants with respect
to the Company and its subsidiaries within the meaning
of the 1933 Act and the 1933 Act Regulations; (ii) in
their opinion the consolidated financial statements and
supporting schedules audited by them and included or
incorporated by reference in the Registration Statement
and Prospectus comply as to form in all material
-22-
respects with the applicable accounting requirements of
the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations; (iii) based upon the
limited procedures set forth in detail in such letter,
nothing has come to their attention which causes them
to believe that (1) any material modifications should
be made to the unaudited consolidated financial
statements and supporting schedules of the Company and
its subsidiaries included or incorporated by reference
in the Registration Statement and Prospectus for them
to be in conformity with generally accepted accounting
principles, (2) the unaudited consolidated financial
statements and supporting schedules of the Company and
its subsidiaries included or incorporated by reference
in the Registration Statement and Prospectus do not
comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and
the 1934 Act Regulations, or (3) at a specified date
not more than 5 days prior to the date of such letter,
there has been any change in the capital stock (other
than by reason of shares issued pursuant to
reservations or agreements referred to in the
Prospectus or pursuant to any employee stock option,
stock ownership or dividend reinvestment plan), any
increase in the consolidated long term debt or any
decrease in the consolidated shareholders' equity of
the Company and its consolidated subsidiaries, in each
case as compared with the amounts shown in the most
recent balance sheet included or incorporated by
reference in the Registration Statement and Prospectus
or, during the period from a specified date not more
than 5 days prior to the date of such letter, there
were any decreases, as compared with the corresponding
period in the preceding year, in total revenues
(interest income and non-interest income), net income,
net interest income or net income per share of the
Company and its subsidiaries except in all instances
for changes, increases or decreases which the
Registration Statement and Prospectus disclose have
occurred or may occur; and (iv) in addition to the
examination referred to in their opinions and the
limited procedures referred to in clause (iii) above,
they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts,
percentages and financial information which are derived
from the general accounting records of the Company, are
included in the Registration Statement and Prospectus
and are specified by you and have found such amounts,
percentages and financial information to be in
-23-
agreement with the relevant accounting records of the
Company and its subsidiaries identified in such letter.
(e) At the applicable Closing Time, counsel for
the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the
issuance and sale of the Offered Securities as herein
contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the
representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the
issuance and sale of the Offered Securities as herein
contemplated shall be satisfactory in form and
substance to you and counsel for the Underwriters.
(f) In the event the Underwriters exercise the
option, if any, provided in a Terms Agreement as set
forth in Section 2(b) hereof to purchase all or any
portion of the Option Securities, the representations
and warranties of the Company contained herein and the
statements in any certificates furnished by the Company
hereunder shall be true and correct as of each Date of
Delivery, and you shall have received:
(i) A certificate, dated such Date of
Delivery, of the Chairman of the Board of
Directors, President and Chief Executive Officer
or a Vice President of the Company and of the
chief financial officer or chief accounting
officer of the Company, in their capacities as
such, confirming that the certificate delivered at
Closing Time pursuant to Section 5(c) hereof
remains true and correct as of such Date of
Delivery.
(ii) The favorable opinion of Warner Norcross
& Judd LLP, counsel for the Company, in form and
substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery,
relating to the Option Securities and otherwise
substantially to the same effect as the opinion
required by Section 5(b)(i) hereof.
(iii) The favorable opinion of Brown &
Wood, counsel for the Underwriters, dated such
Date of Delivery, relating to the Option
Securities and otherwise substantially to the same
-24-
effect as the opinion required by Section 5(b)(ii)
hereof.
(iv) A letter from the independent certified
public accountants referred to in Section 5(d), in
form and substance satisfactory to you and dated
such Date of Delivery, substantially the same in
scope and substance as the letter furnished to you
pursuant to Section 5(d) hereof, except that the
"specified date" in the letter furnished pursuant
to this Section 5(f)(iv) shall be a date not more
than 5 days prior to such Date of Delivery.
If any condition specified in this Section shall not
have been fulfilled when and as required to be fulfilled, the
applicable Terms Agreement may be terminated by such of you as
may be named in such Terms Agreement by notice to the Company at
any time at or prior to the applicable Closing Time, and such
termination shall be without liability of any party to any other
party except as provided in Section 4 hereof.
SECTION 6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section
15 of the 1933 Act as follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged
untrue statement of a material fact contained in
the Registration Statement (or any amendment
thereto), or the omission or alleged omission
therefrom of a material fact required to be stated
therein or necessary to make the statements
therein not misleading or arising out of any
untrue statement or alleged untrue statement of a
material fact included in the Prospectus (or any
amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact
necessary in order to make the statements therein,
in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation
-25-
or proceeding by any governmental agency or body,
commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or
omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense
whatsoever, as incurred (including, the fees and
disbursements of counsel chosen by you),
reasonably incurred in investigating, preparing or
defending against any litigation, or any
investigation or proceeding by any governmental
agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue
statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall
not apply to any loss, liability, claim, damage, or
expense to the extent arising out of any untrue
statement or omission or such alleged untrue statement
or omission made in reliance upon and in conformity
with written information furnished to the Company by
such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement
thereto).
(b) Each Underwriter severally agrees to
indemnify and hold harmless the Company, its directors,
each of its officers who signed the Registration
Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933
Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written
information furnished to the Company by such
Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement
thereto).
-26-
(c) Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of
which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such
indemnifying party from any liability which it may have
otherwise than on account of this indemnity agreement.
An indemnifying party may participate at its own
expense in the defense of any such action. In no event
shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all
indemnified parties in connection with any one action
or separate but similar or related actions in the same
jurisdiction arising out of the same general
allegations or circumstances.
SECTION 7. CONTRIBUTION. In order to provide for just and
equitable contribution in circumstances in which the indemnity
agreement provided for in Section 6 hereof is for any reason held
to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and the
Underwriters of each offering of Offered Securities shall
contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and one or more of the
Underwriters in respect of such offering, as incurred, in such
proportions that the Underwriters are responsible for that
portion represented by the percentage that the underwriting
discount appearing on the cover page of the Prospectus in respect
of such offering bears to the initial public offering price
appearing thereon and the Company is responsible for the balance;
provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as the Company.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY. All representations, warranties and agreements
contained in this Agreement or any Terms Agreement or contained
in certificates of officers of the Company submitted pursuant
hereto or thereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of
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any Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of any Securities to the
Underwriters.
SECTION 9. TERMINATION OF AGREEMENT. This Agreement may be
terminated for any reason at any time by either the Company or
you upon the giving of 30 days' written notice of such
termination to the other parties hereto. Such of you as may be
named in any Terms Agreement may also terminate such Terms
Agreement, immediately upon notice to the Company, at any time at
or prior to the applicable Closing Time, if (a) there shall have
been, since the date of such Terms Agreement or since the
respective dates as of which information is given in the
Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course
of business, or (b) there shall have occurred any material
adverse change in the financial markets in the United States or
any outbreak or escalation of hostilities or other national or
international calamity or crisis the effect of which is such as
to make it, in the reasonable judgment of such of you as are
named in such Terms Agreement, impracticable to market the
Offered Securities or to enforce contracts for the sale of the
Offered Securities, or (c) trading in the Common Stock of the
Company shall have been suspended by the Commission or a national
securities exchange or any over-the-counter market, or if trading
generally on either the American Stock Exchange or the New York
Stock Exchange shall have been suspended, or minimum or maximum
prices for trading shall have been fixed, or maximum ranges for
prices for securities shall have been required, by either of said
Exchanges or in such market or by order of the Commission or any
other governmental authority, or if a banking moratorium has been
declared by either Federal, New York or Michigan authorities, or
(d) the rating assigned by any nationally recognized securities
rating agency to any debt securities or preferred stock of the
Company as of the time any applicable Terms Agreement was entered
into shall have been lowered since that time or if any such
rating agency shall have publicly announced that it has under
surveillance or review with possible negative implications, its
rating of any debt securities or preferred stock of the Company.
In the event of any such termination, (x) the covenants set forth
in Section 3 with respect to any offering of Securities shall
remain in effect so long as any Underwriter owns any such
Securities purchased from the Company pursuant to the applicable
Terms Agreement and (y) the covenant set forth in Section 3(h),
the provisions of Section 4, the indemnity agreement set forth in
Section 6, the contribution provisions set forth in Section 7 and
the provisions of Sections 8 and 13 shall remain in effect.
-28-
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If
one or more of the Underwriters participating in an offering of
Offered Securities shall fail at the applicable Closing Time to
purchase the Offered Securities which it or they are obligated to
purchase under the applicable Terms Agreement (the "Defaulted
Securities"), then such of you as are named therein shall have
the right, within 24 hours thereafter, to make arrangements for
one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, during such 24
hours you shall not have completed such arrangements for the
purchase of all of the Defaulted Securities, then:
(a) if the aggregate principal amount of
Defaulted Securities does not exceed 10% of the
aggregate principal amount of Offered Securities to be
purchased pursuant to such Terms Agreement, the
non-defaulting Underwriters named in such Terms Agreement
shall be obligated to purchase the full amount thereof
in the proportions that their respective underwriting
obligations bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the aggregate principal amount of
Defaulted Securities exceeds 10% of the aggregate
principal amount of Offered Securities to be purchased
pursuant to such Terms Agreement, the applicable Terms
Agreement shall terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve
any defaulting Underwriter from liability in respect of its
default under this Agreement and the applicable Terms Agreement.
In the event of any such default by any Underwriter or
Underwriters as set forth in this Section, either you or the
Company shall have the right to postpone the applicable Closing
Time for a period not exceeding 7 days in order to effect any
required changes in the Registration Statement or Prospectus or
in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed
to you at the address set forth above or, in respect of any Terms
Agreement, to such other person and place, if any, as may be
specified therein; and notices to the Company shall be directed
to it at One Vandenberg Center, Grand Rapids, Michigan 49503,
-29-
attention of Richard W. Wroten, Executive Vice President and
Chief Financial Officer, with a copy to Warner Norcross & Judd
LLP, 111 Lyon Street, N.W., 900 Old Kent Building, Grand Rapids,
Michigan 49503, attention of Gordon R. Lewis, Esq.
SECTION 12. PARTIES. This Agreement shall inure to the
benefit of and be binding upon you and the Company and any
Underwriter who becomes a party to a Terms Agreement, and their
respective successors. Nothing expressed or mentioned in this
Agreement or a Terms Agreement is intended or shall be construed
to give any person, firm or corporation, other than the parties
hereto and thereto and their respective successors and the
controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of
this Agreement or a Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and
all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties and their
respective successors and said controlling persons and officers
and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW. This Agreement and each Terms
Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made
and to be performed in said State.
-30-
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the
Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between
you and the Company in accordance with its terms.
Very truly yours,
OLD KENT FINANCIAL CORPORATION
By:_______________________________
Title:
CONFIRMED AND ACCEPTED
as of the date first above written:
CS FIRST BOSTON CORPORATION
By:______________________________________
DONALDSON, LUFKIN & JENRETTE SECURITIES
CORPORATION
By:______________________________________
KEEFE, BRUYETTE & WOODS, INC.
By:______________________________________
-31-
Exhibit A
OLD KENT FINANCIAL CORPORATION
[Title of Security]
TERMS AGREEMENT
Dated: , 19
To: Old Kent Financial Corporation
One Vandenberg Center
Grand Rapids, Michigan 49503
Re: Purchase Agreement dated November 8, 1995.
We understand that Old Kent Financial Corporation (the
"Company") proposes to issue and sell $__________ aggregate
principal amount of its [Title of Security] (the "[Initial]
Offered Securities"). The Underwriters named below, severally
and not jointly, offer to purchase, subject to the terms and
provisions of the above referenced Purchase Agreement, which is
incorporated herein in its entirety and made a part hereof, to
purchase the principal amount of [Initial] Offered Securities set
forth opposite its name[, and a proportionate share of Option
Securities, to the extent any are purchased].
Principal Amount of
[Senior] [Subordinated]
[Convertible Subordinated]
UNDERWRITER DEBT SECURITIES
_______________
Total.......... $
The [Initial] Offered Securities shall have the following
terms:
Title:
Rank: [Senior] [Subordinated]
Current ratings:
Interest rate or formula:
Interest Payment Dates:
-1-
Regular Record Dates:
Stated Maturity Date:
Redemption/repayment provisions:
Sinking fund requirements:
Conversion provisions:
Additional co-managers:
[Public offering price: %, plus accrued interest or
amortized original issue discount,
if any, from ________, 19__]
Purchase price: %, plus accrued interest or amortized
original issue discount, if any, from
__________, 19__ (payable in [next]
[same] day funds)
Number of Option Securities:
Other terms and conditions:
Closing date and location:
Please accept this offer no later than _______[A.][P.]M.,
New York City time, on ____________ by signing a copy of this
Terms Agreement in the space set forth below and returning the
signed copy to us.
[Managing Underwriters]
By: [Lead Managing Underwriter]
By:____________________________________
Authorized Signatory
Acting on behalf of themselves and
the other named Underwriters
Accepted:
OLD KENT FINANCIAL CORPORATION
By:_______________________________
-2-
EXHIBIT 2
OLD KENT FINANCIAL CORPORATION
6-5/8% Subordinated Notes due November 15, 2005
TERMS AGREEMENT
Dated: November 8, 1995
To: Old Kent Financial Corporation
One Vandenberg Center
Grand Rapids, Michigan 49503
Re: Purchase Agreement dated November 8, 1995.
We understand that Old Kent Financial Corporation (the "Company")
proposes to issue and sell $100,000,000.00 aggregate principal amount of
its 6-5/8% Subordinated Notes due November 15, 2005 (the "Offered
Securities"). The Underwriters named below, severally and not jointly,
offer to purchase, subject to the terms and provisions of the above
referenced Purchase Agreement, which is incorporated herein in its entirety
and made a part hereof, to purchase the principal amount of Offered
Securities set forth opposite their respective names.
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT OF
UNDERWRITER OFFERED SECURITIES
<S> <C>
CS First Boston Corporation ........ $ 33,333,334
Donaldson, Lufkin & Jenrette
Securities Corporation ...... 33,333,333
Keefe, Bruyette & Woods, Inc. ...... 33,333,333
Total $ 100,000,000
</TABLE>
The Offered Securities shall have the following terms:
Title: 6-5/8% Subordinated Notes due November 15, 2005
Rank: Subordinated
Current ratings: S&P - A-; Moody's - Baal
Interest rate or formula: 6-5/8% per annum
Interest Payment Dates: May 15 and November 15, commencing May
15, 1996
Regular Record Dates: May 1 or November 1 immediately preceding
the applicable Interest Payment Date
Stated Maturity Date: November 15, 2005
Redemption/repayment provisions: N/A
Sinking fund requirements: N/A
Conversion provisions: N/A
Additional co-managers: N/A
Public offering price: 99.452%, plus accrued interest, if any, from
November 16, 1995
Purchase price: 98.802%, plus accrued interest, if any, from
November 16, 1995 (payable in same day funds)
Number of Option Securities: N/A
Other terms and conditions: N/A
Closing date and location: November 16, 1995
Brown & Wood
One World trade Center
New York, New York 10048
Please accept this offer no later than on November 8, 1995 by signing
a copy of this Terms Agreement in the space set forth below and returning
the signed copy to us.
CS FIRST BOSTON CORPORATION
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
KEEFE, BRUYETTE & WOODS, INC.
By: CS FIRST BOSTON CORPORATION
By:____________________________________
Authorized Signatory
Acting on behalf of themselves and
the other named Underwriters
Accepted:
OLD KENT FINANCIAL CORPORATION
By:_______________________________
Richard W. Wroten
Executive Vice President and
Chief Financial Officer
EXHIBIT 3
___________________________________________________________________________
Old Kent Financial Corporation
ISSUER
to
Bankers Trust Company
TRUSTEE
________________
SUBORDINATED INDENTURE
_________________
Dated as of November 1, 1995
Subordinated Debt Securities
____________________________________________________________________________
OLD KENT FINANCIAL CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939, as
amended, and Subordinated Indenture, dated as of November 1, 1995.
TRUST INDENTURE ACT SECTION INDENTURE SECTION
<Section> 310(a)(1). . . . . . . . . . . . . . . . . . . . 606
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 606
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . 108
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . . . . . . 108
(c). . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
<Section> 311(a) . . . . . . . . . . . . . . . . . . . . . 108
(b). . . . . . . . . . . . . . . . . . . . . . . . . . 108
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . 108
(c). . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
<Section> 312(a) . . . . . . . . . . . . . . . . . . . . . 701, 702
(b). . . . . . . . . . . . . . . . . . . . . . . . . . 702
(c). . . . . . . . . . . . . . . . . . . . . . . . . . 702
<Section> 313(a) . . . . . . . . . . . . . . . . . . . . . 703(a, 703(b)
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . 108
(c). . . . . . . . . . . . . . . . . . . . . . . . . . 703(c)
(d). . . . . . . . . . . . . . . . . . . . . . . . . . 703(c)
<Section> 314(a) . . . . . . . . . . . . . . . . . . . . . 704
(b). . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d). . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e). . . . . . . . . . . . . . . . . . . . . . . . . . 102
<Section> 314(a) . . . . . . . . . . . . . . . . . . . . . 108
(b). . . . . . . . . . . . . . . . . . . . . . . . . . 611
(c). . . . . . . . . . . . . . . . . . . . . . . . . . 108
(d). . . . . . . . . . . . . . . . . . . . . . . . . . 108
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . 108
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . 108
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . 108
(e). . . . . . . . . . . . . . . . . . . . . . . . . . 108
<Section> 316(a) . . . . . . . . . . . . . . . . . . . . . 104
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . 502, 512
-i-
TRUST INDENTURE ACT SECTION INDENTURE SECTION
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . . . . . . 508
<Section> 317(a)(1). . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 504
(b). . . . . . . . . . . . . . . . . . . . . . . . . . 1003
<Section> 318(a) . . . . . . . . . . . . . . . . . . . . . 108
____________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of this Subordinated Indenture.
-ii-
TABLE OF CONTENTS
PAGE
R E C I T A L S. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION. . .1
Section 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . .1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Additional Amounts . . . . . . . . . . . . . . . . . . . .2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . .2
Authenticating Agent . . . . . . . . . . . . . . . . . . .2
Authorized Newspaper . . . . . . . . . . . . . . . . . . .2
Bank . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Bearer Security . . . . . . . . . . . . . . . . . . . . . .3
Board of Directors. . . . . . . . . . . . . . . . . . . . .3
Board Resolution. . . . . . . . . . . . . . . . . . . . . .3
Business Day. . . . . . . . . . . . . . . . . . . . . . . .3
Commission. . . . . . . . . . . . . . . . . . . . . . . . .3
Common Stock. . . . . . . . . . . . . . . . . . . . . . . .3
Company . . . . . . . . . . . . . . . . . . . . . . . . . .3
Company Request and Company Order . . . . . . . . . . . . .3
Constituent Bank. . . . . . . . . . . . . . . . . . . . . .3
Convertible Security or Convertible Securities. . . . . . .3
Conversion Price. . . . . . . . . . . . . . . . . . . . . .4
Corporate Trust Office. . . . . . . . . . . . . . . . . . .4
Corporation . . . . . . . . . . . . . . . . . . . . . . . .4
Coupon. . . . . . . . . . . . . . . . . . . . . . . . . . .4
Currency or Money . . . . . . . . . . . . . . . . . . . . .4
Currency Indexed Note . . . . . . . . . . . . . . . . . . .4
Date of Conversion. . . . . . . . . . . . . . . . . . . . .4
Defaulted Interest. . . . . . . . . . . . . . . . . . . . .4
Dollars or $. . . . . . . . . . . . . . . . . . . . . . . .4
Event of Default. . . . . . . . . . . . . . . . . . . . . .4
Government Obligations. . . . . . . . . . . . . . . . . . .4
Holder. . . . . . . . . . . . . . . . . . . . . . . . . . .5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . .5
Independent Public Accountants. . . . . . . . . . . . . . .5
Indexed Security. . . . . . . . . . . . . . . . . . . . . .5
Interest. . . . . . . . . . . . . . . . . . . . . . . . . .5
Interest Payment Date . . . . . . . . . . . . . . . . . . .5
Legal Holiday . . . . . . . . . . . . . . . . . . . . . . .5
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . .5
Office or Agency. . . . . . . . . . . . . . . . . . . . . .5
Officers' Certificate . . . . . . . . . . . . . . . . . . .6
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . .6
Original Issue Discount Security. . . . . . . . . . . . . .6
Outstanding . . . . . . . . . . . . . . . . . . . . . . . .6
-iii-
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . .7
Person. . . . . . . . . . . . . . . . . . . . . . . . . . .7
Place of Payment. . . . . . . . . . . . . . . . . . . . . .7
Predecessor Security. . . . . . . . . . . . . . . . . . . .7
Principal Constituent Bank. . . . . . . . . . . . . . . . .7
Redemption Date . . . . . . . . . . . . . . . . . . . . . .8
Redemption Price. . . . . . . . . . . . . . . . . . . . . .8
Registered Security . . . . . . . . . . . . . . . . . . . .8
Regular Record Date . . . . . . . . . . . . . . . . . . . .8
Responsible Officer . . . . . . . . . . . . . . . . . . . .8
Security or Securities. . . . . . . . . . . . . . . . . . .8
Security Register and Security Registrar. . . . . . . . . .8
Senior Indebtedness . . . . . . . . . . . . . . . . . . . .8
Special Record Date . . . . . . . . . . . . . . . . . . . .8
Stated Maturity . . . . . . . . . . . . . . . . . . . . . .9
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . .9
Trust Indenture Act . . . . . . . . . . . . . . . . . . . .9
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . .9
United States . . . . . . . . . . . . . . . . . . . . . . .9
United States Alien . . . . . . . . . . . . . . . . . . . .9
U.S. Depository or Depository . . . . . . . . . . . . . . .9
Vice President. . . . . . . . . . . . . . . . . . . . . . .9
Voting Stock. . . . . . . . . . . . . . . . . . . . . . . 10
Section 102. Compliance Certificates and Opinions . . . . . . . . 10
Section 103. Form of Documents Delivered to Trustee . . . . . . . 10
Section 104. Acts of Holders. . . . . . . . . . . . . . . . . . . 10
Section 105. Notices, Etc. to Trustee and Company . . . . . . . . 12
Section 106. Notice to Holders of Securities; Waiver. . . . . . . 13
Section 107. Language of Notices. . . . . . . . . . . . . . . . . 14
Section 108. Conflict with Trust Indenture Act. . . . . . . . . . 14
Section 109. Effect of Headings and Table of Contents . . . . . . 14
Section 110. Successors and Assigns . . . . . . . . . . . . . . . 14
Section 111. Separability Clause. . . . . . . . . . . . . . . . . 14
Section 112. Benefits of Indenture. . . . . . . . . . . . . . . . 15
Section 113. Governing Law. . . . . . . . . . . . . . . . . . . . 15
Section 114. Legal Holidays . . . . . . . . . . . . . . . . . . . 15
Section 115. Counterparts . . . . . . . . . . . . . . . . . . . . 15
ARTICLE TWO - SECURITIES FORMS . . . . . . . . . . . . . . . . . . . . . 15
Section 201. Forms Generally. . . . . . . . . . . . . . . . . . . 15
Section 202. Form of Trustee's Certificate of Authentication. . . 16
Section 203. Securities in Global Form. . . . . . . . . . . . . . 16
ARTICLE THREE - THE SECURITIES . . . . . . . . . . . . . . . . . . . . . 17
Section 301. Amount Unlimited; Issuable in Series . . . . . . . . 17
Section 302. Currency; Denominations. . . . . . . . . . . . . . . 20
Section 303. Execution, Authentication, Delivery and Dating . . . 21
Section 304. Temporary Securities . . . . . . . . . . . . . . . . 23
-iv-
Section 305. Registration, Transfer and Exchange. . . . . . . . . 23
Section 306. Mutilated, Destroyed, Lost and Stolen Securities . . 26
Section 307. Payment of Interest and Certain Additional Amounts;
Rights to Interest and Certain Additional Amounts
Preserved. . . . . . . . . . . . . . . . . . . . . . 27
Section 308. Persons Deemed Owners. . . . . . . . . . . . . . . . 29
Section 309. Cancellation . . . . . . . . . . . . . . . . . . . . 30
Section 310. Computation of Interest. . . . . . . . . . . . . . . 30
ARTICLE FOUR - SATISFACTION AND DISCHARGE. . . . . . . . . . . . . . . . 30
Section 401. Satisfaction and Discharge . . . . . . . . . . . . . 30
Section 402. Application of Trust Money . . . . . . . . . . . . . 32
ARTICLE FIVE - REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 501. Events of Default. . . . . . . . . . . . . . . . . . 32
Section 502. Acceleration of Maturity; Rescission and Annulment . 34
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . 34
Section 504. Trustee May File Proofs of Claim . . . . . . . . . . 35
Section 505. Trustee May Enforce Claims without Possession of
Securities or Coupons. . . . . . . . . . . . . . . . 36
Section 506. Application of Money Collected . . . . . . . . . . . 36
Section 507. Limitations on Suits . . . . . . . . . . . . . . . . 37
Section 508. Unconditional Right of Holders to Receive Principal
and any Premium, Interest. . . . . . . . . . . . . . 38
Section 509. Restoration of Rights and Remedies . . . . . . . . . 38
Section 510. Rights and Remedies Cumulative . . . . . . . . . . . 38
Section 511. Delay or Omission Not Waiver . . . . . . . . . . . . 38
Section 512. Control by Holders of Securities . . . . . . . . . . 39
Section 513. Waiver of Past Defaults. . . . . . . . . . . . . . . 39
Section 514. Waiver of Stay or Extension Laws . . . . . . . . . . 39
Section 515. Undertaking for Costs. . . . . . . . . . . . . . . . 40
ARTICLE SIX - THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . 40
Section 601. Certain Rights of Trustee. . . . . . . . . . . . . . 40
Section 602. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . . . . 41
Section 603. May Hold Securities. . . . . . . . . . . . . . . . . 42
Section 604. Money Held in Trust. . . . . . . . . . . . . . . . . 42
Section 605. Compensation and Reimbursement . . . . . . . . . . . 42
Section 606. Corporate Trustee Required; Eligibility;
Conflicting Interest . . . . . . . . . . . . . . . . 43
Section 607. Resignation and Removal; Appointment of Successor. . 43
Section 608. Acceptance of Appointment by Successor . . . . . . . 45
Section 609. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . 46
-v-
Section 610. Appointment of Authenticating Agent. . . . . . . . . 46
Section 611. Notice of Default. . . . . . . . . . . . . . . . . . 48
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY. . . . 48
Section 701. Company to Furnish Trustee Names and Addresses of
Holders. . . . . . . . . . . . . . . . . . . . . . . 48
Section 702. Preservation of Information; Communications to
Holders. . . . . . . . . . . . . . . . . . . . . . . 49
Section 703. Reports by Trustee . . . . . . . . . . . . . . . . . 49
Section 704. Reports by Company . . . . . . . . . . . . . . . . . 49
ARTICLE EIGHT - CONSOLIDATION, MERGER AND SALES. . . . . . . . . . . . . 50
Section 801. Company May Consolidate, Etc., Only on Certain
Terms. . . . . . . . . . . . . . . . . . . . . . . . 50
Section 802. Successor Person Substituted for Company . . . . . . 51
ARTICLE NINE - SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . 51
Section 901. Supplemental Indentures without Consent of Holders . 51
Section 902. Supplemental Indentures with Consent of Holders. . . 53
Section 903. Execution of Supplemental Indentures . . . . . . . . 54
Section 904. Effect of Supplemental Indentures. . . . . . . . . . 54
Section 905. Reference in Securities to Supplemental Indentures . 54
Section 906. Effect on Senior Indebtedness. . . . . . . . . . . . 55
Section 907. Conformity with Trust Indenture Act. . . . . . . . . 55
ARTICLE TEN - COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 1001. Payment of Principal and any Premium, Interest and
Additional Amounts . . . . . . . . . . . . . . . . . 55
Section 1002. Maintenance of Office or Agency. . . . . . . . . . . 55
Section 1003. Money for Securities Payments to Be Held in Trust. . 56
Section 1004. Additional Amounts . . . . . . . . . . . . . . . . . 58
Section 1005. [Reserved].. . . . . . . . . . . . . . . . . . . . . 59
Section 1006. Corporate Existence. . . . . . . . . . . . . . . . . 59
Section 1007. Waiver of Certain Covenants. . . . . . . . . . . . . 59
Section 1008. Company Statement as to Compliance; Notice of
Certain Defaults . . . . . . . . . . . . . . . . . . 59
ARTICLE ELEVEN - REDEMPTION OF SECURITIES. . . . . . . . . . . . . . . . 60
Section 1101. Applicability of Article . . . . . . . . . . . . . . 60
Section 1102. Election to Redeem; Notice to Trustee. . . . . . . . 60
Section 1103. Selection by Trustee of Securities to be Redeemed. . 60
Section 1104. Notice of Redemption . . . . . . . . . . . . . . . . 61
Section 1105. Deposit of Redemption Price. . . . . . . . . . . . . 62
Section 1106. Securities Payable on Redemption Date. . . . . . . . 63
Section 1107. Securities Redeemed in Part. . . . . . . . . . . . . 63
-vi-
ARTICLE TWELVE - SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . 64
Section 1201. Applicability of Article . . . . . . . . . . . . . . 64
Section 1202. Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . . . . . 64
Section 1203. Redemption of Securities for Sinking Fund. . . . . . 65
ARTICLE THIRTEEN - REPAYMENT AT THE OPTION OF HOLDERS. . . . . . . . . . 65
Section 1301. Applicability of Article . . . . . . . . . . . . . . 65
ARTICLE FOURTEEN - SECURITIES IN FOREIGN CURRENCIES. . . . . . . . . . . 66
Section 1401. Applicability of Article . . . . . . . . . . . . . . 66
ARTICLE FIFTEEN - MEETINGS OF HOLDERS OF SECURITIES. . . . . . . . . . . 66
Section 1501. Purposes for Which Meetings May Be Called. . . . . . 66
Section 1502. Call, Notice and Place of Meetings . . . . . . . . . 66
Section 1503. Persons Entitled to Vote at Meetings . . . . . . . . 67
Section 1504. Quorum; Action . . . . . . . . . . . . . . . . . . . 67
Section 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings. . . . . . . . . . . . . . . 68
Section 1506. Counting Votes and Recording Action of Meetings. . . 69
ARTICLE SIXTEEN - CONVERSION OF SECURITIES . . . . . . . . . . . . . . . 69
Section 1601. Conversion Privilege . . . . . . . . . . . . . . . . 69
Section 1602. Manner of Exercise of Conversion Privilege . . . . . 69
Section 1603. Cash Adjustment Upon Conversion. . . . . . . . . . . 70
Section 1604. Conversion Price . . . . . . . . . . . . . . . . . . 71
Section 1605. Adjustment of Conversion Price . . . . . . . . . . . 71
Section 1606. Effect of Reclassifications, Consolidations, Mergers
Or Sales on Conversion Privilege . . . . . . . . . . 73
Section 1607. Taxes on Conversions . . . . . . . . . . . . . . . . 74
Section 1608. Company to Reserve Common Stock. . . . . . . . . . . 74
Section 1609. Disclaimer by Trustee of Responsibility for
Certain Matters. . . . . . . . . . . . . . . . . . . 75
Section 1610. Company to Give Notice of Certain Events . . . . . . 75
ARTICLE SEVENTEEN - SUBORDINATION OF SECURITIES. . . . . . . . . . . . . 76
Section 1701. Securities Subordinated to Senior Indebtedness . . . 76
Section 1702. Subrogation. . . . . . . . . . . . . . . . . . . . . 77
Section 1703. Obligation of Company Unconditional. . . . . . . . . 78
Section 1704. Payments on Securities Permitted . . . . . . . . . . 78
Section 1705. Effectuation of Subordination by Trustee . . . . . . 78
Section 1706. Knowledge of and Notice to Trustee . . . . . . . . . 79
Section 1707. Trustee's Relation to Senior Indebtedness. . . . . . 79
-vii-
Section 1708. Rights of Holders of Senior Indebtedness Not
Impaired . . . . . . . . . . . . . . . . . . . . . . 80
-viii-
INDENTURE, dated as of November 1, 1995 (the "Indenture"),
between Old Kent Financial Corporation, a corporation duly organized and
existing under the laws of the State of Michigan (hereinafter called the
"Company"), having its principal executive office located at One Vandenberg
Center, Grand Rapids, Michigan 49503, and Bankers Trust Company, a New York
banking corporation (hereinafter called the "Trustee"), having its
Corporate Trust Office located at Four Albany Street, New York, New York
10006.
R E C I T A L S :
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
unsecured subordinated debentures, notes or other evidences of indebtedness
(hereinafter called the "Securities"), unlimited as to principal amount, to
bear such rates of interest, to mature at such time or times, to be issued
in one or more series and to have such other provisions as shall be fixed
as hereinafter provided.
The Company has duly authorized the execution and delivery of
this Indenture. All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder, the valid obligations of the
Company, in accordance with their terms, have been done.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder that are required
to be part of this Indenture and, to the extent applicable, shall be
governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of any series thereof and any Coupons (as
herein defined) as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. DEFINITIONS.
Except as otherwise expressly provided in or pursuant to this
Indenture or unless the context otherwise requires, for all purposes of
this Indenture:
(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 and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
(4) the words "herein," "hereof," "hereto," 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; and
(5) the word "or" is always used inclusively (for example,
the phrase "A or B" means "A or B or both," not "either A or B
but not both").
Certain terms used principally in certain Articles hereof are
defined in those Articles.
"Act," when used with respect to any Holders, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are
required hereby or by any Security, under circumstances specified herein or
therein, to be paid by the Company in respect of certain taxes, assessments
or other governmental charges imposed on Holders specified therein and
which are owing to such Holders.
"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
the meanings correlative to the foregoing.
-2-
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 610 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language
of the place of publication or in the English language, customarily
published on each day that is a Business Day in the place of publication,
whether or not published on days that are Legal Holidays in the place of
publication, and of general circulation in each place in connection with
which the term is used or in the financial community of each such place.
Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in
different newspapers in the same city meeting the foregoing requirements
and in each case on any day that is a Business Day in the place of
publication.
"Bank" means (i) any institution organized under the laws of the
United States, any State of the United States, the District of Columbia,
any territory of the United States, Puerto Rico, Guam, American Samoa or
the Virgin Islands which (a) accepts deposits that the depositor has the
legal right to withdraw on demand and (b) engages in the business of making
commercial loans, and (ii) any trust company organized under any of the
foregoing laws.
"Bearer Security" means any Security in the form established
pursuant to Section 201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company
or any committee of that board duly authorized to act generally or in any
particular respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions,
certified by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, delivered to the Trustee.
"Business Day," unless otherwise specified with respect to any
Securities pursuant to Section 301, with respect to any Place of Payment or
other location, means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a Legal Holiday in such Place of Payment or other location.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this 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 Stock" means, as to shares of a particular corporation,
outstanding shares of stock of any class whether now or hereafter
-3-
authorized that shall have ordinary power to vote for election of directors
of such corporation and by its terms shall not have any preference as to
distribution of assets upon any liquidation, dissolution or winding up of
such corporation.
"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, and any other obligor upon the
Securities.
"Company Request" and "Company Order" mean, respectively, a
written request or order, as the case may be, signed in the name of the
Company by the Chairman of the Board of Directors, a Vice Chairman, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Constituent Bank" means any Subsidiary which is a Bank with its
principal office in Michigan.
"Convertible Security" or "Convertible Securities" means any
Security or Securities, as the case may be, which are, by their terms
convertible or exchangeable into Common Stock or other securities.
"Conversion Price" means the price per share of Common Stock from
time to time in effect at which any Convertible Security may be converted
into Common Stock as determined by or pursuant to the terms of this
Indenture.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of original
execution of this Indenture is located at the address specified in the
first paragraph of this Indenture.
"Corporation" includes corporations and, except for purposes of
Article Eight, associations, companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Currency" or "Money," with respect to any payment, deposit or
other transfer in respect of the principal of or any premium or interest on
or any Additional Amounts with respect to any Security, means the unit or
units of legal tender for the payment of public and private debts (or any
composite thereof) in which such payment, deposit or other transfer is
required to be made by or pursuant to the terms hereof or such Security
and, with respect to any other payment, deposit or transfer pursuant to or
contemplated by the terms hereof or such Security, means Dollars.
-4-
"Currency Indexed Note" means any Security with the amount of
principal payments determined by reference to an index Currency.
"Date of Conversion," with respect to any Convertible Security or
portion thereof to be converted, means the date on which such Convertible
Security shall be surrendered for conversion and notice given in accordance
with the provisions of Article Sixteen.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollars" or "$" means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States of
America.
"Event of Default" has the meaning specified in Section 501.
"Government Obligations" means securities that are (i) direct
obligations of the government or governments which issued the Currency in
which the principal of or any premium or interest on such Security or any
Additional Amounts in respect thereof shall be payable, in each case where
the payment or payments thereunder are supported by the full faith and
credit of such government or governments or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
such government or governments, in each case where the payment or payments
thereunder are unconditionally guaranteed as a full faith and credit
obligation by such government or governments, and which, in the case of (i)
or (ii), are not callable or redeemable at the option of the issuer or
issuers thereof, and shall also include a depository receipt issued by a
bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of or other
amount with respect to any such Government Obligation held by such
custodian for the account of the holder of a depository receipt, PROVIDED
that (except as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or principal
of or other amount with respect to the Government Obligation evidenced by
such depository receipt.
"Holder," in the case of any Registered Security, means the
Person in whose name such Security is registered in the Security Register
and, in the case of any Bearer Security, means the bearer thereof and, in
the case of any Coupon, means the bearer thereof
"Indenture" means this instrument as it may from time to time be
supplemented, amended or modified by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and, with
respect to any Security, by the terms and provisions of such Security and
any Coupon appertaining thereto established pursuant to Section 301 (as
-5-
such terms and provisions may be amended or modified pursuant to the
applicable provisions hereof).
"Independent Public Accountants" means accountants or a firm of
accountants that, with respect to the Company and any other obligor under
the Securities or the Coupons, are independent public accountants within
the meaning of the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder, who may be the
independent public accountants regularly retained by the Company or who may
be other independent public accountants. Such accountants or firm shall be
entitled to rely upon any Opinion of Counsel as to the interpretation of
any legal matters relating to the Indenture or certificates required to be
provided hereunder.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or
less than the principal face amount thereof at original issuance.
"Interest," with respect to any Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest
payable after Maturity and, when used with respect to a Security that
provides for the payment of Additional Amounts pursuant to Section 1004,
includes such Additional Amounts.
"Interest Payment Date," with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Legal Holiday," with respect to any Place of Payment or other
location, means a Saturday, a Sunday or a day on which banking institutions
or trust companies in such Place of Payment or other location are
authorized or obligated by law, regulation or executive order to be closed.
"Maturity," with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due
and payable as provided in or pursuant to this Indenture, whether at the
Stated Maturity or by declaration of acceleration, notice of redemption,
notice of option to elect repayment or otherwise, and includes any
Redemption Date.
"Office or Agency," with respect to any Securities, means an
office or agency of the Company maintained or designated in a Place of
Payment for such Securities pursuant to Section 1002 or any other office or
agency of the Company maintained or designated for such Securities pursuant
to Section 1002 or, to the extent designated or required by Section 1002 in
lieu of such office or agency, the Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
-6-
Secretary of the Company, that complies with the requirements of Section
314(e) of the Trust Indenture Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be an employee of or counsel for the Company or other counsel who shall be
reasonably acceptable to the Trustee, that complies with the requirements
of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means a Security issued
pursuant to this Indenture which provides for declaration of an amount less
than the principal face amount thereof to be due and payable upon
acceleration pursuant to Section 502.
"Outstanding," when used with respect to any Securities, means,
as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(a) any such Security theretofore canceled by the Trustee
or the Security Registrar or delivered to the Trustee or the
Security Registrar for cancellation;
(b) any such Security or portions thereof for whose payment
at the Maturity thereof Money in the necessary amount has been
theretofore deposited pursuant hereto with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities and any
Coupons appertaining thereto, PROVIDED that, if such Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(c) any such Security which has been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, unless there shall have been presented to the Trustee
proof satisfactory to it that such Security is held by a bona
fide purchaser in whose hands such Security is a valid obligation
of the Company; and
(d) any such Security converted or exchanged as
contemplated by this Indenture into Common Stock or other
securities, if the terms of such Security provide for such
conversion or exchange pursuant to Section 301;
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 or are
-7-
present at a meeting of Holders of Securities for quorum purposes, (i) the
principal amount of an Original Issue Discount Security that may be counted
in making such determination and that shall be deemed to be Outstanding for
such purposes shall be equal to the amount of the principal thereof that
pursuant to the terms of such Original Issue Discount Security would be
declared (or shall have been declared to be) due and payable upon a
declaration of acceleration thereof pursuant to Section 502 at the time of
such determination, (ii) the principal amount of any Security denominated
other than in Dollars that may be counted in making such determination and
that shall be deemed Outstanding for such purpose shall be equal to the
Dollar equivalent, determined by the Company as of the date the Security is
originally issued by the Company, of the principal amount (or, in the case
of an Original Issue Discount Security, the Dollar equivalent as of such
date of original issuance of the amount determined as provided in clause
(i) above) of such Security, (iii) the principal amount of any Indexed
Security that may be counted in making such determination and that shall be
deemed Outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise
provided in or pursuant to this Indenture, and (iv) 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 making any such determination or relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which shall have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee (A) the pledgee's right so to act with respect to such
Securities and (B) that the pledgee is not the Company or any other obligor
upon the Securities or any Coupons appertaining thereto or any Affiliate of
the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of, or any premium or interest on, or any Additional Amounts
with respect to any Security or any Coupon on behalf of the Company.
Unless otherwise provided in or pursuant to this Indenture, the Company
shall be the Paying Agent for each series of Securities and any Coupons
relating thereto.
"Person" means any individual, Corporation, partnership, joint
venture, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," with respect to any Security, means the place
or places where the principal of, or any premium or interest on, or any
Additional Amounts with respect to such Security is payable as provided in
or pursuant to this Indenture.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
-8-
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a lost, destroyed, mutilated or stolen Security
or any Security to which a mutilated, destroyed, lost or stolen Coupon
appertains shall be deemed to evidence the same debt as the lost,
destroyed, mutilated or stolen Security or the Security to which a
mutilated, destroyed, lost or stolen Coupon appertains.
"Principal Constituent Bank" means a Constituent Bank the
consolidated assets of which constitute 15 percent or more of the Company's
consolidated assets as determined from the most recent statement of
financial condition of the Company.
"Redemption Date," with respect to any Security or portion
thereof to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture or such Security.
"Redemption Price," with respect to any Security or portion
thereof to be redeemed, means the price at which it is to be redeemed as
determined by or pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any,
specified in or pursuant to this Indenture or such Security as the "Regular
Record Date."
"Responsible Officer" means, when used with respect to the
Trustee, any officer within its Corporate Trust Office, including without
limitation any vice president, any assistant vice president, any assistant
secretary or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above-designated
officers, and also means, with respect to 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.
"Security" or "Securities" means any Security or Securities, as
the case may be, authenticated and delivered under this Indenture;
PROVIDED, HOWEVER, that, if at any time there is more than one Person
acting as Trustee under this Indenture, "Securities," with respect to any
such Person, shall mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
-9-
"Senior Indebtedness" means the principal of and premium, if any,
and interest on any indebtedness of the Company for money borrowed
(including all indebtedness of the Company for borrowed and purchased money
of the Company, all obligations of the Company arising from off-balance
sheet guarantees by the Company and direct credit substitutes, and
obligations of the Company associated with derivative products such as
interest and foreign exchange rate contracts and commodity contracts) that
is outstanding on the date hereof or is hereafter created, incurred or
assumed, for the payment of which the Company is at the time of
determination responsible or liable as obligor, guarantor or otherwise, and
all deferrals, renewals, extensions and refundings of any such indebtedness
or obligations, other than the Securities or any other indebtedness as to
which, in the instrument creating or evidencing the same or pursuant to
which the same is outstanding, it is provided that such indebtedness is
subordinate in right of payment to any other indebtedness of the Company.
"Special Record Date" for the payment of any Defaulted Interest
on any Registered Security means a date fixed by the Trustee pursuant to
Section 307.
"Stated Maturity," with respect to any Security or any
installment of principal thereof or interest thereon or any Additional
Amounts with respect thereto, means the date established by or pursuant to
this Indenture or such Security as the fixed date on which the principal of
such Security or such installment of principal or interest is or such
Additional Amounts are due and payable.
"Subsidiary" means any Corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50 percent of the shares of Voting Stock.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a
particular provision thereof shall mean such act or provision, as the case
may be, as amended or replaced from time to time or as supplemented from
time to time by rules or regulations adopted by the Commission under or in
furtherance of the purposes of such act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become
such with respect to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall
mean each Person who is then a Trustee hereunder; PROVIDED, HOWEVER, that
if at any time there is more than one such Person, "Trustee" shall mean
each such Person and, as used with respect to the Securities of any series,
shall mean the Trustee with respect to the Securities of such series.
"United States," except as otherwise provided herein or in any
Security, means the United States of America (including the states thereof
-10-
and the District of Columbia), its territories and possessions and other
areas subject to its jurisdiction.
"United States Alien," except as otherwise provided in or
pursuant to this Indenture or any Security, means any Person who, for
United States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust or a foreign partnership one or more of the members of
which is, for United States federal income tax purposes, a foreign
corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.
"U.S. Depository" or "Depository" means, with respect to any
Security issuable or issued in the form of one or more global Securities,
the Person designated as U.S. Depository or Depository by the Company in or
pursuant to this Indenture, which Person must be, to the extent required by
applicable law or regulation, a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and, if so provided with
respect to any Security, any successor to such Person. If at any time
there is more than one such Person, "U.S. Depository," or "Depository"
shall mean, with respect to any Securities, the qualifying entity which has
been appointed with respect to such Securities.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "Vice President."
"Voting Stock" means stock of a Corporation of the class or
classes having general voting power under ordinary circumstances to elect
at least a majority of the board of directors, managers or trustees of such
Corporation, provided that, for the purposes hereof, stock which carries
only the right to vote conditionally on the happening of an event shall not
be considered voting stock whether or not such event shall have happened.
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that, in
the opinion of such counsel, all such conditions precedent, if any, have
been complied with, except that in the case of any such application or
request as to which the furnishing of such documents or any of them is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion
need be furnished.
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Section 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon an Opinion of Counsel,
unless such officer knows, or in the exercise of reasonable care should
know, that such Opinion of Counsel with respect to the matters upon which
his certificate or opinion is based is erroneous. Any such Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual
matters is in the possession of the Company unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture or any Security, they may, but need
not, be consolidated and form one instrument.
Section 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to 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. If, but only if,
Securities of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided in or pursuant to this Indenture to be given or taken by Holders
of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in
favor thereof, either in person or by proxies duly appointed in writing, at
any meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments
and any such record (and the action embodied therein and evidenced thereby)
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are herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent,
or of the holding by any Person of a Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 315 of the Trust
Indenture Act) conclusive in favor of the Trustee and the Company and any
agent of the Trustee or the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be
proved in the manner provided in Section 1506.
Without limiting the generality of this Section 104, unless
otherwise provided in or pursuant to this Indenture, a Holder, including a
U.S. Depository that is a Holder of a global Security, may make, give or
take, by a proxy, or proxies, duly appointed in writing, any request,
demand, authorization, direction, notice, consent, waiver or other Act
provided in or pursuant to this Indenture to be made, given or taken by
Holders, and a U.S. Depository that is a Holder of a global Security may
provide its proxy or proxies to the beneficial owners of interests in any
such global Security through such U.S. Depository's standing instructions
and customary practices.
The Trustee shall fix a record date for the purpose of
determining the Persons who are beneficial owners of interest in any
permanent global Security held by a U.S. Depository entitled under the
procedures of such U.S. Depository to make, give or take, by a proxy or
proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant to
this Indenture to be made, given or taken by Holders. If such a record
date is fixed, the Holders on such record date or their duly appointed
proxy or proxies, and only such Persons, shall be entitled to make, give or
take such request, demand, authorization, direction, notice, consent,
waiver or other Act, whether or not such Holders remain Holders after such
record date. No such request, demand, authorization, direction, notice,
consent, waiver or other Act shall be valid or effective if made, given or
taken more than 90 days after such record date.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient and in accordance with such reasonable rules as
the Trustee may determine; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this
Section.
(c) The ownership, principal amount and serial numbers of
Registered Securities held by any Person, and the date of the commencement
and the date of the termination of holding the same, shall be proved by the
Security Register.
(d) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the
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date of the termination of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary
reasonably acceptable to the Company and the Trustee, wherever situated, if
such certificate shall be deemed by the Company and the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee and
the Company may assume that such ownership of any Bearer Security continues
until (1) another certificate or affidavit bearing a later date issued in
respect of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person, or (3) such
Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership,
principal amount and serial numbers of Bearer Securities held by the Person
so executing such instrument or writing and the date of the commencement
and the date of the termination of holding the same may also be proved in
any other manner which the Company and the Trustee deem sufficient.
(e) If the Company shall solicit from the Holders of any
Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may at its option (but is
not obligated to), by Board Resolution fix in advance a record date, which
record date shall be at least two Business Days prior to such solicitation,
for the determination of Holders of Registered Securities entitled to give
such request, demand, authorization, direction, notice, consent, waiver or
other Act. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of Registered
Securities of record at the close of business on such record date shall be
deemed to be Holders for the purpose of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders of Registered Securities
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record
date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent or the Company in
reliance thereon, whether or not notation of such Act is made upon such
Security.
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Section 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Company shall be
sufficient for every purpose hereunder if made, given,
furnished or filed in writing, or transmitted by facsimile
transmission (confirmed by guaranteed overnight courier), to
or with the Trustee at its Corporate Trust Office or any
other address previously furnished in writing to the Company
by the Trustee; or
(2) the Company by the Trustee or any Holder shall be
sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first
class postage prepaid, or transmitted by facsimile
transmission (confirmed by guaranteed overnight courier), to
the Company addressed to the attention of its Treasurer at
the address of its principal office specified in the first
paragraph of this Indenture or at any other address
previously furnished in writing to the Trustee by the
Company.
Section 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of
Securities of any event,
(1) such notice shall be sufficiently given to Holders
of Registered Securities if in writing and mailed, first-
class postage prepaid, to each Holder of a Registered
Security affected by such event, at his address as it
appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for
the giving of such notice; and
(2) such notice shall be sufficiently given to Holders
of Bearer Securities, if any, if published in an Authorized
Newspaper in The City of New York and, if such Securities
are then listed on any stock exchange outside the United
States, in an Authorized Newspaper in such city as the
Company shall advise the Trustee that such stock exchange so
requires, on a Business Day, at least twice, the first such
publication to be not earlier than the earliest date and the
second such publication to be not later than the latest date
prescribed for the giving of such notice.
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In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder of a Registered Security
shall affect the sufficiency of such notice with respect to other Holders
of Registered Securities or the sufficiency of any notice to Holders of
Bearer Securities given as provided herein. Any notice which is mailed in
the manner herein provided shall be conclusively presumed to have been duly
given or provided. In the case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for
every purpose hereunder.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other
cause it shall be impracticable to publish any notice to Holders of Bearer
Securities as provided above, then such notification to Holders of Bearer
Securities as shall be given with the approval of the Trustee shall
constitute sufficient notice to such Holders for every purpose hereunder.
Neither failure to give notice by publication to Holders of Bearer
Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice mailed to Holders of Registered
Securities as provided above.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders of Securities
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
Section 107. LANGUAGE OF NOTICES.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in
the English language, except that, if the Company so elects, any published
notice may be in an official language of the country of publication.
Section 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with any
duties under any required provision of the Trust Indenture Act imposed
hereon by Section 318(c) thereof, such required provision shall control.
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Section 109. 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 110. 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 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture, any Security or any
Coupon 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 112. BENEFITS OF INDENTURE.
Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto and
holders of Senior Indebtedness, any Security Registrar, any Paying Agent
and their successors hereunder and the Holders of Securities or Coupons,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 113. GOVERNING LAW.
This Indenture, the Securities and any Coupons shall be governed
by and construed in accordance with the laws of the State of New York
applicable to agreements made or instruments entered into and, in each
case, performed in said state.
Section 114. LEGAL HOLIDAYS.
Unless otherwise specified in or pursuant to this Indenture or
any Securities, in any case where any Interest Payment Date, Redemption
Date, Stated Maturity or Maturity of any Security or Coupon, or the last
date on which a Holder has the right to convert Convertible Securities,
shall be a Legal Holiday at any Place of Payment, then (notwithstanding any
other provision of this Indenture, any Security or any Coupon other than a
provision in any Security or Coupon that specifically states that such
provision shall apply in lieu hereof) payment need not be made at such
Place of Payment on such date and such Convertible Securities need not be
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converted on such date, but such payment may be made, and such Convertible
Securities may be converted, on the next succeeding day that is a 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 on the last date on which
a Holder has the right to convert such Convertible Securities or at the
Stated Maturity or Maturity, and no interest shall accrue on the amount
payable on such date or at such time for the period from and after such
Interest Payment Date, Redemption Date, Stated Maturity, Maturity, or last
date on which a Holder has the right to convert such Convertible
Securities, as the case may be, to the next succeeding Business Day.
Section 115. COUNTERPARTS.
This Indenture may be executed in several counterparts, each of
which shall be deemed to be an original and all of which shall together
constitute but one and the same instrument.
ARTICLE TWO
SECURITIES FORMS
Section 201. FORMS GENERALLY.
Each Registered Security, Bearer Security, Coupon and temporary
or permanent global Security issued pursuant to this Indenture shall be in
the form established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted
by or pursuant to this Indenture or any indenture supplemental hereto 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 on which the Securities may be listed
or as may, consistently herewith, be determined by the officers executing
such Security or Coupon as evidenced by their execution of such Security or
Coupon. The Company shall provide any such legends or endorsements to the
Trustee in writing.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without
Coupons and shall not be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons 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 not inconsistent with the rules of any securities exchange on
which the Securities may be listed, all as determined by the officers of
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the Company executing such Securities or Coupons, as evidenced by their
execution of such Securities or Coupons.
Section 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 610, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: Bankers Trust Company, as Trustee
By ______________________________________
Authorized Signatory
Section 203. SECURITIES IN GLOBAL FORM.
If Securities of a series shall be issuable in global form, any
such Security may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series
(or such lesser amount as is permitted by the terms thereof) from time to
time endorsed thereon and may also provide that the aggregate amount of
Outstanding Securities represented thereby may from time to time be
increased or reduced to reflect exchanges. Any endorsement of any Security
in global form to reflect the amount, or any increase or decrease in the
amount, or changes in the rights of Holders, of Outstanding Securities
represented thereby shall be made in such manner and by such Person or
Persons as shall be specified therein or in the Company Order to be
delivered pursuant to Section 303 or 304 with respect thereto. Subject to
the provisions of Section 303 and, if applicable, Section 304, the Trustee
shall deliver and redeliver any Security in permanent global form in the
manner and upon instructions given by the Person or Persons specified
therein or in the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to a Security in global form shall
be in writing but need not be accompanied by or contained in an Officers'
Certificate and need not be accompanied by an Opinion of Counsel.
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ARTICLE THREE
THE SECURITIES
Section 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more series. The Securities shall be
subordinated in right of payment to Senior Indebtedness as provided in
Article Seventeen.
With respect to any Securities to be authenticated and delivered
hereunder, there 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,
(1) the title of such Securities and the series in which
such Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such series which
may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration or
transfer of, or in exchange for, or in lieu of, other Securities
of such series pursuant to Section 304, 305, 306, 905 or 1107,
upon repayment in part of any Registered Security of such series
pursuant to Article Thirteen, upon surrender in part of any
Registered Security for conversion into Common Stock or exchange
into other securities pursuant to its terms, or pursuant to the
terms of such Securities);
(3) whether such Securities are to be issuable as
Registered Securities, as Bearer Securities or alternatively as
Bearer Securities and Registered Securities, and whether the
Bearer Securities are to be issuable with Coupons, without
Coupons or both, and any restrictions applicable to the offer,
sale or delivery of the Bearer Securities and the terms, if any,
upon which Bearer Securities may be exchanged for Registered
Securities and vice versa;
(4) if any of such Securities are to be issuable in global
form, when any of such Securities are to be issuable in global
form and (i) whether beneficial owners of interests in any such
global Security may exchange such interest for Securities of the
same series and of like tenor and of any authorized form and
denomination, and the circumstances under which any such
exchanges may occur, if other than in the manner specified in
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Section 305, and (ii) the name of the Depository or the U.S.
Depository, as the case may be, with respect to any global
Security;
(5) if any of such Securities are to be issuable as Bearer
Securities or in global form, the date as of which any such
Bearer Security or global Security shall be dated (if other than
the date of original issuance of the first of such Securities to
be issued);
(6) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a
temporary Bearer Security in global form payable in respect of an
Interest Payment Date therefor prior to the exchange, if any, of
such temporary Bearer Security for definitive Securities shall be
paid to any clearing organization with respect to the portion of
such temporary Bearer Security held for its account and, in such
event, the terms and conditions (including any certification
requirements) upon which any such interest payment received by a
clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date;
(7) the date or dates, or the method or methods, if any, by
which such date or dates shall be determined, on which the
principal of such Securities is payable;
(8) the rate or rates at which such Securities shall bear
interest, if any, or the method or methods, if any, by which such
rate or rates are to be determined, the date or dates, if any,
from which such interest shall accrue or the method or methods,
if any, by which such date or dates are to be determined, the
Interest Payment Dates, if any, on which such interest shall be
payable and the Regular Record Date, if any, for the interest
payable on Registered Securities on any Interest Payment Date,
whether and under what circumstances Additional Amounts on such
Securities or any of them shall be payable, and the basis upon
which interest shall be calculated if other than that of a 360-
day year of twelve 30-day months;
(9) if in addition to or other than the City of Grand
Rapids, Michigan, the place or places where the principal of, any
premium and interest on or any Additional Amounts with respect to
such Securities shall be payable, any of such Securities that are
Registered Securities may be surrendered for registration of
transfer or exchange, any of such Securities may be surrendered
for conversion or exchange and notices or demands to or upon the
Company in respect of such Securities and this Indenture may be
served;
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(10) whether any of such Securities are to be redeemable at
the option of the Company and, if so, the date or dates on which,
the period or periods within which, the price or prices at which
and the other terms and conditions upon which such Securities may
be redeemed, in whole or in part, at the option of the Company;
(11) whether the Company is obligated to redeem or purchase
any of such Securities pursuant to any sinking fund or at the
option of any Holder thereof and, if so, the date or dates on
which the period or periods within which, the price or prices at
which and the other terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and any provisions for the
remarketing of such Securities so redeemed or purchased;
(12) the denominations in which any of such Securities that
are Registered Securities shall be issuable if other than
denominations of $1,000 and any integral multiple thereof, and
the denominations in which any of such Securities that are Bearer
Securities shall be issuable if other than the denomination of
$5,000;
(13) if other than the principal amount thereof, the portion
of the principal amount of any of such Securities that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the method by which such portion is to
be determined;
(14) if other than Dollars, the Currency in which payment of
the principal of, any premium or interest on or any Additional
Amounts with respect to any of such Securities shall be payable;
(15) if the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities are to
be payable, at the election of the Company or a Holder thereof or
otherwise, in a Currency other than that in which such Securities
are stated to be payable, the period or periods within which, and
the other terms and conditions upon which, such election may be
made, and the time and manner of determining the exchange rate
between the Currency in which such Securities are denominated or
stated to be payable and the Currency in which such Securities or
any of them are to be so paid pursuant to such election;
(16) whether the amount of payments of principal of, any
premium or interest on or any Additional Amounts with respect to
such Securities may be determined with reference to an index,
formula or other method (which index, formula or method or
methods may be based, without limitation, on one or more
Currencies, commodities, equity indices or other indices), and,
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if so, the terms and conditions upon which and the manner in
which such amounts shall be determined and paid or payable;
(17) whether the Securities of the series will be
convertible into shares of Common Stock and/or exchangeable for
other securities and, if so, the terms and conditions upon which
such Convertible Securities will be so convertible or
exchangeable, and any deletions from or modifications or
additions to this Indenture to permit or to facilitate the
issuance of such Convertible Securities or the administration
thereof;
(18) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company with respect to
any of such Securities, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants
set forth herein;
(19) whether any of such Securities of a series shall be
issuable as Original Issue Discount Securities;
(20) whether any of such Securities are to be issuable upon
the exercise of warrants and, if so, the time, manner and place
for such Securities to be authenticated and delivered;
(21) if any of such Securities are to be issuable in global
form and definitive form (whether upon original issue or upon
exchange of a temporary Security) only upon receipt of certain
certificates or other documents or satisfaction of other
conditions, then the form and terms of such certificates,
documents or conditions;
(22) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent or Authenticating Agent with respect to
such Securities; and
(23) any other terms of such Securities which the Company
may establish in accordance with Section 901.
All Securities of any one series and all Coupons, if any,
appertaining to Bearer Securities of such series shall be substantially
identical except as to Currency of payments due thereunder, denomination
and the rate or rates of interest (or method of determining any such rate),
if any, and Maturity, the date from which interest, if any, shall accrue
and except as may otherwise be provided by the Company in or pursuant to
the Board Resolution and set forth in the Officers' Certificate or in any
indenture or indentures supplemental hereto pertaining to such series of
Securities. All Securities of any one series need not be issued at the
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same time and, unless otherwise so provided by the Company, a series may be
reopened for issuances of additional Securities of such series or to
establish additional terms of such series of Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of
the Officers' Certificate setting forth the terms of such series.
Section 302. CURRENCY; DENOMINATIONS.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise
provided in or pursuant to this Indenture, Registered Securities
denominated in Dollars shall be issuable in registered form without Coupons
in denominations of $1,000 and any integral multiple thereof, and the
Bearer Securities denominated in Dollars shall be issuable in denominations
of $5,000. Securities not denominated in Dollars shall be issuable in such
denominations as are established with respect to such Securities in or
pursuant to this Indenture. If Securities are issued in any Currency other
than Dollars, the Company shall deliver to the Trustee an Officers'
Certificate setting forth the Dollar equivalent of such issuance.
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Securities shall be executed on behalf of the Company by its
Chairman of the Board, one of its Vice Chairmen, its President, its
Treasurer or one of its Vice Presidents and attested by its Secretary or
one of its Assistant Secretaries or by its Treasurer or one of its Assistant
Treasurers. Coupons shall be executed on behalf of the Company by any one of
its Vice Presidents, the Treasurer or any Assistant Treasurer of the Company.
The signature of any of these officers on the Securities or any Coupons
appertaining thereto may be manual or facsimile.
Securities and any Coupons appertaining thereto 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, together
with any Coupons appertaining thereto, executed by the Company, to the
Trustee for authentication and, provided that the Board Resolution and
Officers' Certificate or supplemental indenture or indentures with respect
to such Securities referred to in Section 301 and a Company Order for the
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authentication and delivery of such Securities have been delivered to the
Trustee, the Trustee in accordance with the Company Order and subject to
the provisions hereof and of such Securities shall authenticate and deliver
such Securities. In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities and any Coupons appertaining thereto, the Trustee shall be
entitled to receive, and (subject to Sections 315(a) through 315(d) of the
Trust Indenture Act) shall be fully protected in relying upon,
(i) an Opinion of Counsel stating to the effect:
(a) that the form or forms and terms of such
Securities and Coupons, if any, have been established in
conformity with the provisions of this Indenture;
(b) that all conditions precedent to the
authentication and delivery of such Securities and Coupons,
if any, appertaining thereto have been complied with and
that such Securities and Coupons, when completed by
appropriate insertions and executed and delivered by the
Company to the Trustee for authentication pursuant to this
Indenture, and 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 legally valid and binding obligations of the
Company, enforceable against the Company in accordance with
their terms, subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other
similar laws affecting the enforcement of creditors' rights
generally, and subject to general principles of equity
(regardless of whether enforcement is sought in a proceeding
in equity or at law) and will entitle the Holders thereof to
the benefits of this Indenture; such Opinion of Counsel need
express no opinion as to the availability of equitable
remedies;
(c) that all laws and requirements in respect of the
execution and delivery by the Company of such Securities and
Coupons, if any, have been complied with; and
(d) as to such other matters as the Trustee may
reasonably request; and
(ii) an Officers' Certificate stating that, to the best
knowledge of the Persons executing such certificate, no event
which is, or after notice or lapse of time would become, an Event
of Default with respect to any of the Securities shall have
occurred and be continuing.
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If all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Opinion of Counsel and an
Officers' Certificate at the time of issuance of each Security, but such
opinion and certificate, with appropriate modifications, shall be delivered
at or before the time of issuance of the first Security of such series.
After any such first delivery, any separate request by the Company that the
Trustee authenticate Securities of such series for original issue will be
deemed to be a certification by the Company that all conditions precedent
provided for in this Indenture relating to authentication and delivery of
such Securities continue to have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any 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 or if the
Trustee, being advised by counsel, determines that such action may not
lawfully be taken.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any temporary Bearer Security in
global form shall be dated as of the date specified in or pursuant to this
Indenture.
No Security or Coupon appertaining thereto 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 in Section 202 or 610 executed by or
on behalf of the Trustee or by the Authenticating Agent by the manual
signature of one of its authorized officers or by Authenticating Agent.
Such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 306 or 307, the Trustee shall
not authenticate and deliver any Bearer Security unless all Coupons
appertaining thereto then matured have been detached and canceled.
Section 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order, the Trustee
shall authenticate and deliver, in the manner provided in Section 303,
temporary Securities in lieu thereof which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in
lieu of which they are issued, in registered form or, if authorized in or
pursuant to this Indenture, in bearer form with one or more Coupons or
without Coupons and with such appropriate insertions, omissions,
substitutions and other variations as the officers of the Company executing
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such Securities may determine, as conclusively evidenced by their execution
of such Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form, which
shall be exchanged in accordance with the provisions thereof, if temporary
Securities are issued, the Company shall cause definitive Securities to be
prepared without unreasonable delay. After the preparation of definitive
Securities of the same series and containing terms and provisions that are
identical to those of any temporary Securities, such temporary Securities
shall be exchangeable for such definitive Securities upon surrender of such
temporary Securities at an Office or Agency for such Securities, without
charge to any Holder thereof. Upon surrender for cancellation of any one
or more temporary Securities (accompanied by any unmatured Coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations of the same series and
containing identical terms and provisions; PROVIDED, HOWEVER, that no
definitive Bearer Security, except as provided in or pursuant to this
Indenture, shall be delivered in exchange for a temporary Registered
Security; and PROVIDED, FURTHER, that a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only in compliance
with the conditions set forth in or pursuant to this Indenture. Unless
otherwise provided in or pursuant to this Indenture with respect to a
temporary global Security, 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 305. REGISTRATION, TRANSFER AND EXCHANGE.
With respect to the Registered Securities of each series, if any,
the Company shall cause to be kept a register (each such register being
herein sometimes referred to as the "Security Register") for such series at
the Office or Agency of the Company in the City of Grand Rapids, Michigan,
or at such other Office or Agency as may be maintained for such purpose, in
which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of the Registered Securities of
such series and of transfers of the Registered Securities of such series.
In the event that the Trustee shall not be the Security Registrar, it shall
have the right to examine the Security Register at all reasonable times.
The Company is hereby initially appointed as Security Registrar for each
series of Securities. In the event that the Trustee is not the Security
Registrar with respect to a series of Securities, it shall have the right
to examine the Security Register for such series at all reasonable times.
Upon surrender for registration of transfer of any Registered
Security of any series at any Office or Agency for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Registered
Securities of the same series denominated as authorized in or pursuant to
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this Indenture, of a like aggregate principal amount bearing a number not
contemporaneously outstanding and containing identical terms and
provisions.
At the option of the Holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series
containing identical terms and provisions, in any authorized denominations,
and of a like aggregate principal amount, upon surrender of the Securities
to be exchanged at any Office or Agency for such series. Whenever any
Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, or shall cause the
Authenticating Agent to authenticate and deliver, the Registered Securities
which the Holder making the exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of
such series may be exchanged for Registered Securities of such series
containing identical terms, denominated as authorized in or pursuant to
this Indenture and in the same aggregate principal amount, upon surrender
of the Bearer Securities to be exchanged at any Office or Agency for such
series, with all unmatured Coupons and all matured Coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to
produce any such unmatured Coupon or Coupons or matured Coupon or Coupons
in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company and the Trustee
in an amount equal to the face amount of such missing Coupon or Coupons, or
the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Bearer Security shall surrender
to any Paying Agent any such missing Coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; PROVIDED, HOWEVER, that, except as otherwise
provided in Section 1002, interest represented by Coupons shall be payable
only upon presentation and surrender of those Coupons at an Office or
Agency for such series located outside the United States. Notwithstanding
the foregoing, in case a Bearer Security of any series is surrendered at
any such Office or Agency for such series in exchange for a Registered
Security of such series and like tenor after the close of business at such
Office or Agency on (i) any Regular Record Date and before the opening of
business at such Office or Agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such
Office or Agency on the related date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the Coupon relating to
such Interest Payment Date or proposed date of payment, as the case may be
(or, if such Coupon is so surrendered with such Bearer Security, such
Coupon shall be returned to the Person so surrendering the Bearer
Security), and interest or Defaulted Interest, as the case may be, shall
not be payable on such Interest Payment Date or proposed date for payment,
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as the case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but shall be payable only to the Holder
of such Coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are surrendered for exchange as
contemplated by the immediately preceding two paragraphs, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as Depository and a successor depository
is not appointed by the Company within 60 days of the date the Company is
so informed in writing, (ii) the Company executes and delivers to the
Trustee a Company Order to the effect that such global Security shall be so
exchangeable, or (iii) an Event of Default has occurred and is continuing
with respect to the Securities. If the beneficial owners of interests in a
global Security are entitled to exchange such interests for definitive
Securities, then without unnecessary delay but in any event not later than
the earliest date on which such interests may be so exchanged, the Company
shall deliver to the Trustee definitive Securities in such form and
denominations as are required by or pursuant to this Indenture, and of the
same series, containing identical terms and in aggregate principal amount
equal to the principal amount of, such global Security, executed by the
Company. On or after the earliest date on which such interests may be so
exchanged, such global Security shall be surrendered from time to time by
the U.S. Depository or such other Depository as shall be specified in the
Company Order with respect thereto, and in accordance with instructions
given to the Trustee and the U.S. Depository or such other Depository, as
the case may be (which instructions shall be in writing but need not be
contained in or accompanied by an Officers' Certificate or be accompanied
by an Opinion of Counsel), as shall be specified in the Company Order with
respect thereto to the Trustee, as the Company's agent for such purpose, to
be exchanged, in whole or in part, for definitive Securities as described
above without charge. The Trustee shall authenticate and make available
for delivery, in exchange for each portion of such surrendered global
Security, a like aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such global Security to be exchanged, which (unless such Securities are not
issuable both as Bearer Securities and as Registered Securities, in which
case the definitive Securities exchanged for the global Security shall be
issuable only in the form in which the Securities are issuable, as provided
in or pursuant to this Indenture) shall be in the form of Bearer Securities
or Registered Securities, or any combination thereof, as shall be specified
by the beneficial owner thereof but subject to the satisfaction of any
certification or other requirements to the issuance of Bearer Securities;
PROVIDED, HOWEVER, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of
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Securities of the same series and containing identical terms to be redeemed
and ending on the relevant Redemption Date; and PROVIDED, FURTHER, that
(unless otherwise provided in or pursuant to this Indenture) no Bearer
Security delivered in exchange for a portion of a global Security shall be
mailed or otherwise delivered to any location in the United States.
Promptly following any such exchange in part, such global Security shall be
returned by the Trustee to such Depository or the U.S. Depository, as the
case may be, or such other Depository or U.S. Depository referred to above
in accordance with the instructions of the Company referred to above. If a
Registered Security is issued in exchange for any portion of a global
Security after the close of business at the Office or Agency for such
Security where such exchange occurs on or after (i) any Regular Record Date
for such Security and before the opening of business at such Office or
Agency on the next Interest Payment Date, or (ii) any Special Record Date
for such Security and before the opening of business at such Office or
Agency on the related proposed date for payment of interest or Defaulted
Interest, as the case may be, interest shall not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but shall be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such global Security
shall be payable in accordance with the provisions of this Indenture.
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 entitling the Holders thereof to the same
benefits under this Indenture as the Securities surrendered upon such
registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so
required by the Company or the Security Registrar for such Security) be
duly endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar for such
Security 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, or redemption 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, other than exchanges pursuant to Section 304, 905
or 1107 not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture,
the Company shall not be required (i) to issue, register the transfer of or
exchange any Securities during a period beginning at the opening of
business 15 days before the date notice is given of the redemption of
Securities of the same series under Section 1103 and ending at the close of
business on the day of such selection, or (ii) to register the transfer of
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or exchange any Registered Security so selected for redemption in whole or
in part, except in the case of any Security to be redeemed in part, the
portion thereof not to be redeemed, or (iii) to exchange any Bearer
Security so selected for redemption except, to the extent provided with
respect to such Bearer Security, that such Bearer Security may be exchanged
for a Registered Security of like tenor and the same series, provided that
such Registered Security shall be immediately surrendered for redemption
with written instruction for payment consistent with the provisions of this
Indenture, or (iv) to issue, register the transfer of or exchange any
Security which, in accordance with its terms, has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions
of this Section 306, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same
series containing identical terms and of like principal amount and bearing
a number not contemporaneously outstanding, with Coupons appertaining
thereto corresponding to the Coupons, if any, appertaining to the
surrendered Security.
If there be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or Coupon, and (ii) such security or indemnity as may be required
by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such
Security or Coupon has been acquired by a bona fide purchaser, the Company
shall execute and, upon the Company's request, the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Security or in exchange for the Security to which
a destroyed, lost or stolen Coupon appertains with all appurtenant Coupons
not destroyed, lost or stolen, a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the Coupons,
if any, appertaining to such destroyed, lost or stolen Security or to the
Security to which such destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306, in
case any mutilated, destroyed, lost or stolen Security or Coupon 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 or Coupon; PROVIDED,
HOWEVER, that payment of principal of, any premium or interest on or any
Additional Amounts with respect to any Bearer Securities shall, except as
otherwise provided in Section 1002, be payable only at an Office or Agency
for such Securities located outside the United States and, unless otherwise
provided in or pursuant to this Indenture, any interest on Bearer
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Securities and any Additional Amounts with respect to such interest shall
be payable only upon presentation and surrender of the Coupons appertaining
thereto.
Upon the issuance of any new Security under this Section 306, 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, with any Coupons appertaining thereto issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen Coupon
appertains shall constitute a separate obligation of the Company, whether
or not the destroyed, lost or stolen Security and Coupons appertaining
thereto or the destroyed, lost or stolen Coupon 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
such series and any Coupons, if any, duly issued hereunder.
The provisions of this Section 306, as amended or supplemented
pursuant to this Indenture with respect to particular Securities or
generally, shall be 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 or Coupons.
Section 307. PAYMENT OF INTEREST AND CERTAIN ADDITIONAL
AMOUNTS; RIGHTS TO INTEREST AND CERTAIN ADDITIONAL
AMOUNTS PRESERVED.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered
Security which shall be payable, and are punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name
such Security (or one or more Predecessor Securities) is registered as of
the close of business on the Regular Record Date for such interest. Unless
otherwise provided in or pursuant to this Indenture, in case a Bearer
Security is surrendered in exchange for a Registered Security after the
close of business at an Office or Agency for such Security on any Regular
Record Date therefor and before the opening of business at such Office or
Agency on the next succeeding Interest Payment Date therefor, such Bearer
Security shall be surrendered without the Coupon relating to such Interest
Payment Date and interest shall not be payable on such Interest Payment
Date in respect of the Registered Security issued in exchange for such
Bearer Security, but shall be payable only to the Holder of such Coupon
when due in accordance with the provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered
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Security which shall be payable, but shall not be punctually paid or duly
provided for, on any Interest Payment Date for such Registered Security
(herein called "Defaulted Interest") shall forthwith cease to be payable to
the Holder thereof 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 Person in whose name such Registered Security (or
a Predecessor Security thereof) shall be registered at the close
of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on such Registered
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 on or prior to the
date of the proposed payment, such Money when so deposited to be
held in trust for the benefit of the Person entitled to such
Defaulted Interest as in this Clause provided. Thereupon, the
Company 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 Company shall promptly
notify the Trustee in writing of such Special Record Date and the
Trustee, 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 the Holder of such Registered Security (or a
Predecessor Security thereof) at his address as it appears in the
Security 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 an Authorized Newspaper 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 Person in whose name such
Registered Security (or a Predecessor Security thereof) shall be
registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following Clause
(2). In case a Bearer Security is surrendered at the Office or
Agency for such Security in exchange for a Registered Security
after the close of business at such Office or Agency on any
Special Record Date and before the opening of business at such
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Office or Agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered
without the Coupon relating to such Defaulted Interest and
Defaulted Interest shall not be payable on such proposed date of
payment in respect of the Registered Security issued in exchange
for such Bearer Security, but shall be payable only to the Holder
of such Coupon when due in accordance with the provisions of this
Indenture.
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Security may be listed,
and upon such notice as may be required by such exchange, if,
after written 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.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company, interest on Registered Securities
that bear interest may be paid by mailing a check to the address of the
person entitled thereto as such address shall appear in the Security
Register or by transfer to an account maintained by the payee with a bank
located in the United States, PROVIDED, HOWEVER, that the Trustee shall
have received written wire instructions by no later than the Regular Record
Date for the relevant payment date.
Subject to the foregoing provisions of this Section and Section
305, 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.
In the case of any Convertible Security which is converted after
any Regular Record Date and on or prior to the next succeeding Interest
Payment Date (other than any Convertible Security whose Maturity is prior
to such Interest Payment Date), interest whose Stated Maturity is on such
Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest (whether or not
punctually paid or duly provided for) shall be paid to the Person in whose
name such Convertible Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the
case of any Convertible Security which is converted, interest whose Stated
Maturity is after the date of conversion of such Security shall not be
payable.
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Section 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered 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 such Registered
Security is registered in the Security Register as the owner of such
Registered Security for the purpose of receiving payment of principal of,
any premium and (subject to Sections 305 and 307) interest on and any
Additional Amounts with respect to such Registered Security and for all
other purposes whatsoever, whether or not any payment with respect to such
Registered Security shall 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.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security or the bearer of any
Coupon as the absolute owner of such Security or Coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not any payment with respect to such Security or
Coupon shall be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any global Security held
on its behalf by a Depository shall have any rights under this Indenture
with respect to such global Security, and such Depository may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
owner of such global Security for all purposes whatsoever. None of the
Company, the Trustee, any Paying Agent or the Security Registrar will have
any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of a global
Security or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
Section 309. CANCELLATION.
All Securities and Coupons surrendered for payment, redemption,
repayment, conversion, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee, and any such Securities and
Coupons, as well as Securities and Coupons surrendered directly to the
Trustee for any such purpose, shall be canceled promptly by the Trustee.
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 canceled promptly 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 or pursuant to
this Indenture. All canceled Securities and Coupons held by the Trustee
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shall be destroyed by the Trustee and the Trustee shall deliver to the
Company a certificate of destruction.
Section 310. COMPUTATION OF INTEREST.
Except as otherwise provided in or pursuant to this Indenture or
any Security, interest on the Securities shall be computed on the basis of
a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. SATISFACTION AND DISCHARGE.
Upon the direction of the Company by a Company Order, this
Indenture shall cease to be of further effect with respect to any series of
Securities specified in such Company Order and any Coupons appertaining
thereto, and the Trustee, on receipt of a Company Order, at the expense of
the Company, shall execute a written instrument, satisfactory in form and
substance to the Company and the Trustee, acknowledging satisfaction and
discharge of this Indenture as to such series, when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all Coupons appertaining
thereto (other than (i) Coupons appertaining to Bearer
Securities of such series surrendered in exchange for
Registered Securities of such series and maturing after such
exchange whose surrender is not required or has been waived
as provided in Section 305, (ii) Securities and Coupons of
such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306,
(iii) Coupons appertaining to Securities of such series
called for redemption and maturing after the relevant
Redemption Date whose surrender has been waived as provided
in Section 1106, and (iv) Securities and Coupons 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 Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of
(i) or (ii) below, any Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
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(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the
Company, 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 (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose, Money in an amount
sufficient to pay and discharge the entire indebtedness on
such Securities and any Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation,
including the principal of, any premium and interest on, and
any Additional Amounts with respect to such Securities and
any Coupons appertaining thereto, to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Maturity thereof, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company with respect to the
Outstanding Securities of such series and any Coupons
appertaining thereto; 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 as to such series
have been complied with.
In the event there are Securities of two or more series
hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if
requested in writing to do so with respect to Securities of such series as
to which it is Trustee and if the other conditions thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to any series of Securities, the obligations of the Company to
the Trustee under Section 605 and, if Money shall have been deposited with
the Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Company and the Trustee under Sections 305, 306, 402,
1002 and 1003, with respect to payment of Additional Amounts, if any, with
respect to such Securities as contemplated by Section 1004 (but only to the
extent that the Additional Amounts payable with respect to such Securities
exceed the amount deposited in respect of such Additional Amounts pursuant
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to Section 401(1)(B)), and with respect to any rights to convert or
exchange such Securities into Common Stock or other securities shall
survive.
Section 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the penultimate paragraph of Section
1003, all Money and Government Obligations deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the Coupons 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, premium,
interest and Additional Amounts for whose payment such Money has or
Government Obligations have been deposited with or received by the Trustee;
but such Money and Government Obligations need not be segregated from other
funds except to the extent required by law. All Money or Government
Obligations deposited with the Trustee pursuant to Section 401 (and held by
the Trustee or any Paying Agent) for the payment of Securities subsequently
converted shall be returned to the Company upon receipt by the Trustee of a
Company Request.
ARTICLE FIVE
REMEDIES
Section 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to
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), unless such event is specifically
deleted or modified in or pursuant to the supplemental indenture, Board
Resolution or Officers' Certificate establishing the terms of such
Securities pursuant to this Indenture:
(1) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the
Company or any Principal Constituent Bank in an involuntary
proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law and such decree or order
shall remain unstayed and in effect for a period of 60
consecutive days; or
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(b) a decree or order adjudging the Company or any
Principal Constituent Bank to be insolvent, or approving a
petition seeking reorganization, arrangement, adjustment or
composition of the Company or any Principal Constituent Bank
and such decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
(c) a final and non-appealable order appointing a
custodian, receiver, liquidator, assignee, trustee or other
similar official of the Company or any Principal Constituent
Bank or of any substantial part of the property of the
Company or any Principal Constituent Bank, as the case may
be, or ordering the winding up or liquidation of the affairs
of the Company or any Principal Constituent Bank; or
(2) the commencement by the Company or any Principal
Constituent Bank of a voluntary proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law or of
a voluntary proceeding seeking to be adjudicated insolvent or the
consent by the Company or any Principal Constituent Bank to the
entry of a decree or order for relief in an involuntary
proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
insolvency proceedings against it, or the filing by the Company
or any Principal Constituent Bank of a petition or answer or
consent seeking reorganization or relief under any applicable
law, or the consent by the Company or any Principal Constituent
Bank to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee or similar official of the Company or any Principal
Constituent Bank or any substantial part of the property of the
Company or any Principal Constituent Bank or the making by the
Company or any Principal Constituent Bank of an assignment for
the benefit of creditors, or the taking of corporate action by
the Company or any Principal Constituent Bank in furtherance of
any such action; or
(3) any other Event of Default applicable to the Securities
of such series pursuant to this Indenture.
Section 502. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
If an Event of Default with respect to Securities of any series
at the time Outstanding occurs and is continuing, then the Trustee or the
Holders of not less than 25 percent in principal amount of the Outstanding
Securities of such series may declare the principal of all the Securities
of such series, or such lesser amount as may be provided for in the
Securities of such series, to be due and payable immediately, by a notice
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in writing to the Company (and to the Trustee if given by the Holders), and
upon any such declaration such principal or such lesser amount shall 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 not less than a
majority in principal amount of the Outstanding Securities of such 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 of Money sufficient to pay
(A) all overdue installments of any interest on and
Additional Amounts with respect to all Securities of such
series and any Coupon appertaining thereto,
(B) the principal of and any premium on any Securities
of such series which have become due otherwise than by such
declaration of acceleration and interest thereon and any
Additional Amounts with respect thereto at the rate or rates
borne by or provided for in such Securities,
(C) to the extent that payment of such interest or
Additional Amounts is lawful, interest upon overdue
installments of any interest and Additional Amounts at the
rate or rates borne by or provided for in such Securities,
and
(D) 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
(2) all Events of Default with respect to Securities of
such series shall have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on or any Additional Amounts with respect to any
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Security or any Coupon appertaining thereto when such interest or
Additional Amounts shall have become 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
any premium on any Security at its Maturity,
the Company shall, upon written demand of the Trustee, pay to the Trustee,
for the benefit of the Holders of such Securities and any Coupons
appertaining thereto, the whole amount of Money then due and payable with
respect to such Securities and any Coupons appertaining thereto, with
interest upon the overdue principal, any premium and, to the extent that
payment of such interest shall be legally enforceable, upon any overdue
installments of interest and Additional Amounts at the rate or rates borne
by or provided for in such Securities, and, in addition thereto, such
further amount of Money as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay the Money it is required to pay the
Trustee pursuant to the preceding paragraph forthwith upon the demand of
the Trustee, the Trustee, in its own name, and as trustee of an express
trust, may institute a judicial proceeding for the collection of the Money
so due and unpaid, and may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other obligor
upon such Securities and any Coupons appertaining thereto and collect the
Moneys adjudged or decreed to be payable in the manner provided by law out
of the property of the Company or any other obligor upon such Securities
and any Coupons appertaining thereto, 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 and any Coupons appertaining thereto 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 such Securities or in aid of the
exercise of any power granted herein or therein, or to enforce any other
proper remedy.
Section 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any
other obligor upon the Securities or the property of the Company or such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
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Trustee shall have made any demand on the Company for the payment of any
overdue principal, premium, interest or Additional Amounts) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such
series, of the principal and any premium, interest and Additional
Amounts owing and unpaid in respect of such Securities and any
Coupons appertaining thereto and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents or counsel) and of the Holders of such
Securities or any Coupons allowed in such judicial proceeding,
and
(ii) to collect and receive any Monies or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder of Securities or any Coupons to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders of Securities or any Coupons, to pay
to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel
and any other amounts due the Trustee under Section 605.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder of a
Security or any Coupon any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or Coupons or the rights of any
Holder thereof or to authorize the Trustee to vote in respect of the claim
of any Holder of a Security or any Coupon in any such proceeding.
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS.
All rights of action and claims under this Indenture or any of
the Securities or Coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or Coupons 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 or judgment, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, shall be for the ratable
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benefit of each and every Holder of a Security or Coupon in respect of
which such judgment has been recovered.
Section 506. APPLICATION OF MONEY COLLECTED.
Subject to Article Seventeen, any Money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
Money on account of principal, or any premium, interest or Additional
Amounts, upon presentation of the Securities or Coupons, or both, as the
case may be, 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 605;
SECOND: To the payment of the amounts then due and unpaid
upon the Securities and any Coupons for principal and any
premium, interest and Additional Amounts 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
aggregate amounts due and payable on such Securities and Coupons
for principal and any premium, interest and Additional Amounts,
respectively; and
THIRD: The balance, if any, to the Person or Persons
entitled thereto.
Section 507. LIMITATIONS ON SUITS.
No Holder of any Security of any series or any Coupons
appertaining thereto shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default or other default
hereunder or under the related Security with respect to the
Securities of such series;
(2) the Holders of not less than 25 percent in principal
amount of the Outstanding Securities of such series shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default or default in its own name as
Trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of such 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 of, any
provision of this Indenture or any Security to affect, disturb or prejudice
the rights of any other such Holders or Holders of Securities of any other
series, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL AND ANY PREMIUM, INTEREST AND ADDITIONAL
AMOUNTS.
Notwithstanding any other provision in this Indenture, the Holder
of any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and
(subject to Sections 305 and 307) interest on, and any Additional Amounts
with respect to such Security or payment of such Coupon, as the case may
be, on the respective Stated Maturity or Stated Maturities therefor
specified in such Security or Coupon (or, in the case of redemption, on the
Redemption Date or, in the case of repayment at the option of such Holder
if provided in or pursuant to this Indenture, on the date such repayment is
due), and the right to convert any Convertible Security in accordance with
Article Sixteen, and to institute suit for the enforcement of any such
payment and right to convert, and such rights shall not be impaired without
the consent of such Holder.
Section 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security or a Coupon has
instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case the Company, the Trustee and each such Holder
shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and
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thereafter all rights and remedies of the Trustee and each such Holder
shall continue as though no such proceeding had been instituted.
Section 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons in
the last paragraph of Section 306, no right or remedy herein conferred upon
or reserved to the Trustee or to each and every Holder of a Security or a
Coupon is intended to be exclusive of any other right or remedy, and every
right and remedy, to the extent permitted by law, shall 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, to
the extent permitted by law, prevent the concurrent assertion or employment
of any other appropriate right or remedy.
Section 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Security or Coupon to exercise any right or remedy accruing upon any Event
of Default or other defaults hereunder or under the related Security shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to any Holder of a
Security or a Coupon may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by such Holder, as the case may
be.
Section 512. CONTROL BY HOLDERS OF SECURITIES.
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 and any Coupons appertaining
thereto, provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture or with the Securities of any
series,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction,
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(3) such direction is not unduly prejudicial to the rights
of the other Holders of Securities of such series not joining in
such action, and
(4) such direction shall not, in the reasonable opinion of
the Trustee, expose the Trustee to personal liability.
Section 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series on behalf of the Holders of all
the Securities of such series and any Coupons appertaining thereto may
waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of, any premium or
interest on, or any Additional Amounts with respect to any
Security of such series or any Coupons appertaining thereto, or
(2) in the conversion of any Convertible Securities
pursuant to the terms thereof, or
(3) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants that (to the extent that it may lawfully do
so) 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
expressly waives (to the extent that it may lawfully do so) 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.
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Section 515. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any
Security or Coupon 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, 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; PROVIDED, HOWEVER, that
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 percent 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 on or any Additional Amounts in respect of any Security
on or after the Stated Maturity or Stated Maturities expressed in such
Security or in the Coupons, if any, for such interest (or, in the case of
redemption, on or after the Redemption Date or, in the case of repayment,
on or after the Repayment Date) or for enforcement of its right to convert
Convertible Securities pursuant to the terms thereof .
ARTICLE SIX
THE TRUSTEE
Section 601. CERTAIN RIGHTS OF TRUSTEE.
Subject to Sections 315(a) through 315(d) of the Trust Indenture
Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties, and the Trustee need
not investigate any fact or matter stated in the document;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or a Company Order (in
each case, other than delivery of any Security, together with any Coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
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(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 shall be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the Holders of Securities of any series or
any Coupons appertaining thereto pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine, during business hours and
upon reasonable notice, the books, records and premises of the Company,
personally or by agent or attorney; and
(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
willful misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 602. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any Coupons 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 or the Coupons, except that the Trustee
represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility
on Form T-1 supplied to the Company are true and accurate, subject to the
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qualifications set forth therein. Neither the Trustee nor any
Authenticating Agent shall be (i) accountable for the use or application by
the Company of the Securities or the proceeds thereof, (ii) accountable for
any Money paid to the Company, or upon the Company's direction, if made
under and in accordance with any provision of this Indenture, and (iii),
responsible for the use or application of any Money received by any Paying
Agent who is not the Trustee.
Section 603. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other Person that may be an agent of the Company,
in its individual or any other capacity, may become the owner or pledgee of
Securities or Coupons and, subject to Sections 310(b) and 311 of the Trust
Indenture Act, may otherwise deal with the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other Person.
Section 604. 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 and shall
be held uninvested. 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 605. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder
(which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to the
Trustee's willful misconduct, negligence or bad faith; and
(3) to indemnify the Trustee and each of its officers,
directors, attorneys-in-fact and agents for, and to hold each
such Person harmless against, any loss, claim, liability or
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expense incurred without willful misconduct, negligence or bad
faith on such Person's part, arising out of or in connection with
the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending
themselves against any claim or liability, and of complying with
any process served on any of them, in connection with the
exercise or performance of any of their powers or duties
hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities
of any series upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the payment of principal of, and
premium or interest on or any Additional Amounts with respect to Securities
or any Coupons appertaining thereto. Such obligations and lien shall
survive the satisfaction and discharge of this Indenture and any rejection
of this Indenture by any bankruptcy court.
If the Trustee incurs expenses or renders services after the
occurrence of an Event of Default, the parties hereto and each Holder, by
each such Holder's acceptance of any Security or Coupon, hereby agree that
the expenses and the compensation for services are intended to constitute
expenses of administration to the extent enforceable under any applicable
bankruptcy law.
Section 606. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY;
CONFLICTING INTEREST.
There shall at all times be a Trustee hereunder that is a
Corporation organized and doing business under the laws of the United
States of America, any state thereof, or the District of Columbia, eligible
under Section 310(a)(1) of the Trust Indenture Act to act as trustee under
an indenture qualified under the Trust Indenture Act and that has a
combined capital and surplus (computed in accordance with Section 310(a)(2)
of the Trust Indenture Act) of at least $50,000,000, subject to supervision
or examination by Federal or state authority. 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. If the Trustee has or shall acquire
any conflicting interest, as defined in Section 310(b) of the Trust
Indenture Act, with respect to the Securities of any series, the Trustee
shall take such action as is required pursuant to said Section 310(b).
Section 607. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
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until the acceptance of appointment by the successor Trustee pursuant to
Section 608.
(b) 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 the instrument of acceptance by a successor Trustee required
by Section 608 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may,
at the expense of the Company, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to such series.
(c) 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 the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the obligations
imposed upon it under Section 310(b) of the Trust Indenture Act
with respect to Securities of any series after written request
therefor by the Company or any Holder of a Security of such
series who has been a bona fide Holder of a Security of such
series for at least six months, unless the Trustee's duty to
resign is stayed as provided in this Section, or
(2) the Trustee shall cease to be eligible under Section
606 and shall fail to resign after written request therefor by
the Company or any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board
Resolution, may remove the Trustee with respect to all Securities or the
Securities of such series, or (ii) subject to Section 315(e) of the Trust
Indenture Act, any Holder of a Security who has been a bona fide Holder of
a 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 the Trustee with respect to all Securities
of such series and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the Company,
by or pursuant to a Board Resolution, shall promptly appoint a successor
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Trustee or Trustees with respect to the Securities of that or those series
(it being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of
any particular series) and shall comply with the applicable requirements of
Section 608. 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 in accordance with the applicable requirements of Section 608,
become the successor Trustee with respect to the Securities of such series
and to that extent 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 of
Securities and accepted appointment in the manner required by Section 608,
any Holder of a Security who has been a bona fide Holder of a 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 Securities of
such series.
(f) 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 Registered Securities, if any, of such
series as their names and addresses appear in the Security Register and, if
Securities of such series are issued as Bearer Securities, by publishing
notice of such event once in an Authorized Newspaper in each Place of
Payment located outside the United States. 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 608. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) Upon the appointment hereunder of any successor Trustee with
respect to all Securities, such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and 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 hereunder of the retiring
Trustee; but, on the written request of the Company or such successor
Trustee, such retiring Trustee, upon payment of its charges, shall execute
and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and, subject to Section
1003, shall duly assign, transfer and deliver to such successor Trustee all
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property and Money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 605.
(b) Upon the appointment hereunder of any successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and such successor Trustee 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,
such 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, 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 that no Trustee shall be responsible for any notice given to, or
received by, or any act or failure to act on the part of any other Trustee
hereunder, 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, such retiring Trustee shall have
no further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates other than as hereinafter
expressly set forth, 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 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 such successor Trustee, such retiring
Trustee, upon payment of its charges with respect to the Securities of that
or those series to which the appointment of such successor relates and
subject to Section 1003 shall duly assign, transfer and deliver to such
successor Trustee, to the extent contemplated by such supplemental
indenture, the 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.
(c) Upon request of any Person appointed hereunder as a
successor Trustee, the Company shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor
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Trustee all such rights, powers and trusts referred to in paragraph (a) or
(b) of this Section, as the case may be.
(d) No Person shall accept its appointment hereunder as a
successor Trustee unless at the time of such acceptance such successor
Person shall be qualified and eligible under this Article.
Section 609. 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 otherwise be qualified and
eligible under this Article Six, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated but not delivered by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 610. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint one or more Authenticating Agents
acceptable to the Company with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of that or those series issued upon original issue, exchange,
registration of transfer, partial redemption or repayment, partial
conversion or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication
and delivery on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and,
except as provided in or pursuant to this Indenture, shall at all times be
a corporation that would be permitted by the Trust Indenture Act to act as
trustee under an indenture qualified under the Trust Indenture Act, is
authorized under applicable law, and by its charter to act as an
Authenticating Agent and has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
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$50,000,000. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any Corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any Corporation succeeding to all
or substantially all of the corporate agency or corporate trust business of
an Authenticating Agent, shall be the successor of such 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 30 days'
written notice thereof to the Trustee and 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 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 (i) mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Registered Securities, if any, of the
series with respect to which such Authenticating Agent shall serve, as
their names and addresses appear in the Security Register, and (ii) if
Securities of the series are issued as Bearer Securities, publish notice of
such appointment at least once in an Authorized Newspaper in the place
where such successor Authenticating Agent has its principal office if such
office is located outside the United States. 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 each Authenticating Agent from time to
time reasonable compensation for its services under this Section. If the
Trustee makes such payments, it shall be entitled to be reimbursed for such
payments, subject to the provisions of Section 605.
The provisions of Sections 308, 602 and 603 shall be applicable
to each Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or
more series of Securities pursuant to this Section, the Securities of such
series may have endorsed thereon, in addition to or in lieu of the
Trustee's certificate of authentication, an alternate certificate of
authentication in the following form:
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This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
Dated: Bankers Trust Company, As Trustee
By _______________________________________
As Authenticating Agent
By _______________________________________
Authorized Signatory
If all of the Securities of any series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested in
writing (which writing need not be accompanied by or contained in an
Officers' Certificate by the Company), shall appoint in accordance with
this Section an Authenticating Agent having an office in a Place of Payment
designated by the Company with respect to such series of Securities.
Section 611. NOTICE OF DEFAULT.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture
Act, notice of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; PROVIDED, HOWEVER, that, except in
the case of a default in the payment of the principal of (or premium, if
any) or interest on, or any Additional Amounts with respect to, any
Security of such series or in the payment of any sinking fund installment
with respect to Securities of such series, the Trustee shall be protected
in withholding such notice if and so long as the board of directors and/or
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of Securities
and Coupons of such series. 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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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company shall furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than 15 days after each Regular
Record Date for each series of Securities, or upon such other dates as are
set forth in or pursuant to the Board Resolution or indenture supplemental
hereto authorizing such series, a list, in each case in such form as the
Trustee may reasonably require, of the names and addresses of the Holders
as of the applicable date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to the
time such list is furnished,
PROVIDED, HOWEVER, that so long as the Trustee is the Security Registrar no
such list shall be required to be furnished.
Section 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS.
The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company,
the Trustee, nor any agent of either of them shall be held accountable by
reason of the disclosure of any such information as to the names and
addresses of the Holders of Securities in accordance with Section 312 of
the Trust Indenture Act, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
312(b) of the Trust Indenture Act.
Section 703. REPORTS BY TRUSTEE.
(a) Within 60 days after November 15 of each year commencing
with the first November 15 following the first issuance of Securities
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pursuant to Section 301, if required by Section 313(a) of the Trust
Indenture Act, the Trustee shall transmit, pursuant to Section 313(c) of
the Trust Indenture Act, a brief report dated as of such November 15 with
respect to any of the events specified in said Section 313(a) which may
have occurred since the later of the immediately preceding November 15 and
the date of this Indenture, but if no such event has occurred within such
period, no report need be transmitted.
(b) The Trustee shall transmit the reports required by Section
313(a) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and 313(d) of the
Trust Indenture Act.
Section 704. REPORTS BY COMPANY.
The Company, pursuant to Section 314(a) of the Trust Indenture
Act, shall:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to
either of said Sections, then it shall file with the Trustee and
the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
with respect to compliance by the Company, as the case may be,
with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
(3) transmit within 30 days after the filing thereof with
the Trustee, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, such summaries of any
information, documents and reports required to be filed by the
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Company pursuant to paragraphs (1) and (2) of this Section as may
be required by rules and regulations prescribed from time to time
by the Commission; and
(4) transmit to the Trustee, not less than annually, a
brief certificate from the principal executive officer, principal
financial officer or principal accounting officer as to such
officer's knowledge of the Company's compliance with all
conditions and covenants under the Indenture as determined
without regard to any period of grace or requirement of notice
provided under the Indenture.
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Company with or into any
other Person or Persons (whether or not affiliated with the Company), or
successive consolidations or mergers in which the Company or its successor
or successors shall be a party or parties, or shall prevent any conveyance,
transfer or lease of the property of the Company as an entirety or
substantially as an entirety to any other Person (whether or not affiliated
with the Company); PROVIDED, HOWEVER, that:
(1) in case the Company shall consolidate with or merge
into another Person or convey, transfer or lease its properties
and assets as an entirety or substantially as an entirety to any
Person, the entity 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 as an entirety or substantially as an entirety shall be
a Corporation organized and existing under the laws of the United
States of America, any state thereof or the District of Columbia
and shall expressly assume, by an indenture (or indentures, if at
such time there is more than one Trustee) supplemental hereto,
executed by the successor Person and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of
the principal of, any premium and interest on and any Additional
Amounts with respect to all the Securities and the performance of
every other obligation in this Indenture on the part of the
Company to be performed or observed and shall provide for
conversion or exchange rights in accordance with the terms of all
Convertible Securities;
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(2) immediately after giving effect to such transaction, no
event which is, or after notice or lapse of time (or both) would
become, an Event of Default shall have occurred and be
continuing; and
(3) either the Company or the successor Person shall have
delivered to the Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and any applicable supplemental
indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have
been complied with.
Section 802. SUCCESSOR PERSON SUBSTITUTED FOR COMPANY.
Upon any consolidation or merger or any conveyance, transfer or
lease of the properties and assets of the Company as an entirety or
substantially as an entirety to any Person in accordance with Section 801,
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 thereafter,
except in the case of a lease to another Person, the predecessor Person
shall be released from all obligations and covenants under this Indenture,
the Securities and the Coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders of Securities or Coupons, the
Company (when authorized by or pursuant to a Board Resolution) and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities (as shall be
specified in such supplemental indenture or indentures) or to
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surrender any right or power herein conferred upon the Company;
or
(3) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as
to principal, to change or eliminate any restrictions on the
payment of principal of, any premium or interest on or any
Additional Amounts with respect to Securities, to permit
Registered Securities to be exchanged for Bearer Securities, to
permit Bearer Securities to be exchanged for Bearer Securities of
other authorized denominations or to permit or facilitate the
issuance of Securities in uncertificated form, provided any such
action shall not adversely affect the interests of the Holders of
Securities of any series or any Coupons appertaining thereto in
any material respect; or
(4) to establish the form or terms of Securities of any
series and any Coupons appertaining thereto as permitted by
Sections 201 and 301; or
(5) 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
608; or
(6) to cure any ambiguity or 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
which shall not adversely affect the interests of the Holders of
Securities of any series then Outstanding or any Coupons
appertaining thereto in any material respect; or
(7) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or
purposes of issue, authentication and delivery of Securities, as
herein set forth; or
(8) to add any additional Events of Default with respect to
all or any series of Securities (as shall be specified in such
supplemental indenture); or
(9) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Article Four, PROVIDED that any such action shall not adversely
affect the interests of any Holder of a Security of such series
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and any Coupons appertaining thereto or any other Security or
Coupon in any material respect; or
(10) to secure the Securities; or
(11) to make any provisions with respect to the conversion
or exchange rights of Holders of Convertible Securities of any
series in addition to, or in lieu of, any provisions contained in
this Indenture; or
(12) to amend or supplement any provision contained herein
or in any supplemental indenture, PROVIDED that no such amendment
or supplement shall materially adversely affect the interests of
the Holders of any Securities then Outstanding.
Section 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding 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 or pursuant to 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 or of the Securities of such
series; PROVIDED, HOWEVER, that no such supplemental indenture, without the
consent of the Holder of each Outstanding Security affected thereby, shall:
(1) change the Stated Maturity of the principal of, or any
premium or installment of interest on or any Additional Amounts
with respect to, any Security, or reduce the principal amount
thereof or the rate (or manner of calculation of such rate) of
interest thereon or any Additional Amounts with respect thereto,
or any premium payable upon the redemption thereof or otherwise,
or change the obligation of the Company to pay Additional Amounts
pursuant to Section 1004 (except as contemplated by Section
801(1) and permitted by Section 901(1)), or reduce the amount of
the principal of an Original Issue Discount Security or an
Indexed Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502
or the amount thereof provable in bankruptcy pursuant to Section
504, or change any redemption provisions or adversely affect the
right of repayment at the option of any Holder as contemplated by
Article Thirteen, or change the Place of Payment, Currency in
which the principal of, any premium or interest on or any
Additional Amounts with respect to any Security 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
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case of redemption, on or after the Redemption Date or, in the
case of repayment at the option of the Holder, on or after the
date for repayment) or the rights of Holders of Convertible
Securities to effect conversion or exchange pursuant to the terms
thereof; 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 reduce the requirements of Section 1504 for quorum
or voting; or
(3) modify any of the provisions of this Indenture relating
to the subordination of the Securities in a manner adverse to
Holders of Securities, or
(4) modify any of the provisions of this Section, or
Section 513 or Section 1007, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby; or
(5) make any change that adversely affects the right to
convert or exchange any Convertible Security pursuant to the
terms thereof.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which shall have been included
expressly and solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of 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 of any other series.
It shall not be necessary for any Act of Holders of Securities
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
As a condition to executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trust created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Section 315 of the Trust
Indenture Act) shall be fully protected in relying upon, an Opinion of
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Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of a Security theretofore or thereafter
authenticated and delivered hereunder and of any Coupon appertaining
thereto shall be bound thereby.
Section 905. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of any series so modified as
to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
Section 906. EFFECT ON SENIOR INDEBTEDNESS.
No supplemental indenture shall directly or indirectly modify or
eliminate the provisions of Article Seventeen in any manner which might
terminate or impair the subordination of the Securities to Senior
Indebtedness without the prior written consent of the holders of the Senior
Indebtedness.
Section 907. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
Nine shall conform to the requirements of the Trust Indenture Act as then
in effect.
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ARTICLE TEN
COVENANTS
Section 1001. PAYMENT OF PRINCIPAL AND ANY PREMIUM, INTEREST AND
ADDITIONAL AMOUNTS.
The Company covenants and agrees for the benefit of the Holders
of the Securities of each series that it will duly and punctually pay the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities of such series in accordance with the terms
thereof, any Coupons appertaining thereto and this Indenture. Any interest
due on any Bearer Security on or before the Maturity thereof, and any
Additional Amounts payable with respect to such interest, shall be payable
only upon presentation and surrender of the Coupons appertaining thereto
for such interest as they severally mature.
Section 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for any
series of Securities an Office or Agency where Securities of such series
(but not Bearer Securities, except as otherwise provided below, unless such
Place of Payment is located outside the United States) may be presented or
surrendered for payment, where Securities of such series may be surrendered
for registration of transfer or exchange or conversion and where notices
and demands to or upon the Company in respect of the Securities of such
series relating thereto and this Indenture may be served. If Securities of
a series are issuable as Bearer Securities, the Company shall maintain,
subject to any laws or regulations applicable thereto, an Office or Agency
in a Place of Payment for such series which is located outside the United
States where Securities of such series and any Coupons appertaining thereto
may be presented and surrendered for payment; PROVIDED, HOWEVER, that if
the Securities of such series are listed on The Stock Exchange of the
United Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange
or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company shall maintain a Paying Agent
in London, Luxembourg or any other required city located outside the United
States, as the case may be, when and so long as the Securities of such
series are listed on such exchange. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of
such Office or Agency. If at any time the Company shall fail to maintain
any such required Office or Agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of such series and any Coupons appertaining
thereto may be presented and surrendered for payment at the place specified
for the purpose with respect to such Securities as provided in or pursuant
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to this Indenture and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect
to Bearer Securities shall be made at any Office or Agency in the United
States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
PROVIDED, HOWEVER, if amounts owing with respect to any Bearer Securities
shall be payable in Dollars, payment of principal of, any premium or
interest on and any Additional Amounts with respect to any such Security
may be made at the Office or Agency of the Company in the City of Grand
Rapids, Michigan, or any other Office or Agency designated by the Company
in the City of Grand Rapids, Michigan, if (but only if) payment of the full
amount of such principal, premium, interest or Additional Amounts at all
offices outside the United States maintained for such purpose by the
Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more
other Offices or Agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; 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 shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other Office or Agency. Unless otherwise provided in
or pursuant to this Indenture, the Company hereby designates as the Place
of Payment for each series (other than Bearer Securities) the City of Grand
Rapids, Michigan, and initially appoints the Office or Agency of the
Company for such purpose. Pursuant to Section 301(9) of this Indenture,
the Company may subsequently appoint a place or places in the City of Grand
Rapids, Michigan, where such Securities may be payable.
Section 1003. MONEY FOR SECURITIES 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 shall, on or before each due date
of the principal of, any premium or interest on or Additional Amounts with
respect to any of the Securities of such series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum of Money
sufficient to pay the principal or any premium, interest or Additional
Amounts so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and shall promptly notify the
Trustee in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to each due date of the
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principal of, any premium or interest on or any Additional Amounts with
respect to any Securities of such series, deposit with any Paying Agent a
sum of Money sufficient to pay the principal or any premium, interest or
Additional Amounts 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) the Company will promptly notify the Trustee in writing of its
action or failure so to act.
The Company shall cause each Paying Agent for any series of
Securities 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 shall:
(1) hold all sums held by it for the payment of the
principal of, any premium or interest on or any Additional
Amounts with respect to Securities of such 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 provided in
or pursuant to this Indenture;
(2) give the Trustee written notice of any default by the
Company (or any other obligor upon the Securities of such series)
in the making of any payment of principal, any premium or
interest on or any Additional Amounts with respect to the
Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same terms as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such Money.
Except as otherwise provided in or pursuant to this Indenture,
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, any premium or
interest on or any Additional Amounts with respect to any Security of any
series and remaining unclaimed for two years after such principal or any
such premium or interest or any such Additional Amounts shall have become
due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the
Holder of such Security or any Coupon appertaining thereto shall
thereafter, as an unsecured general creditor, look only to the Company for
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payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust Money, and all liability of the Company as trustee
thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized
Newspaper in each Place of Payment for such series or to be mailed to
Holders of Registered Securities of such series, or both, 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 or mailing
nor shall it be later than two years after such principal and any premium
or interest or Additional Amounts shall have become due and payable, any
unclaimed balance of such Money then remaining will be repaid to the
Company.
Prior to the appointment of any Paying Agent (other than the
Company) by the Company for any series of Securities, the Company shall
give written notice of such appointment (which notice shall include the
address for purposes of notice hereunder of such Paying Agent) to the
Holders of the Securities of such series in accordance with the terms of
such series established hereby or pursuant hereto.
Section 1004. ADDITIONAL AMOUNTS.
If any Securities of a series provide for the payment of
Additional Amounts, the Company agrees to pay to the Holder of any such
Security or any Coupon appertaining thereto Additional Amounts as provided
in or pursuant to this Indenture or such Securities. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal
of or any premium or interest on, or in respect of, any Security of any
series or any Coupon or the net proceeds received on the sale or exchange
of any Security of any series, such mention shall be deemed to include
mention of the payment of Additional Amounts provided by the terms of such
series established hereby or pursuant hereto to the extent that, in such
context, Additional Amounts are, were or would be payable in respect
thereof pursuant to such terms, and express mention of the payment of
Additional Amounts (if applicable) in any provision hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or
the Securities of the applicable series, if the Securities of a series
provide for the payment of Additional Amounts, at least 10 days prior to
the first Interest Payment Date with respect to such series of Securities
(or if the Securities of such series shall not bear interest prior to
Maturity, the first day on which a payment of principal is made) and at
least 10 days prior to each date of payment of principal or interest if
there has been any change with respect to the matters set forth in the
below-mentioned Officers' Certificate, the Company shall furnish to the
Trustee and the principal Paying Agent or Paying Agents, if other than the
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Trustee, an Officers' Certificate setting forth any Additional Amounts due,
including their calculation, and instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of and premium, if
any, or interest on the Securities of such series shall be made to Holders
of Securities of such series or the Coupons appertaining thereto who are
United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of such
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities or Coupons, and the
Company agrees to pay to the Trustee or such Paying Agent the Additional
Amounts required by the terms of such Securities. The Company covenants to
pay any Additional Amounts due and to indemnify the Trustee and any Paying
Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of
them in reliance on any Officers' Certificate furnished pursuant to this
Section.
Section 1005. [RESERVED].
Section 1006. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and that of each Principal Constituent Bank and their
respective rights (charter and statutory) and franchises; PROVIDED,
HOWEVER, that the foregoing shall not obligate the Company or any Principal
Constituent Bank to preserve any such right or franchise if the Company or
such Principal Constituent Bank, as the case may be, shall determine that
the preservation thereof is no longer desirable in the conduct of the
business of the Company or the business of such Principal Constituent Bank
and that the loss thereof is not disadvantageous in any material respect to
any Holder.
Section 1007. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Section 1006 with respect to
the Securities of any series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding
Securities of such series, by Act of such Holders, either shall waive such
compliance in such instance or generally shall have waived compliance with
such term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of
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the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
Section 1008. COMPANY STATEMENT AS TO COMPLIANCE; NOTICE OF
CERTAIN DEFAULTS.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year (which on the date hereof ends on
December 31), a written statement (which need not be contained in or
accompanied by an Officers' Certificate) signed by the principal executive
officer, the principal financial officer or the principal accounting
officer of the Company, stating that
(1) a review of the activities of the Company during
such year and of its performance under this Indenture has
been made under his or her supervision, and
(2) to the best of his or her knowledge, based on such
review, (a) the Company has complied with all the conditions
and covenants imposed on it under this Indenture throughout
such year, or, if there has been a default in the
fulfillment of any such condition or covenant, specifying
each such default known to him or her and the nature and
status thereof, and (b) no event has occurred and is
continuing which is, or after notice or lapse of time or
both would become, an Event of Default, or, if such an event
has occurred and is continuing, specifying each such event
known to him and the nature and status thereof.
(b) The Company shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of any event which is, or
after notice or lapse of time (or both) would become, an Event of Default.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. APPLICABILITY OF ARTICLE.
Redemption of Securities of any series at the option of the
Company as permitted or required by the terms of such Securities shall be
made in accordance with the terms of such Securities and (except as
otherwise provided herein or pursuant hereto) this Article.
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Section 1102. 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 all, or less than all, of the Securities
of any series, with the same issue date, interest rate or formula, Stated
Maturity and other terms, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of Securities of such series to
be redeemed.
Section 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series with the same issue
date, interest rate, Stated Maturity and other terms are to be redeemed,
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 not previously called for redemption,
substantially pro rata, by lot, or by such other method that the Trustee
shall deem fair and appropriate and, if the Securities are listed on any
securities exchange, that complies with the requirements of such exchange.
The Trustee may provide for the selection for redemption of portions of the
principal amount of Registered Securities of such series; PROVIDED,
HOWEVER, that no such partial redemption shall reduce the portion of the
principal amount of a Registered Security of such series not redeemed to
less than the minimum denomination for a Security of such series
established herein or pursuant hereto.
If any Security selected for partial redemption is converted or
exchanged in part before termination of any applicable conversion or
exchange right with respect to the portion of the Security so selected, the
converted or exchanged portion of such Security shall be deemed (so far as
may be) to be the portion selected for redemption. Securities which have
been converted or exchanged during a selection of Securities to be redeemed
shall be treated by the Trustee as Outstanding for the purpose of such
selection.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
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Section 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be
redeemed, to the Holders of Securities to be redeemed. Failure to give
notice by mailing in the manner herein provided to the Holder of any
Registered Securities designated for redemption as a whole or in part, or
any defect in the notice to any such Holder, shall not affect the validity
of the proceedings for the redemption of any other Securities or portion
thereof
Any notice that is mailed to the Holder of any Registered
Securities in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of
partial redemption, the principal amount) of the particular
Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the
Holder of such Security will receive, without charge, a new
Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed;
(5) that, on the Redemption Date, the Redemption Price
shall become due and payable upon each such Security or portion
thereof to be redeemed, and, if applicable, that interest thereon
shall cease to accrue on and after said date;
(6) the place or places where such Securities, together (in
the case of Bearer Securities) with all Coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price and any accrued
interest and Additional Amounts pertaining thereto;
(7) that the redemption is for a sinking fund, if such is
the case;
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must
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be accompanied by all Coupons maturing subsequent to the date
fixed for redemption or the amount of any such missing Coupon or
Coupons will be deducted from the Redemption Price, unless
security or indemnity satisfactory to the Company, the Trustee
and any Paying Agent is furnished;
(9) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be
redeemed, and if such Bearer Securities may be exchanged for
Registered Securities not subject to redemption on the Redemption
Date pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made;
and
(10) the CUSIP number or the Euro-clear or the CEDEL
reference numbers of such Securities, if any (or any other
numbers used by a Depository to identify such Securities); and
(11) in the case of Convertible Securities, the conversion
or exchange price or rate then in effect, the date or dates on
which the right to convert or exchange the principal amount of
such Convertible Securities or the portions thereof to be
redeemed will commence or terminate and the place or places where
such Securities may be surrendered for conversion or exchange.
A notice of redemption published as contemplated by Section 106
need not identify particular Registered Securities to be redeemed.
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 written
request, by the Trustee in the name and at the expense of the Company.
Section 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of Money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) any
accrued and unpaid interest on and Additional Amounts with respect thereto,
all the Securities or portions thereof which are to be redeemed on that
date, other than Securities called for redemption on that date which have
been converted or exchanged prior to the date of such deposit.
Section 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
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payable at the Redemption Price therein specified, and from and after such
date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear interest
and the Coupons for such interest appertaining to any Bearer Securities so
to be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Security for redemption in accordance with said
notice, together with all Coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at
the Redemption Price, together with any accrued interest and Additional
Amounts to the Redemption Date; PROVIDED, HOWEVER, that installments of
interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only upon presentation and surrender of
Coupons for such interest (at an Office or Agency located outside the
United States except as otherwise provided in Section 1002), and PROVIDED,
FURTHER, that installments of interest on Registered Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Regular Record
Dates therefor according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an
amount equal to the face amount of all such missing Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or
any Paying Agent any such missing Coupon in respect of which a deduction
shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; PROVIDED, HOWEVER, that any
interest or Additional Amounts represented by Coupons shall be payable only
upon presentation and surrender of those Coupons at an Office or Agency for
such Security located outside of the United States except as otherwise
provided in Section 1002.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until
paid, shall bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 1107. SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part
shall be surrendered at any Office or Agency designated by the Company for
such Security (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his
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attorney duly authorized in writing) and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Registered Security or Securities of the same
series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the
Security so surrendered. If a Security in global form is so surrendered,
the Company shall execute and the Trustee shall authenticate and deliver to
the U.S. Depository or other Depository for such Security in global form as
shall be specified in the Company Order with respect thereto to the
Trustee, without service charge, a new Security in global form in a
denomination equal to and in exchange for the unredeemed portion of the
principal of the Security in global form so surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series, except as otherwise
permitted or required by or pursuant to this Indenture or in any Security
of such series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Securities of such series is herein referred
to as an "optional sinking fund payment." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 1202. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series and the Indenture.
Section 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Company may, in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of any series to be
made pursuant to the terms of such Securities, (1) deliver Outstanding
Securities of such series (other than any of such Securities previously
called for redemption or any of such Securities in respect of which cash
shall have been released to the Company), together in the case of any
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Bearer Securities of such series with all unmatured Coupons appertaining
thereto, and (2) apply as a credit Securities of such series which have
been redeemed either at the election of the Company pursuant to the terms
of such series of Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities,
PROVIDED that such series of Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose
by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly. If as a result of the
delivery or credit of Securities of any series in lieu of cash payments
pursuant to this Section 1202, the principal amount of Securities of such
series to be redeemed in order to exhaust the aforesaid cash payment shall
be less than $100,000, the Trustee need not call Securities of such series
for redemption, except upon Company Request, and such cash payment shall be
held by the Trustee or a Paying Agent and applied to the next succeeding
sinking fund payment, PROVIDED, HOWEVER, that the Trustee or such Paying
Agent shall at the written request of the Company from time to time pay
over and deliver to the Company any cash payment so being held by the
Trustee or such Paying Agent upon delivery by the Company to the Trustee of
Securities of that series purchased by the Company having an unpaid
principal amount equal to the cash payment requested to be released to the
Company.
Section 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 75 days prior to each sinking fund payment date for
any series of Securities, the Company shall deliver to the Trustee 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
and the portion thereof, if any, which is to be satisfied by delivering and
crediting of Securities of that series pursuant to Section 1202, and the
optional amount, if any, to be added in cash to the next ensuing mandatory
sinking fund payment, and will also deliver to the Trustee any Securities
to be so credited and not theretofore delivered. If such Officers'
Certificate shall specify an optional amount to be added in cash to the
next ensuing mandatory sinking fund payment, the Company shall thereupon be
obligated to pay the amount therein specified. Not less than 60 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner
provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance
with the terms of the Securities of such series. The repayment of any
principal amount of Securities pursuant to such option of the Holder to
require repayment of Securities before their Stated Maturity, for purposes
of Section 309, shall not operate as a payment, redemption or satisfaction
of the indebtedness represented by such Securities unless and until the
Company, at its option, shall deliver or surrender the same to the Trustee
with a written directive that such Securities be canceled. Notwithstanding
anything to the contrary contained in this Section 1301, in connection with
any repayment of Securities, the Company may arrange for the purchase of
any Securities by an agreement with one or more investment bankers or other
purchasers to purchase such Securities by paying to the Holders of such
Securities on or before the close of business on the repayment date an
amount not less than the repayment price payable by the Company on
repayment of such Securities, and the obligation of the Company to pay the
repayment price of such Securities shall be satisfied and discharged to the
extent such payment is so paid by such purchasers.
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. APPLICABILITY OF ARTICLE.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series
in which not all of such Securities are denominated in the same Currency,
or (ii) any distribution to Holders of Securities, in the absence of any
provision to the contrary in the form of Security of any particular series
or pursuant to this Indenture or the Securities, any amount in respect of
any Security denominated in a Currency other than Dollars shall be treated
for any such action or distribution as that amount of Dollars that could be
obtained for such amount on such reasonable basis of exchange and as of the
record date with respect to Registered Securities of such series (if any)
for such action, determination of rights or distribution (or, if there
shall be no applicable record date, such other date reasonably proximate to
the date of such action, determination of rights or distribution) as the
Company may specify in a written notice to the Trustee or, in the absence
of such written notice, as the Trustee may determine.
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ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any series may be called at
any time and from time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction, notice, consent, waiver
or other Act provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
Section 1502. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be
held at such time and at such place in the Borough of Manhattan, The City
of New York, or, if Securities of such series have been issued in whole or
in part as Bearer Securities, in London or in such place outside the United
States as the Trustee shall determine. Notice of every meeting of Holders
of Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 106, not less
than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company (by or pursuant to a Board
Resolution) or the Holders of at least 10 percent in principal amount of
the Outstanding Securities of any series shall have requested the Trustee
to call a meeting of the Holders of Securities of such series for any
purpose specified in Section 1501, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed notice of or made the first publication of
the notice of such meeting within 21 days after receipt of such request
(whichever shall be required pursuant to Section 106) or shall not
thereafter proceed to cause the meeting to be held as provided herein, then
the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or, if Securities of such
series are to be issued as Bearer Securities, in London for such meeting
and may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
Section 1503. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of
any series, a Person shall be (1) a Holder of one or more Outstanding
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Securities of such series, or (2) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding
Securities of such series by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders of
Securities of any series shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
Section 1504. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a
quorum within 30 minutes after the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as
provided in Section 1502(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted only by the affirmative vote
of the Holders of a majority in principal amount of the Outstanding
Securities of that series; PROVIDED, HOWEVER, that, except as limited by
the proviso to Section 902, any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action
which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted
at a meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of
such series.
Any resolution passed or decision taken at any meeting of Holders
of Securities of any series duly held in accordance with this Section shall
be binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or
represented at the meeting.
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Section 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of such series in regard to proof of
the holding of Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 104 and the appointment of any proxy
shall be proved in the manner specified in Section 104 or by having the
signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 104 to certify to the
holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
1502(b), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting, each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
Securities of such series held or represented by him; PROVIDED, HOWEVER,
that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented
at the meeting; and the meeting may be held as so adjourned without further
notice.
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Section 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders
of Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities of such series held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting their
verified written reports in triplicate of all votes cast at the meeting. A
record, at least in triplicate, of the proceedings of each meeting of
Holders of Securities of any series shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports
of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
given as provided in Section 1502 and, if applicable, Section 1504. Each
copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered
to the Company, and another to the Trustee to be preserved by the Trustee,
the latter to have attached thereto the ballots voted at the meeting. Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.
ARTICLE SIXTEEN
CONVERSION OF SECURITIES
Section 1601. CONVERSION PRIVILEGE.
Subject to and upon compliance with the provisions of this
Article Sixteen and the terms of the Convertible Securities of the series
proposed to be converted into Common Stock, at the option of the Holder,
such Convertible Security or any portion of the principal amount thereof
which is $1,000 or an integral multiple thereof may be converted into
shares of Common Stock, as said shares shall be constituted at the Date of
Conversion, at the Conversion Price for such Convertible Securities of such
series in effect at the Date of Conversion.
Section 1602. MANNER OF EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege, the Holder of any
Convertible Security to be converted shall surrender such Convertible
Security to the Company at its Office or Agency maintained for such
purpose, together with the conversion notice in the form provided on the
Securities (or separate written notice) duly executed, and, if so required
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by the Company, accompanied by instruments of transfer, in form
satisfactory to the Company and to the Trustee, duly executed by the Holder
or by his duly authorized attorney in writing. Any Registered Convertible
Security so surrendered during the period from the close of business on the
Regular Record Date preceding an Interest Payment Date for such Registered
Convertible Security to the opening of business on such Interest Payment
Date shall (unless any such Registered Convertible Security or the portion
thereof being converted shall have been called for redemption on a
Redemption Date during such period, in which event no interest shall be
payable with respect to such Registered Convertible Security or portion
thereof, as the case may be, following such Redemption Date, and the Date
of Conversion shall be one Business Day prior to such Redemption Date) also
be accompanied by payment in New York Clearing House funds or other funds
acceptable to the Company of an amount equal to the interest payable on
such Interest Payment Date on the principal amount of such Registered
Convertible Security then being converted; PROVIDED, HOWEVER, that no such
payment need be made if there shall exist, at the time of conversion, a
default in the payment of interest on the Convertible Securities of such
series. Except as provided in the immediately preceding sentence, no
adjustment shall be made for interest accrued on any Convertible Security
that shall be converted or for dividends on any shares of Common Stock that
shall be delivered upon the conversion of such Convertible Securities. The
funds so delivered to such Office or Agency shall be paid to the Company on
or after such Interest Payment Date, unless the Company shall default in
the payment of the interest due on such Interest Payment Date, in which
event such funds shall be repaid to the Person who delivered the same. As
promptly as practicable after the surrender of any Convertible Security for
conversion as aforesaid, the Company shall deliver at said Office or Agency
to such Holder, or on his written order, a certificate or certificates for
the number of full shares deliverable upon the conversion of such
Convertible Security or portion thereof and a check or cash in respect of
any fraction of a share of Common Stock otherwise deliverable upon such
conversion, all as provided in this Article Sixteen, together with a
Convertible Security or Convertible Securities of the same series in
principal amount equal to the unconverted and unredeemed portion, if any,
of Convertible Security so converted in accordance with Section 305 hereof.
Such conversion shall be deemed to have been effected on the date on which
such notice shall have been received at said Office or Agency and such
Convertible Security shall have been surrendered as aforesaid, and the
Person or Persons in whose name or names any certificate or certificates
for shares of Common Stock shall be deliverable upon such conversion shall
be deemed to have become on said date the Holder or Holders of record of
the shares represented thereby, PROVIDED, HOWEVER, that any such surrender
on any date when the stock transfer books of the Company shall be closed
shall constitute the Person or Persons in whose name or names the
certificates are to be delivered as the record Holder or Holders thereof
for all purposes on the next succeeding day on which such stock transfer
books are open, but such conversion shall be at the Conversion Price in
effect on the date of such surrender.
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Section 1603. CASH ADJUSTMENT UPON CONVERSION.
The Company shall not be required to deliver fractions of shares
of Common Stock upon conversions of Convertible Securities. If more than
one Convertible Security shall be surrendered for conversion at one time by
the same Holder, the number of full shares which shall be deliverable upon
conversion thereof shall be computed on the basis of the aggregate
principal amount of the Securities so surrendered. If any fractional
interest in a share of Common Stock would be deliverable upon the
conversion of any Convertible Security or Securities, the Company shall
make an adjustment therefor in cash equal to the current market value of
such fractional interest computed to the nearest cent either on the basis
of the last reported sale price regular way of the Common Stock on the New
York Stock Exchange (or, if not listed on the New York Stock Exchange then
on such other exchange on which the shares of Common Stock are listed as
the Company may designate) on the last Business Day prior to the Date of
Conversion or, if there shall not have been a sale on such last Business
Day, on the basis of the average of the bid and asked quotations therefor
on such exchange on such last Business Day or, if the Common Stock shall
not then be listed on any exchange, at the highest bid quotation in the
over-the-counter market on such last Business Day as reported by the
National Association of Securities Dealers through NASDAQ, its automated
system for, reporting quotes, or its successor or such other generally
accepted source of publicly reported bid and asked quotations as the
Company may reasonably designate.
Section 1604. CONVERSION PRICE.
The Conversion Price applicable to any series of Convertible
Securities shall be the initial Conversion Price set forth on the Officers'
Certificate or supplemental indenture establishing such series adjusted as
provided in this Article Sixteen.
Section 1605. ADJUSTMENT OF CONVERSION PRICE.
The Conversion Price applicable to any series of Convertible
Securities shall be adjusted from time to time as follows:
(a) In case the Company shall, at any time or from time to time
while the Securities of any series are outstanding, (i) pay a dividend on
its Common Stock in shares of Common Stock, (ii) subdivide its outstanding
shares of Common Stock into a larger number of shares, or (iii) combine its
outstanding Common Stock into a smaller number of shares, the Conversion
Price for such series in effect immediately prior thereto shall be adjusted
so that the Holder of any Security of such series thereafter surrendered
for conversion shall be entitled to receive the number of shares of Common
Stock or other securities of the Company which he would have owned or have
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been entitled to receive after the happening of any of the events described
above, had such Convertible Security of such series been converted
immediately prior to the happening of such event. An adjustment made
pursuant to this subdivision (a) shall become effective, in the case of a
dividend, on the payment date retroactively to immediately after the
opening of business on the day following the record date for the
determination of shareholders entitled to receive such dividend, subject to
the provisions of paragraph (g) of this Section 1605, and shall become
effective in the case of a subdivision or combination immediately after the
opening of business on the day following the day when such subdivision or
combination, as the case may be, becomes effective.
(b) In case the Company shall, at any time or from time to time
while the Convertible Securities of any series are outstanding, issue
rights or warrants to all holders of its shares of Common Stock entitling
them (for a period expiring within 45 days of the record date mentioned
below) to subscribe for or purchase shares of Common Stock at a price per
share less than the current market price per share of Common Stock (as
defined in paragraph (d) below) at such record date, the Conversion Price
of any series of Convertible Securities in effect immediately prior to the
issuance of such rights or warrants shall be adjusted as follows: the
number of shares of Common Stock into which $1,000 principal amount of
Convertible Securities of such series was theretofore convertible shall be
multiplied by a fraction, of which the numerator shall be the number of
shares of Common Stock outstanding immediately prior to such record date
plus the number of additional shares of Common Stock offered for
subscription or purchase, and of which the denominator shall be the number
of shares of Common Stock outstanding immediately prior to such record date
plus the number of shares which the aggregate offering price of the total
number of shares so offered would purchase at such current market price;
and the Conversion Price for such series of Convertible Securities shall be
adjusted by dividing $1,000 by the new number of shares into which $1,000
principal amount of Securities of such series shall be convertible as
aforesaid. Such adjustment shall become effective on the date of such
issuance retroactively to immediately after the opening of business on the
day following the record date for the determination of shareholders
entitled to receive such rights or warrants, subject to the provisions of
paragraph (g) of this Section 1605. In determining whether any rights or
warrants entitle the holders to subscribe for or purchase shares of Common
Stock at less than such current market price, and in determining the
aggregate offering price of such shares, there shall be taken into account
any consideration received by the Company for such rights or warrants, the
value of such consideration, if other than cash, to be determined by the
Board of Directors.
(c) In case the Company shall, at any time or from time to time
while the Convertible Securities of any series are outstanding, distribute
to all holders of shares of its Common Stock evidences of its indebtedness
or securities or assets (excluding cash dividends or cash distributions
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payable out of consolidated net earnings or retained earnings) or rights or
warrants to subscribe for shares of Common Stock at a price per share less
than the current market price per share of Common Stock, determined in the
manner set forth in paragraph (d) below, but excluding rights or warrants
referred to in paragraph (b) above, the Conversion Price for such series of
Convertible Securities in effect immediately prior to such distribution
shall be adjusted by multiplying the number of shares of Common Stock into
which $1,000 principal amount of Convertible Securities of such series of
Convertible Securities was theretofore convertible by a fraction, of which
the numerator shall be the current market price per share of Common Stock
(as defined in paragraph (d) below) on the record date for such
distribution, and of which the denominator shall be such current market
price per share of the Common Stock, less the then fair market value (as
determined by the Board of Directors of the Company, whose determination
shall be conclusive) of the portion of such evidences of indebtedness,
securities or assets or of such subscription rights or warrants so
distributed applicable to one share of Common Stock; and the Conversion
Price for such series of Convertible Securities shall be adjusted by
dividing $1,000 by the new number of shares into which $1,000 principal
amount of Convertible Securities of such series shall be convertible as
aforesaid. Such adjustment shall become effective on the date of such
distribution retroactively to immediately after the opening of business on
the day following the record date for the determination of shareholders
entitled to receive such distribution, subject to the provisions of
paragraph (g) of this Section 1605. For the purposes of this paragraph (c)
consolidated net earnings or retained earnings shall be computed by adding
thereto all charges against retained earnings on account of dividends paid
in shares of Common Stock in respect of which the Conversion Price has been
adjusted, all as determined by Independent Public Accountants, whose
determination shall be conclusive.
(d) For the purpose of any computation under paragraphs (b) and
(c) above, the current market price per share of Common Stock at any date
shall be deemed to be the average of the market values of the shares of
Common Stock for the ten consecutive Business Days immediately preceding
the day in question. The market value of the Common Stock for each day
shall be determined as provided in Section 1603 hereof.
(e) The Company may make such reductions in the Conversion Price
for any series of Convertible Securities, in addition to those required by
paragraphs (a), (b) and (c) of this Section as it considers to be advisable
in order that any event treated for U.S. federal income tax purposes as a
dividend of stock or stock rights shall not be taxable to the recipients.
(f) Except as herein otherwise provided, no adjustment in the
Conversion Price for any series of Convertible Securities shall be made by
reason of the issuance, in exchange for cash, property or services, of
shares of Common Stock, or any securities convertible into or exchangeable
for shares of Common Stock, or carrying the right to purchase any of the
foregoing.
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(g) If the Company shall take a record of the holders of its
shares of Common Stock for the purpose of entitling them to receive any
dividend or any subscription or purchase rights or any distribution and
shall, thereafter and before the distribution to shareholders of any such
dividend, subscription or purchase rights or distribution, legally abandon
its plan to pay or deliver such dividend, subscription or purchase rights
or distribution, then no adjustment of the Conversion Price for any series
of Convertible Securities shall be required by reason of the taking of such
record.
(h) No adjustment in the Conversion Price for any series of
Convertible Securities shall be required unless such adjustment would
require an increase or decrease of at least 1 percent in such price;
PROVIDED, HOWEVER, that any adjustments which by reason of this paragraph
(h) are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Article
Sixteen shall be made to the nearest cent or to the nearest one-hundredth
of a share, as the case may be.
(i) Whenever the Conversion Price for any series of Convertible
Securities is adjusted as herein provided, the Company shall (i) forthwith
place on file at the Corporate Trust Office of the Trustee an Officers'
Certificate showing in detail the facts requiring such adjustment and the
Conversion Price after such adjustment and shall exhibit the same from time
to time to any Holder of Convertible Securities of such series desiring an
inspection thereof, and (ii) cause a notice stating that such adjustment
has been effected and the adjusted Conversion Price to be mailed to the
Holders of Registered Convertible Securities of such series at their last
addresses as they shall appear on the Security Register.
(j) The Company may delete, modify or vary any of the provisions
applicable to conversion of the Convertible Securities of any series, or
may add new provisions applicable thereto, all as may be contained in the
Board Resolutions and Officers' Certificate or supplemental indenture
establishing such series.
Section 1606. EFFECT OF RECLASSIFICATIONS, CONSOLIDATIONS,
MERGERS OR SALES ON CONVERSION PRIVILEGE.
In case of any reclassification or change of outstanding shares
of the class of Common Stock issuable upon conversion of the Convertible
Securities (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision
or combination), or in case of any merger or consolidation of the Company
with one or more other corporations (other than a merger or consolidation
in which the Company is the continuing corporation and which does not
result in any reclassification or change of outstanding shares of Common
Stock issuable upon conversion of the Securities), or in case of the merger
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of the Company into another corporation, or in case of any sale or
conveyance to another corporation of the property of the Company as an
entirety or substantially as an entirety, the Holder of Convertible
Securities of each then outstanding shall have the right to convert such
Convertible Security into the kind and amount of shares of capital stock or
other securities and property, including cash, receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by a
holder of the number of shares of Common Stock into which such Convertible
Security might have been converted immediately prior to such
reclassification, change, consolidation, merger, sale or conveyance. In
any such case the Company, or such successor or purchasing corporation, as
the case may be, shall execute with the Trustee one or more supplemental
indentures containing provisions to the effect set forth above in this
Section 1606 and providing further for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Article Sixteen; and any such adjustment which shall be approved by the
Board of Directors and set forth in such supplemental indenture or
supplemental indentures shall be conclusive for all purposes of this
Section, and the Trustee shall not be under any responsibility to determine
the correctness of any provision contained in such supplemental indenture
or supplemental indentures relating to either the kind or amount of shares
of stock or securities or property receivable by Holders of Securities of
any series upon the conversion of their Convertible Securities after any
such reclassification, change, consolidation, merger, sale or conveyance.
The above provisions of this Section 1606 shall similarly apply
to successive reclassifications, changes, consolidations, mergers, sales
and conveyances.
Section 1607. TAXES ON CONVERSIONS.
The issue of stock certificates on conversions of Convertible
Securities shall be made without charge to the converting Holder of
Convertible Securities for any tax in respect of the issue thereof. The
Company shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of shares in
any name other than that of the Holder of any Registered Convertible
Security converted, and the Company shall not be required to issue or
deliver any such stock certificate unless and until the Person or Persons
requesting the issue thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that
such tax has been paid.
Section 1608. COMPANY TO RESERVE COMMON STOCK.
The Company shall at all times reserve and keep available out of
the aggregate of its authorized but unissued shares or its issued shares
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held in its treasury, or both, for the purpose of effecting the conversion
of the Securities, such number of its duly authorized shares of Common
Stock as shall from time to time be sufficient to effect the conversion of
all Outstanding Securities.
If any shares of Common Stock reserved or to be reserved for the
purpose of conversion of Securities hereunder require registration with or
approval of any governmental authority under any Federal or State law
before such shares may be validly delivered upon conversion, then the
Company covenants that it will in good faith and as expeditiously as
possible endeavor to secure registration or approval, as the case may be.
The Company covenants that all shares of Common Stock which may
be delivered upon conversion of Convertible Securities shall upon delivery
be fully paid and nonassessable by the Company and free from all taxes,
liens and charges with respect to the issue or delivery thereof.
Section 1609. DISCLAIMER BY TRUSTEE OF RESPONSIBILITY FOR
CERTAIN MATTERS.
Neither the Trustee nor any conversion agent shall at any time be
under any duty or responsibility to any Holder of Convertible Securities of
any series to determine whether any facts exist which may require any
adjustment of the Conversion Price for such series, or with respect to the
nature or extent of any such adjustment when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be
employed, in making the same, subject, however, to the provisions of
Sections 315(a) through 315(b) of the Trust Indenture Act. Neither the
Trustee nor any conversion agent shall be accountable with respect to the
validity or value (or the kind or amount) of any shares of Common Stock, or
of any securities or property which may at any time be issued or delivered
upon the conversion of any Convertible Security; and neither of them makes
any representation with respect thereto. Neither the Trustee nor any
conversion agent shall be responsible for any failure of the Company to
make any cash payment or to issue, transfer or deliver any shares of Common
Stock or stock certificates or other securities or property upon the
surrender of any Security for the purpose of conversion or, subject to
Sections 315(a) through 315(b) of the Trust Indenture Act, to comply with
any of the covenants of the Company contained in this Article Sixteen.
Section 1610. COMPANY TO GIVE NOTICE OF CERTAIN EVENTS.
In the event
(1) that the Company shall pay any dividend or make any
distribution to the holders of shares of Common Stock otherwise
than in cash charged against consolidated net earnings or
retained earnings of the Company and its consolidated net
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earnings or retained earnings of the Company and its consolidated
subsidiaries or in Common Stock; or
(2) that the Company shall offer for subscription or
purchase, pro rata, to the holders of shares of Common Stock any
additional shares of stock of any class or any securities
convertible into or exchangeable for stock of any class; or
(3) of any reclassification or change of outstanding shares
of the class of Common Stock issuable upon the conversion of the
Securities (other than a change in par value, or from par value
to no par value, or from no par value to par value, or as a
result of a subdivision or combination), or of any merger or
consolidation of the Company with, or merger of the Company into,
another corporation (other than a merger or consolidation in
which the Company is the continuing corporation and which does
not result in any reclassification or change of outstanding
shares of Common Stock issuable upon conversion of the
Securities), or of any sale or conveyance to another corporation
of the property of the Company as an entirety or substantially as
an entirety;
then, and in any one or more of such events, the Company will give to the
Trustee and each conversion agent written notice thereof at least fifteen
days prior to (i) the record date fixed with respect to any of the events
specified in (1) and (2) above, and (ii) the effective date of any of the
events specified in (3) above; and shall mail promptly a copy of such
notice to the Holders of Registered Convertible Securities at their last
addresses as they shall appear upon the Security Register. Failure to give
such notice, or any defect therein, shall not affect the legality or
validity of such dividend, distribution, reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up.
ARTICLE SEVENTEEN
SUBORDINATION OF SECURITIES
Section 1701. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of Securities,
by his acceptance thereof, likewise covenants and agrees, that the
indebtedness evidenced by the Securities and the payment of the principal
of (and premium, if any) and interest on and any Additional Amounts payable
in respect thereof is hereby expressly subordinated, to the extent and in
the manner hereinafter set forth, in right of payment to the prior payment
in full of Senior Indebtedness.
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Anything in this Indenture or in the Securities of any series to
the contrary notwithstanding, the indebtedness evidenced by the Securities
shall be subordinate and junior in right of payment, to the extent and in
the manner hereinafter set forth, to all Senior Indebtedness:
(a) In the event of any insolvency or bankruptcy proceedings,
and any receivership, liquidation, reorganization, arrangement or other
similar proceedings in connection therewith, relative to the Company or to
its property, and in the event of any proceedings for voluntary
liquidation, dissolution or other winding up of the Company, whether or not
involving insolvency or bankruptcy, then the holders of Senior Indebtedness
shall be entitled to receive payment in full of all principal, premium and
interest on all Senior Indebtedness before the Holders of the Securities
are entitled to receive any payment on account of principal, premium, if
any, or interest or Additional Amounts upon the Securities, and to that end
(but subject to the power of a court of competent jurisdiction to make
other equitable provisions reflecting the rights conferred in this
Indenture upon Senior Indebtedness and the holders thereof with respect to
the subordinated indebtedness represented by the Securities and the Holders
thereof by a lawful plan of reorganization under applicable bankruptcy law)
the holders of Senior Indebtedness shall be entitled to receive for
application in payment thereof any payment or distribution of any kind or
character, whether in cash or property or securities, which may be payable
or deliverable in any such proceedings in respect of the Securities after
giving effect to any concurrent payment or distribution in respect of such
Senior Indebtedness; and
(b) If any default shall occur and be continuing with respect to
any Senior Indebtedness beyond any applicable grace period, no payment by
the Company on account of principal, premium, if any, or interest or
Additional Amounts on the Securities shall be made unless full payment of
amounts then due for principal, premium, if any, and interest on such
Senior Indebtedness shall have been made or provided for.
In case, despite the foregoing provisions, any payment or
distribution shall, in any such event, be paid or delivered to any Holder
of the Securities or to the Trustee for their benefit before all Senior
Indebtedness shall have been paid in full, such payment or distribution
shall be held in trust for and so paid and delivered to the holders of
Senior Indebtedness (or their duly authorized representatives) until all
Senior Indebtedness shall have been paid in full.
The Company shall give written notice to the Trustee within five
days after the occurrence of any insolvency, bankruptcy, receivership,
liquidation, reorganization, arrangement or similar proceeding of the
Company within the meaning of this Section 1701. Upon any payment or
distribution of assets of the Company referred to in this Article
Seventeen, the Trustee, subject to the provisions of Section 315(a) through
315(b) of the Trust Indenture Act, and the Holders of the Securities shall
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be entitled to rely upon a certificate of the trustee in bankruptcy,
receiver, assignee for the benefit of creditors or other liquidating agent
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 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 Seventeen.
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 Section 1701, 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, as to the extent to
which such person is entitled to participate in such payment or
distribution, and as to other facts pertinent to rights of such person
under this Section 1701, 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 1702. SUBROGATION.
Subject to the payment in full of all Senior Indebtedness to
which the indebtedness evidenced by the Securities is in the circumstances
subordinated as provided in Section 1701, the Holders of the Securities
shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to such Senior Indebtedness until all
amounts owing on the Securities shall be paid in full, and, as between the
Company, its creditors other than holders of such Senior Indebtedness, and
the Holders of the Securities, no such payment or distribution made to the
holders of such Senior Indebtedness by virtue of this Article Seventeen
which otherwise would have been made to the Holders of the Securities shall
be deemed to be a payment by the Company on account of such Senior
Indebtedness, it being understood that the provisions of this Article
Seventeen 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 the Senior Indebtedness, on the other hand.
Section 1703. OBLIGATION OF COMPANY UNCONDITIONAL.
Nothing contained in this Article Seventeen 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
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principal of (and premium, if any), interest on, or any Additional Amounts
with respect to, 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 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
Seventeen 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 Seventeen, the Trustee 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 any such dissolution, winding up,
liquidation or reorganization proceeding affecting the affairs of the
Company is pending or upon a certificate of the trustee in bankruptcy,
receiver, assignee for the benefit of creditors, liquidating trustee or
agent or other person making any payment or distribution, delivered to the
Trustee, or to the Holders of the Securities, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness
of the Company the amount thereof or payable thereon, the amount paid or
distributed thereon and all other facts pertinent thereto or to this
Article Seventeen.
Section 1704. PAYMENTS ON SECURITIES PERMITTED.
Nothing contained in this Article Seventeen or elsewhere in this
Indenture, or in any of the Securities, shall affect the obligation of the
Company to make, or prevent the Company from making, payment of the
principal of (or premium, if any), interest or any Additional Amounts on
the Securities in accordance with the provisions hereof and thereof, except
as otherwise provided in this Article Seventeen.
Section 1705. EFFECTUATION OF SUBORDINATION BY TRUSTEE.
Each Holder of Securities, by his acceptance thereof, authorizes
and directs the Trustee in his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Seventeen and appoints the Trustee his attorney-in-fact for any and
all such purposes.
Section 1706. KNOWLEDGE OF AND NOTICE TO TRUSTEE.
Notwithstanding the provisions of this Article Seventeen or any
other provisions of this Indenture, the Trustee shall not be charged with
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knowledge of the existence of any facts which would prohibit the making of
any payment of monies to or by the Trustee, or the taking of any other
action by the Trustee, unless and until the Trustee shall have received
written notice thereof from the Company, any Holder of the Securities, any
paying or conversion agent of the Company or the holder or representative
of any class of Senior Indebtedness.
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 Seventeen 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, at least three Business Days prior to
any payment date, from the Company or a holder of any class of Senior
Indebtedness or from any trustee therefor; and, prior to the receipt of any
such written notice, the Trustee shall be entitled in all respects to
assume that no such facts exist.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee therefor) to establish that such notice has been
given by a holder of Senior Indebtedness (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
Indebtedness to participate in any payment or distribution pursuant to this
Article Seventeen, 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 Seventeen, 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 1707. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS.
Except as otherwise provided in the Trust Indenture Act, the
Trustee shall be entitled to all the rights set forth in this Article with
respect to any Senior Indebtedness at the 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.
Notwithstanding anything in this Indenture or in the Securities of any
series, nothing in this Article Seventeen shall apply to claims of or
payment to the Trustee under or pursuant to Sections 506 and 605.
With respect to holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
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obligations as are specifically set forth in this Article Seventeen, 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 but shall have only such obligations as are expressly
set forth in this Article Seventeen.
Section 1708. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS NOT
IMPAIRED.
No right of any present or future holder of any Senior
Indebtedness to enforce the subordination herein shall at any time or in
any way be prejudiced or impaired by any act or failure to act on the part
of the Company or by any noncompliance by the Company with the terms,
provisions or covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed, all as of the day and year first above written.
[SEAL] OLD KENT FINANCIAL CORPORATION
Attest:
By ______________________________________
Name
Title
[SEAL] BANKERS TRUST COMPANY, as Trustee
Attest:
By ______________________________________
Name
Title
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EXHIBIT 4
[FACE OF SECURITY]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (THE "DEPOSITORY") (55 WATER STREET, NEW YORK, NEW
YORK) TO THE COMPANY (AS DEFINED HEREIN) OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITORY.
THE NOTES ARE NOT DEPOSITS, SAVINGS ACCOUNTS OR OTHER OBLIGATIONS OF ANY
BANK OR NON-BANK SUBSIDIARY OF THE COMPANY AND ARE NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER
GOVERNMENT AGENCY.
REGISTERED REGISTERED
NO. SUB-1
CUSIP NO. 679833 AB9 $100,000,000
OLD KENT FINANCIAL CORPORATION
6-5/8% SUBORDINATED NOTE DUE NOVEMBER 15, 2005
Old Kent Financial Corporation, a Michigan corporation (herein
called the "Company," which term includes any successor corporation under
the Indenture referred to on the reverse hereof), for value received,
hereby promises to pay to Cede & Co., c/o The Depository Trust Company, 55
Water Street, New York, New York 10041, or registered assigns, the
principal sum of One Hundred Million Dollars ($100,000,000) on November 15,
2005 (the "Stated Maturity Date"), and to pay interest thereon semi-annually
in arrears on May 15 and November 15 of each year (each, an
"Interest Payment Date"), commencing on May 15, 1996, at the rate of 6-5/8%
per annum, until the principal hereof is paid or duly provided for. The
interest so payable and punctually paid on any Interest Payment Date will,
as provided in the Indenture, be paid to the Person in whose name this Note
(or one or more Predecessor Securities) is registered at the close of
business on the May 1 or November 1 (whether or not a Business Day (as
defined below)), as the case may be (each, a "Regular Record Date"),
immediately preceding such Interest Payment Date. Any such interest not so
punctually paid shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may be paid to the Person in whose name this Note
(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 Company, notice whereof shall be given to the
Holders not less than 10 days prior to such Special Record Date, or may be
paid at any time in any other lawful manner, all as more fully provided in
the Indenture. The principal of this Note payable on the Stated Maturity
Date will be paid against presentation hereof at the Corporate Trust Office
of the Trustee referred to on the reverse hereof.
Interest payments for this Note will be computed on the basis of
a 360-day year of twelve 30-day months. Interest payable on this Note on
any Interest Payment Date will include interest accrued from and including
the immediately preceding Interest Payment Date in respect of which
interest has been paid or duly provided for (or from and including November
16, 1995, if no interest has been paid or duly provided for with respect to
this Note) to but excluding such Interest Payment Date or the Stated
Maturity Date, as the case may be. If any Interest Payment Date or the
Stated Maturity Date falls on a day that is not a Business Day, principal
and/or interest payable with respect to such Interest Payment Date or the
Stated Maturity Date, as the case may be, will be paid on the next
succeeding Business Day with the same force and effect as if it were paid
on the date such payment was due, and no interest shall accrue on the
amount so payable for the period from and after such Interest Payment Date
or the Stated Maturity Date, as the case may be, to such next succeeding
Business Day. "Business Day" means any day, other than a Saturday or
Sunday, on which banking institutions in The City of New York are not
required or authorized by law, regulation or executive order to close.
All payments of principal and interest in respect of this Note
will be made by the Company in immediately available funds 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.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, including, without limitation, provisions
for subordination of the payment of the principal of and interest on the
Notes to the prior payment in full of all Senior Indebtedness. Such
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 by manual signature, this Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
-2-
This Note shall be governed by, and construed in accordance with,
the laws of the State of New York applicable to agreements made and to be
performed entirely within such State.
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed under its corporate seal.
OLD KENT FINANCIAL CORPORATION
[SEAL]
By ________________________________________
Attest: Name:
Title:
By _______________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By ___________________________
Authorized Signatory
-3-
[REVERSE OF SECURITY]
OLD KENT FINANCIAL CORPORATION
6-5/8% SUBORDINATED NOTE DUE NOVEMBER 15, 2005
This Note is one of the duly authorized subordinated debt
securities of the Company (collectively, the "Securities") issued and to be
issued in one or more series under the Subordinated Indenture, dated as of
November 1, 1995 (the "Indenture"), between the Company and Bankers Trust
Company, a New York banking corporation, 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, obligations and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and the terms upon which the
Securities are, and are to be, authenticated and delivered. This Note is
one of the series designated by its title on the face hereof (collectively,
the "Notes"), such series being limited in aggregate principal amount to
$100,000,000 (except for Notes authenticated and delivered upon transfer
of, or in exchange for, or in lieu of, other Notes). Capitalized terms
used but not defined herein shall have the meanings assigned to such terms
in the Indenture.
The indebtedness evidenced by the Notes is, to the extent and in
the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of the principal of and (premium, if
any, and) interest on all Senior Indebtedness, and this Note is issued
subject to such provisions. Each Holder of this Note, by accepting the
same, agrees to and shall be bound by such provisions, and authorizes the
Trustee in his/her behalf to take such action as may be necessary or
appropriate to effectuate such subordination as provided in the Indenture
and appoints the Trustee as his/her attorney-in-fact for such purpose.
The Notes will not be subject to redemption or repayment prior to
the Stated Maturity Date or to any sinking fund.
If an Event of Default with respect to the Notes shall occur and
be continuing, the Trustee or the Holders of not less than 25% in principal
amount of the Notes at the time Outstanding may declare the principal of
all Notes due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Securities of each series
to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of not less than a majority in
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aggregate principal amount of the Securities of each series affected
thereby at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal
amount of the Securities of each series at the time Outstanding, on behalf
of the Holders of all Securities of each 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 Note shall be conclusive and binding upon such Holder
and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest
on this Note at the time, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations
herein and therein set forth, the transfer of this Note may be registered
on the Security Register, upon surrender of this Note for registration of
transfer at the Corporate Trust Office of the Trustee, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or
by his/her attorney duly authorized in writing, and thereupon one or more
new Notes of authorized denominations having the same terms and conditions
and for the same aggregate principal amount will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
herein and therein set forth, the Notes are exchangeable for a like
aggregate principal amount of Notes of a different authorized denomination
having the same terms and conditions, as requested by the Holder
surrendering the same.
No service charge shall be made for any registration of transfer
or exchange of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Notes are issuable and transferable only in fully registered
form, without coupons, in denominations of $1,000 and integral multiples in
excess thereof.
Prior to and at the time of due presentment of this Note for
registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note
be overdue, and neither the Company, the Trustee nor any such agent shall
be affected by notice to the contrary.
-5-
No recourse shall be had for the payment of the principal of or
interest on this Note, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any
successor corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part
of the consideration for the issuance hereof, expressly waived and
released.
-6-
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
first page of this instrument, shall be construed as though they were
written out in full according to applicable laws or regulations.
UNIF GIFT MIN ACT -- ________________________________________________
(Cust)
Custodian ______________________________________________________
(Minor)
Under Uniform Gifts to Minors Act
_______________________________________
(State)
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above
list.
_______________________________________________
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please insert Social Security Number or other Identifying Number of
Assignee:
______________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
ASSIGNEE.
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing
______________________________________________________________________
attorney to transfer said Note on the books of the Company, with full
power of substitution in the premises.
Date: __________________ _____________________________________________
NOTICE: The signature to this assignment
must correspond with the name as written upon
the face of this Note in every particular,
without alteration or enlargement or any
change whatsoever.
SIGNATURE GUARANTEE
_____________________________________________
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