______________________________________________________________________________
INDENTURE
Between
NATIONAL PENN BANCSHARES, INC.
AND
CHRISTIANA BANK & TRUST COMPANY
(as Trustee)
___ % SUBORDINATED DEBENTURES DUE 2032
Dated as of August ____, 2002
______________________________________________________________________________
ARTICLE I DEFINITIONS 4
Section 1.1. Definitions of Terms 4
ARTICLE II ISSUE, DESCRIPTION, TERMS, CONDITIONS,
REGISTRATION AND EXCHANGE OF THE DEBENTURES 13
Section 2.1. Designation and Principal Amount 13
Section 2.2. Maturity 13
Section 2.3. Form and Payment 13
Section 2.4. [Intentionally Omitted] 14
Section 2.5. Interest 14
Section 2.6. Execution and Authentication 15
Section 2.7. Registration of Transfer and Exchange 16
Section 2.8. Temporary Debentures 17
Section 2.9. Mutilated, Destroyed, Lost or Stolen Debentures 17
Section 2.10. Cancellation 18
Section 2.11. Benefit of Indenture 18
Section 2.12. Authentication Agent 19
Section 2.13. CUSIP Numbers 19
ARTICLE III REDEMPTION OF DEBENTURES 20
Section 3.1. Redemption 20
Section 3.2. Special Event Redemption 20
Section 3.3. Optional Redemption by the Company 20
Section 3.4. Notice of Redemption 21
Section 3.5. Payment upon Redemption 23
ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD 23
Section 4.1. Extension of Interest Payment Period 23
Section 4.2. Notice of Extension 24
Section 4.3. Limitation on Transactions 24
ARTICLE V PARTICULAR COVENANTS OF THE COMPANY 25
Section 5.1. Payment of Principal and Interest 25
Section 5.2. Maintenance of Agency 25
Section 5.3. Paying Agents 26
Section 5.4. Appointment to Fill Vacancy in Office of the Trustee 27
Section 5.5. Compliance with Consolidation Provisions 27
Section 5.6. Limitation on Transactions 27
Section 5.7. Covenants as to the Trust 28
Section 5.8. Covenants as to Purchases 28
Section 5.9. Waiver of Usury, Stay or Extension Laws 28
Section 5.10. No Intent to Commence Extension Period 28
ARTICLE VI THE DEBENTURE HOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE 29
Section 6.1. The Company to Furnish the Trustee Names and
Addresses of the Debenture Holders 29
Section 6.2. Preservation of Information Communications
with the Debenture Holders 29
Section 6.3. Reports by the Company 30
Section 6.4. Reports by the Trustee 30
ARTICLE VII REMEDIES OF THE TRUSTEE AND DEBENTURE
HOLDERS ON EVENT OF DEFAULT 31
Section 7.1. Events of Default 31
Section 7.2. Collection of Indebtedness and Suits for
Enforcement by the Trustee 32
i
Section 7.3. Application of Moneys Collected 34
Section 7.4. Limitation on Suits 34
Section 7.5. Rights and Remedies Cumulative; Delay or Omission
not Waiver 35
Section 7.6. Control by the Debenture Holders 35
Section 7.7. Undertaking to Pay Costs 36
Section 7.8. Direct Action; Right of Set-Off 37
ARTICLE VIII FORM OF THE DEBENTURE AND ORIGINAL ISSUE 37
Section 8.1. Form of Debenture 37
Section 8.2. Original Issue of the Debentures 37
ARTICLE IX CONCERNING THE TRUSTEE 37
Section 9.1. Certain Duties and Responsibilities of the Trustee 37
Section 9.2. Notice of Defaults 39
Section 9.3. Certain Rights of the Trustee 39
Section 9.4. Not Responsible for Recitals, Etc. 40
Section 9.5. May Hold the Debentures 41
Section 9.6. Moneys Held in Trust 41
Section 9.7. Compensation and Reimbursement 41
Section 9.8. Reliance on Officers' Certificate 42
Section 9.9. Disqualification; Conflicting Interests 42
Section 9.10. Corporate Trustee Required; Eligibility 42
Section 9.11. Resignation and Removal; Appointment of Successor 42
Section 9.12. Acceptance of Appointment by Successor 44
Section 9.13. Merger, Conversion, Consolidation or Succession to
Business 44
Section 9.14. Preferential Collection of Claims against the Company 45
ARTICLE X CONCERNING THE DEBENTURE HOLDERS 45
Section 10.1. Evidence of Action by the Holders 45
Section 10.2. Proof of Execution by the Debenture Holders 45
Section 10.3. Who May Be Deemed Owners 46
Section 10.4. Certain Debentures Owned by Company Disregarded 46
Section 10.5. Actions Binding on the Future Debenture Holders 46
ARTICLE XI SUPPLEMENTAL INDENTURES 47
Section 11.1. Supplemental Indentures Without the Consent of the
Debenture Holders 47
Section 11.2. Supplemental Indentures with Consent of the
Debenture Holders 48
Section 11.3. Effect of Supplemental Indentures 48
Section 11.4. The Debentures Affected by Supplemental Indentures 49
Section 11.5. Execution of Supplemental Indentures 49
ARTICLE XII SUCCESSOR CORPORATION 49
Section 12.1. The Company May Consolidate, Etc. 49
Section 12.2. Successor Corporation Substituted 50
Section 12.3. Evidence of Consolidation, Etc. to Trustee 51
ARTICLE XIII SATISFACTION AND DISCHARGE 51
Section 13.1. Satisfaction and Discharge of Indenture 51
Section 13.2. Discharge of Obligations 52
Section 13.3. Deposited Moneys to Be Held in Trust 52
Section 13.4. Payment of Monies Held by Paying Agents 52
Section 13.5. Repayment to the Company 52
ARTICLE XIV IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS 53
Section 14.1. No Recourse 53
ii
ARTICLE XV MISCELLANEOUS PROVISIONS 53
Section 15.1. Effect on Successors and Assigns 53
Section 15.2. Actions by Successor 53
Section 15.3. Surrender of the Company Powers 54
Section 15.4. Notices 54
Section 15.5. Governing Law 54
Section 15.6. Treatment of the Debentures as Debt 54
Section 15.7. Compliance Certificates and Opinions 54
Section 15.8. Payments on Business Days 55
Section 15.9. Conflict with Trust Indenture Act 55
Section 15.10. Counterparts 55
Section 15.11. Separability 55
Section 15.12. Assignment 56
Section 15.13. Acknowledgment of Rights; Right of Setoff 56
ARTICLE XVI SUBORDINATION OF THE DEBENTURES 56
Section 16.1. Agreement to Subordinate 56
Section 16.2. Default on Senior Indebtedness 57
Section 16.3. Liquidation; Dissolution; Bankruptcy 57
Section 16.4. Subrogation 59
Section 16.5. The Trustee to Effectuate Subordination 60
Section 16.6. Notice by the Company 60
Section 16.7. Rights of the Trustee; Holders of the Senior
Indebtedness 60
Section 16.8. Subordination May Not Be Impaired 61
EXHIBITS
Exhibit A Form of Face of Debenture
iii
CROSS-REFERENCE TABLE
Certain Sections of this Indenture relating to Sections 310 through 318
of the Trust Indenture Act of 1939.
Trust Indenture Indenture
Act Section Section
----------- -------
310(a) 9.10
310(b) 9.9, 9.11
310(c) Not Applicable
311(a) 9.14
311(b) 9.14
311(c) Not Applicable
312(a) 6.1, 6.2(a)
312(b) 6.2(c)
312(c) 6.1, 6.2
313(a) 6.4(a)
313(b) 6.4(b)
313(c) 6.4(a), 6.4(b)
313(d) 6.4(c)
314(a) 6.3(a)
314(b) Not Applicable
314(c) 15.7
314(d) Not Applicable
314(e) 15.7
314(f) Not Applicable
315(a) 9.1(a), 9.3
315(b) 9.2
315(c) 9.1(a)
315(d) 9.1(b)
315(e) 7.7
316(a) 1.1, 7.6
316(b) 10.1(b)
317(a) 7.2
317(b) 5.3
318(a) 15.9
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
2
INDENTURE
THIS INDENTURE, dated as of August ____, 2002, between NATIONAL PENN
BANCSHARES, INC., a Pennsylvania business corporation and a registered bank
holding company (the "Company"), and CHRISTIANA BANK & TRUST COMPANY, a banking
corporation duly organized and existing under the laws of the State of Delaware,
as trustee (the "Trustee").
RECITALS
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance of securities to be known as its
_______ % Subordinated Debentures due 2032 (hereinafter referred to as the
"Debentures"), the form and substance of such Debentures and the terms,
provisions and conditions thereof to be set forth as provided in this Indenture;
and
WHEREAS, NPB Capital Trust II, a Delaware statutory business trust (the
"Trust"), has offered to the public $55,000,000 aggregate liquidation amount of
its Preferred Securities (as defined herein) ($63,250,000 if the Underwriters
exercise their Option (as defined herein)) and proposes to invest the proceeds
from such offering, together with the proceeds of the issuance and sale by the
Trust to the Company of $1,701,025 aggregate liquidation amount of its Common
Securities (as defined herein) ($1,956,175 if the Underwriters exercise their
Option) in $56,701,025 aggregate principal amount of the Debentures ($65,206,175
if the Underwriters exercise their Option); and
WHEREAS, the Company has requested that the Trustee execute and deliver
this Indenture; and
WHEREAS, all requirements necessary to make this Indenture a valid
instrument in accordance with its terms, and to make the Debentures, when
executed by the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company, have been performed, and the execution and
delivery of this Indenture have been duly authorized in all respects; and
WHEREAS, to provide the terms and conditions upon which the Debentures
are to be authenticated, issued and delivered, the Company has duly authorized
the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
3
NOW, THEREFORE, in consideration of the premises and the purchase of
the Debentures by the holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the holders of the Debentures:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions of Terms. The terms defined in this Section
1.1 (except as in this Indenture otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in
this Section 1.1 and shall include the plural as well as the singular. All other
terms used in this Indenture that are defined in the Trust Indenture Act, or
that are by reference in the Trust Indenture Act defined in the Securities Act
(except as herein otherwise expressly provided or unless the context otherwise
requires), shall have the meanings assigned to such terms in the Trust Indenture
Act and in the Securities Act as in force at the date of the execution of this
instrument. Capitalized terms used in this Indenture and not otherwise defined
herein or in the Trust Indenture Act shall have the meanings given in the Trust
Agreement. All accounting terms used herein and not expressly defined shall have
the meanings assigned to such terms in accordance with Generally Accepted
Accounting Principles.
"Accelerated Maturity Date" means if the Company elects to accelerate
the Maturity Date in accordance with Section 2.2(b), the date selected by the
Company which is prior to the Scheduled Maturity Date, but is after September
30, 2007.
"Additional Payments" shall have the meaning set forth in Section
2.5(c).
"Additional Senior Obligations" means all indebtedness of the Company
whether incurred on or prior to the date of this Indenture or thereafter
incurred, for claims in respect of derivative products such as interest and
foreign exchange rate contracts, commodity contracts and similar arrangements;
provided, however, that Additional Senior Obligations does not include claims in
respect of Senior Debt or Subordinated Debt or obligations which, by their
terms, are expressly stated to be not superior in right of payment to the
Debentures or to rank pari passu in right of payment with the Debentures. For
purposes of this definition, "claim" shall have the meaning assigned thereto in
Section 101(4) of the United States Bankruptcy Code of 1978, as amended.
"Administrative Trustees" shall have the meaning set forth in the Trust
Agreement.
"Affiliate" means, with respect to a specified Person, (a) any other
Person directly or indirectly owning, controlling or holding with power to vote
10% or more of the outstanding voting securities or other ownership interests of
the specified Person; (b) any other Person 10% or more of whose outstanding
voting securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person; (c) any other
4
Person directly or indirectly controlling, controlled by, or under common
control with the specified Person; (d) a partnership in which the specified
Person is a general partner; (e) any officer or director of the specified
Person; and (f) if the specified Person is an individual, any entity of which
the specified Person is an officer, director or general partner.
"Authenticating Agent" means an authenticating agent with respect to
the Debentures appointed by the Trustee pursuant to Section 2.12.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"Business Day" means, with respect to the Debentures, any day other
than a Saturday or a Sunday or a day on which federal or state banking
institutions in Wilmington, Delaware are authorized or required by law,
executive order or regulation to close, or a day on which the Corporate Trust
Office of the Trustee or the Property Trustee is closed for business.
"Capital Treatment Event" means the receipt by the Company and the
Trust of an Opinion of Counsel, rendered by counsel experienced in such matters
within a reasonable period of time after the applicable occurrence, to the
effect that, as a result of any amendment to or change (including any announced
prospective change) in the laws (or any regulations thereunder) of the United
States or any political subdivision thereof or therein, or as a result of any
official or administrative pronouncement, action or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or, which pronouncement, action or judicial decision is announced on
or after the date of issuance of the Preferred Securities under the Trust
Agreement, there is or would be within 90 days of such Opinion of Counsel more
than an insubstantial risk of impairment of the Company's ability to treat the
aggregate Liquidation Amount (as defined in the Trust Agreement) of the
Preferred Securities (or any substantial portion thereof) as Tier 1 capital (or
the then equivalent thereof) for purposes of the capital adequacy guidelines of
the Federal Reserve or other regulatory agency, as then in effect and applicable
to the Company or as would be applicable to the Company if it were a holding
company regulated by the Federal Reserve; provided, however, that the Trust or
the Company shall have requested and received such an Opinion of Counsel with
regard to such matters within a reasonable period of time after the Trust or the
Company shall have become aware of the occurrence or the possible occurrence of
any of the events described above; provided, however, that the distribution of
Debentures in connection with the liquidation of the Trust by the Company shall
not in and of itself constitute a Capital Treatment Event unless such
liquidation shall have occurred in connection with a Tax Event or an Investment
Company Event.
5
"Change in 1940 Act Law" shall have the meaning set forth in the
definition of "Investment Company Event."
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Securities" means undivided beneficial interests in the assets
of the Trust which rank pari passu with the Preferred Securities; provided,
however, that upon the occurrence and during the continuation of an Event of
Default, the rights of holders of Common Securities to (a) payment in respect of
distributions, and (b) payments upon liquidation, redemption and otherwise, are
subordinated to the rights of holders of Preferred Securities.
"Company" means National Penn Bancshares, Inc., a Pennsylvania business
corporation and registered bank holding company, and, subject to the provisions
of Article XII, shall also include its successors and assigns.
"Compounded Interest" shall have the meaning set forth in Section 4.1.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 0000 Xxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx00000, Attention: Corporate Trust Administration, or at any
other time at such other address located within the United States as the Trustee
may designate from time to time by notice to the Debenture holders and the
Company.
"Coupon Rate" shall have the meaning set forth in Section 2.5.
"Custodian" means any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Debentures" shall have the meaning set forth in the Recitals hereto.
"Debenture holder," "holder of Debentures," "registered holder," or
other similar term, means the Person or Persons in whose name or names a
particular Debenture shall be registered on the Debenture Register.
"Debenture Register" shall have the meaning set forth in Section
2.7(b).
"Debenture Registrar" shall have the meaning set forth in Section
2.7(b).
6
"Debt" means with respect to any Person, whether recourse is to all or
a portion of the assets of such Person and whether or not contingent, (a) every
obligation of such Person for money borrowed; (b) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (c) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (d) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (e) every capital lease obligation of such Person; and (f) every
obligation of the type referred to in clauses (a) through (e) of another Person
and all dividends and distributions of another Person the payment of which, in
either case, such Person has guaranteed or is responsible or liable, directly or
indirectly, as obligor or otherwise.
"Default" means any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Deferred Payments" shall have the meaning set forth in Section 4.1.
"Direct Action" shall have the meaning set forth in Section 7.8.
"Dissolution Event" means that as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance with
the Trust Agreement and the Debentures held by the Property Trustee are to be
distributed to the holders of the Trust Securities issued by the Trust pro rata
in accordance with the Trust Agreement.
"Distribution" shall have the meaning set forth in the Trust Agreement.
"Event of Default" means, with respect to the Debentures, any event
specified in Section 7.1, which has continued for the period of time, if any,
and after the giving of the notice, if any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
as in effect at the date of execution of this Indenture.
"Extension Period" shall have the meaning set forth in Section 4.1.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Guarantee" shall have the meaning set forth in the Trust Agreement.
"Generally Accepted Accounting Principles" means such accounting
principles as are generally accepted in the United States at the time of any
computation required hereunder, consistently applied.
7
"Governmental Obligations" means securities that are (a) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged; or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America that, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the holder of
such depositary receipt; provided, however, that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"Herein," "hereof," and "hereunder," and other words of similar import,
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into in accordance with the terms hereof.
"Interest Payment Date" shall have the meaning set forth in Section
2.5(a).
"Investment Company Act" means the Investment Company Act of 1940, as
amended, as in effect at the date of execution of this Indenture.
"Investment Company Event" means the receipt by the Trust and the
Company of an Opinion of Counsel, rendered by counsel experienced in such
matters within a reasonable amount of time after the applicable occurrence, to
the effect that, as a result of the occurrence of a change in law or regulation
or a written change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority (a "Change
in 1940 Act Law"), the Trust is or within 90 days of the date of such Opinion of
Counsel shall be considered an "investment company" that is required to be
registered under the Investment Company Act, which Change in 1940 Act Law
becomes effective or shall become effective, as the case may be, on or after the
date of original issuance of the Preferred Securities under the Trust Agreement;
provided, however, that the Trust or the Company shall have requested and
received such an Opinion of Counsel with regard to such matters within a
reasonable period of time after the Trust or the Company shall have become aware
of the occurrence or the possible occurrence of any such Change in 1940 Act Law.
"Maturity Date" means the date on which the Debentures mature and on
which the principal shall be due and payable together with all accrued and
unpaid interest thereon including Compounded Interest and Additional Payments,
if any.
8
"Ministerial Action" shall have the meaning set forth in Section 3.2.
"Officers' Certificate" means a certificate signed by the chairman,
president, chief executive officer or a senior or executive vice president and
by the treasurer or an assistant treasurer or the controller or an assistant
controller or the secretary or an assistant secretary of the Company that is
delivered to the Trustee in accordance with the terms hereof. Each such
certificate shall include the statements provided for in Section 15.7, if and to
the extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of independent,
outside legal counsel for the Company, that is delivered to the Trustee in
accordance with the terms hereof. Each such opinion shall include the statements
provided for in Section 15.7, if and to the extent required by the provisions
thereof.
"Outstanding," when used with reference to the Debentures, means,
subject to the provisions of Section 10.4, as of any particular time, all
Debentures theretofore authenticated and delivered by the Trustee under this
Indenture, except (a) Debentures theretofore canceled by the Trustee or any
Paying Agent, or delivered to the Trustee or any Paying Agent for cancellation
or that have previously been canceled; (b) Debentures or portions thereof for
the payment or redemption of which money or Governmental Obligations in the
necessary amount shall have been deposited in trust with the Trustee or with any
Paying Agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own Paying
Agent); provided, however, that, if such Debentures or portions of such
Debentures are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article III provided, or provision
satisfactory to the Trustee shall have been made for giving such notice; and (c)
Debentures in lieu of or in substitution for which other Debentures shall have
been authenticated and delivered pursuant to the terms of Section 2.7 or Section
2.9; provided, however, that in determining whether the holders of the requisite
percentage of Debentures have given any request, notice, consent or waiver
hereunder, Debentures held by the Company or any Affiliate of the Company (other
than the Trust or a trustee of that Trust) shall not be included; provided,
further, that the Trustee shall be protected in relying upon any request,
notice, consent or waiver unless a Responsible Officer of the Trustee shall have
actual knowledge that the holder of such Debenture is the Company or an
Affiliate thereof (other than the Trust or a trustee of that Trust).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.3.
"Person" means any individual, corporation, partnership, joint-venture,
limited liability company, trust, joint-stock company, unincorporated
organization or government or any agency or political subdivision thereof.
"Predecessor Debenture" of any particular Debenture means every
previous Debenture
9
evidencing all or a portion of the same debt as that evidenced by such
particular Debenture; and, for the purposes of this definition, any Debenture
authenticated and delivered under Section 2.7 or 2.9 in lieu of a lost,
destroyed or stolen Debenture shall be deemed to evidence the same debt as the
lost, destroyed or stolen Debenture.
"Preferred Securities" means the ______% Cumulative Trust Preferred
Securities representing undivided beneficial interests in the assets of the
Trust which rank pari passu with Common Securities issued by the Trust;
provided, however, that upon the occurrence and during the continuation of an
Event of Default, the rights of holders of Common Securities to (a) payments in
respect of distributions, and (b) payments upon liquidation, redemption and
otherwise, are subordinated to the rights of holders of Preferred Securities.
"Property Trustee" has the meaning set forth in the Trust Agreement.
"Redemption Price" shall have the meaning set forth in Section 3.2.
"Responsible Officer" when used with respect to the Trustee means any
officer within the Corporate Trust Office of the Trustee with direct
responsibility for the administration of this Indenture, including any vice
president, any assistant vice president, managing director, director, associate
or any other officer or assistant officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Scheduled Maturity Date" means September 30, 2032.
"Securities Act" means the Securities Act of 1933, as amended, as in
effect at the date of execution of this Indenture.
"Senior Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on all
Debt, whether incurred on or prior to the date of this Indenture or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Debentures or to other Debt that is pari
passu with, or subordinated to, the Debentures; provided, that Senior Debt shall
not be deemed to include (a) any Debt of the Company which when incurred and
without respect to any election under section 1111(b) of the United States
Bankruptcy Code of 1978, as amended, was without recourse to the Company; (b)
the Guarantee; (c) Debt to any employee of the Company; (d) Debt which by its
terms is subordinated to trade accounts payable or accrued liabilities arising
in the ordinary course of business to the extent that payments made to the
holders of such Debt by the holders of the Debentures as a result of the
subordination provisions of this Indenture would be greater than they otherwise
would have been as a result of any obligation of such holders to pay amounts
over to the obligees on such trade
10
accounts payable or accrued liabilities arising in the ordinary course of
business as a result of subordination provisions to which such Debt is subject;
(e) any Debt of the Company under debt securities (and guarantees in respect of
these debt securities) initially issued to any trust, or a trustee of a trust,
partnership or other entity affiliated with the Company that is, directly or
indirectly, a financing vehicle of the Company in connection with the issuance
by that entity of preferred securities or other securities which are intended to
qualify for Tier 1 capital treatment; and (f) Debt which constitutes
Subordinated Debt.
"Senior Indebtedness" shall have the meaning set forth in Section 16.1.
"Special Event" means a Tax Event, a Capital Treatment Event or an
Investment Company Event.
"Subordinated Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on
Debt (other than the Debentures), whether incurred on or prior to the date of
this Indenture or thereafter incurred, which is by its terms expressly provided
to be junior and subordinate to other Debt of the Company (other than the
Debentures); provided, however, that Subordinated Debt will not be deemed to
include (a) any Debt of the Company which when incurred and without respect to
any election under section 1111(b) of the United States Bankruptcy Code of 1978,
as amended, was without recourse to the Company; (b) Debt which constitutes
Senior Debt; (c) Debt to any employee of the Company; and (d) Debt which by its
terms is subordinated to trade accounts payable or accrued liabilities arising
in the ordinary course of business to the extent that payments made to the
holders of such Debt by the holders of the Debentures as a result of the
subordination provisions of this Indenture would be greater than they otherwise
would have been as a result of any obligation of such holders to pay amounts
over to the obligees on such trade accounts payable or accrued liabilities
arising in the ordinary course of business as a result of subordination
provisions to which such Debt is subject.
"Subsidiary" means, with respect to any Person, (a) any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries or
by such Person and one or more of its Subsidiaries; (b) any general partnership,
limited liability company, joint venture, trust or similar entity, at least a
majority of whose outstanding partnership or similar interests shall at the time
be owned by such Person, or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries; and (c) any limited partnership of
which such Person or any of its Subsidiaries is a general partner.
"Tax Event" means the receipt by the Company and the Trust of an
Opinion of Counsel, rendered by counsel experienced in such matters within a
reasonable amount of time after the applicable occurrence, to the effect that,
as a result of any amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United
11
States or any political subdivision or taxing authority thereof or therein, or
as a result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is announced on or after the date
of issuance of the Preferred Securities under the Trust Agreement, there is more
than an insubstantial risk that (a) the Trust is, or shall be within ninety (90)
days after the date of such Opinion of Counsel, subject to United States federal
income tax with respect to income received or accrued on the Debentures; (b)
interest payable by the Company on the Debentures is not, or within ninety (90)
days after the date of such Opinion of Counsel, shall not be, deductible by the
Company, in whole or in part, for United States federal income tax purposes; or
(c) the Trust is, or shall be within ninety (90) days after the date of such
Opinion of Counsel, subject to more than an immaterial amount of other taxes,
duties, assessments or other governmental charges; provided, however, that the
Trust or the Company shall have requested and received such an Opinion of
Counsel with regard to such matters within a reasonable period of time after the
Trust or the Company shall have become aware of the occurrence or the possible
occurrence of any of the events described in clauses (a) through (c) above.
"Trust" means NPB Capital Trust II, a Delaware statutory business
trust.
"Trust Agreement" means the Amended and Restated Trust Agreement, dated
as of August ___, 2002, of the Trust, as amended or supplemented from time to
time.
"Trustee" means Christiana Bank & Trust Company, a banking corporation
organized under the laws of the State of Delaware, and, subject to the
provisions of Article IX, shall also include its successors and assigns, and, if
at any time there is more than one Person acting in such capacity hereunder,
"Trustee" shall mean each such Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, subject to the provisions of Sections 11.1, 11.2, and 12.1, as in
effect at the date of execution of this Indenture.
"Trust Securities" means the Common Securities and Preferred
Securities, collectively.
"Voting Stock," as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than shares,
interests, participations or other equivalents having such power only by reason
of the occurrence of a contingency.
12
ARTICLE II
ISSUE, DESCRIPTION, TERMS, CONDITIONS,
REGISTRATION AND EXCHANGE OF THE DEBENTURES
Section 2.1. Designation and Principal Amount.
There are hereby authorized Debentures designated the "____%
Subordinated Debentures due 2032," limited in aggregate principal amount up to
$56,701,025 ($65,206,175 if the Underwriter exercises the Option), which amount
shall be as set forth in any written order of the Company for the authentication
and delivery of Debentures pursuant to Section 2.6.
Section 2.2. Maturity.
(a) The Maturity Date shall be either:
(i) the Scheduled Maturity Date; or
(ii) if the Company elects to accelerate the Maturity Date to
be a date prior to the Scheduled Maturity Date in accordance with
Section 2.2 (b) and (c), the Accelerated Maturity Date.
(b) The Company may at any time before the day which is ninety (90)
days before the Scheduled Maturity Date and after September 30, 2007, elect to
shorten the Maturity Date once to the Accelerated Maturity Date, provided that
the Company has received all required regulatory approvals.
(c) If the Company elects to accelerate the Maturity Date in accordance
with Section 2.2(b), the Company shall give written notice to the Trustee and
the Trust (unless the Trust is not the holder of all of the Debentures, in which
case the Trustee will give notice to the holders of the Debentures) of the
acceleration of the Maturity Date and the Accelerated Maturity Date at least
thirty (30) days and no more than 180 days before the Accelerated Maturity Date;
provided, however, that nothing provided in this Section 2.2 shall limit the
Company's rights, as provided in Article III hereof, to redeem all or a portion
of the Debentures at such time or times on or after September 30, 2007, as the
Company may so determine, or at any time upon the occurrence of a Special Event.
(d) All principal and accrued interest on the Debentures, unless paid
prior thereto, shall be due and payable in full on the Maturity Date.
Section 2.3. Form and Payment.
The Debentures shall be issued in fully registered certificated form
without interest coupons. Principal and interest on the Debentures issued in
certificated form shall be payable, the
13
transfer of such Debentures shall be registrable and such Debentures shall be
exchangeable for Debentures bearing identical terms and provisions at the office
or agency of the Trustee; provided, however, that payment of interest may be
made at the option of the Company by check mailed to the holder at such address
as shall appear in the Debenture Register or by wire transfer to an account
maintained by the holder as specified in the Debenture Register, provided that
the holder provides proper transfer instructions by the regular record date.
Notwithstanding the foregoing, so long as the holder of any Debentures is the
Property Trustee, the payment of principal of and interest (including Compounded
Interest and Additional Payments, if any) on such Debentures held by the
Property Trustee shall be made at such place and to such account as may be
designated by the Property Trustee.
Section 2.4. [Intentionally Omitted].
Section 2.5. Interest.
(a) Each Debenture shall bear interest at a rate of __ % per annum (the
"Coupon Rate") on the principal thereof from the original date of issuance until
the date the principal thereof becomes due and payable and on any overdue
principal and (to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the Coupon Rate,
compounded quarterly, payable (subject to the provisions of Article IV)
quarterly in arrears on March 31, June 30, September 30, and December 31 of each
year (each, an "Interest Payment Date"), commencing on September 30, 2002, to
the Person in whose name such Debenture or any Predecessor Debenture is
registered, at the close of business on the regular record date for such
interest installment, which shall be the fifteenth day of the last month of the
calendar quarter. Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the registered holders on
such regular record date and may be paid to the Person in whose name the
Debenture (or one or more Predecessor Debentures) is registered at the close of
business on a special record date to be fixed by the Trustee for the payment of
such defaulted interest, notice thereof shall be fixed by the Trustee for the
payment of such defaulted interest, notice thereof shall be given to the
registered holders of the Debentures not less than 10 days prior to such special
record date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange or quotation
system on or in which the Debentures may be listed or quoted, if any, and upon
such notice as may be required by such exchange.
(b) The amount of interest payable for any period shall be computed on
the basis of a 360-day year of twelve 30-day months. The amount of interest
payable for any period shorter than a full quarterly period for which interest
is computed shall be computed on the basis of the number of days elapsed in a
360-day year of twelve 30-day months. In the event that any date on which
interest is payable on the Debentures is not a Business Day, then payment of
interest payable on such date shall be made on the next succeeding day which is
a Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day (and
without any reduction of interest or any other payment in respect of
14
any such acceleration), in each case with the same force and effect as if made
on the date such payment was originally payable.
(c) If, at any time while the Property Trustee is the holder of any
Debentures, the Trust or the Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing authority,
then, in any case, the Company shall pay as additional payments ("Additional
Payments") on the Debentures held by the Property Trustee, such additional
amounts as shall be required so that the net amounts received and retained by
the Trust and the Property Trustee after paying such taxes, duties, assessments
or other governmental charges shall be equal to the amounts the Trust and the
Property Trustee would have received had no such taxes, duties, assessments or
other government charges been imposed.
Section 2.6. Execution and Authentication.
(a) The Debentures shall be signed on behalf of the Company by its
chairman, president, chief executive officer, or one of its senior or executive
vice presidents, under its corporate seal attested by its secretary or one of
its assistant secretaries. Signatures may be in the form of a manual or
facsimile signature. The Company may use the facsimile signature of any Person
who shall have been chairman, president, chief executive officer or a senior or
executive vice president thereof, or of any Person who shall have been a
secretary or assistant secretary thereof, notwithstanding the fact that at the
time the Debentures shall be authenticated and delivered or disposed of such
Person shall have ceased to be the chairman, president, chief executive officer
or a senior or executive vice president, or the secretary or an assistant
secretary, of the Company (and any such signature shall be binding on the
Company). The seal of the Company may be in the form of a facsimile of such seal
and may be impressed, affixed, imprinted or otherwise reproduced on the
Debentures. The Debentures may contain such notations, legends or endorsements
required by law, stock exchange rule or usage. Each Debenture shall be dated the
date of its authentication by the Trustee.
(b) A Debenture shall not be valid until manually authenticated by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Debenture so authenticated has
been duly authenticated and delivered hereunder and that the holder is entitled
to the benefits of this Indenture.
(c) At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Debentures executed by the Company to
the Trustee for authentication, together with a written order of the Company for
the authentication and delivery of such Debentures signed by its chairman,
president, chief executive officer, or any senior or executive vice president
and its treasurer or any assistant treasurer, and the Trustee in accordance with
such written order shall authenticate and deliver such Debentures.
(d) In authenticating such Debentures and accepting the additional
responsibilities under this Indenture in relation to such Debentures, the
Trustee shall be entitled to receive, and (subject
15
to Section 9.1) shall be fully protected in relying upon, an Opinion of Counsel
stating that the form and terms thereof have been established in conformity with
the provisions of this Indenture.
(e) The Trustee shall not be required to authenticate such Debentures
if the issue of such Debentures pursuant to this Indenture shall affect the
Trustee's own rights, duties or immunities under the Debentures and this
Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee.
Section 2.7. Registration of Transfer and Exchange.
(a) Debentures may be exchanged upon presentation thereof at the office
or agency of the Company designated for such purpose as specified in Section 5.2
or at the office of the Debenture Registrar (as defined below), for other
Debentures and for a like aggregate principal amount in denominations of
integral multiples of $25, upon payment of a sum sufficient to cover any tax or
other governmental charge in relation thereto, all as provided in this Section
2.7. In respect of any Debentures so surrendered for exchange, the Company shall
execute, the Trustee shall authenticate and such office or agency shall deliver
in exchange therefor the Debenture or Debentures that the Debenture holder
making the exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose as specified in Section 5.2 or at the office
of the Debenture Registrar, a register or registers (herein referred to as the
"Debenture Register") in which, subject to such reasonable regulations as the
Debenture Registrar may prescribe, the Company shall register the Debentures and
the transfers of Debentures as in this Article II provided and which at all
reasonable times shall be open for inspection by the Trustee. The registrar for
the purpose of registering Debentures and transfer of Debentures as herein
provided shall initially be the Trustee and thereafter as may be appointed by
the Company as authorized by Board Resolution (the "Debenture Registrar"). Upon
surrender for transfer of any Debenture at the office or agency of the Company
designated for such purpose, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in the name of the
transferee or transferees a new Debenture or Debentures for a like aggregate
principal amount. All Debentures presented or surrendered for exchange or
registration of transfer, as provided in this Section 2.7, shall be accompanied
(if so required by the Company or the Debenture Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company or
the Debenture Registrar, duly executed by the registered holder or by such
holder's duly authorized attorney in writing.
(c) No service charge shall be made for any exchange or registration of
transfer of Debentures, or issue of new Debentures in case of partial
redemption, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge in relation thereto, other than exchanges
pursuant to Section 2.8, Section 3.5(b) and Section 11.4 not involving any
transfer.
16
(d) The Company shall not be required (i) to issue, exchange or
register the transfer of any Debentures during a period beginning at the opening
of business fifteen (15) days before the day of mailing of a notice of
redemption and ending on the close of business on the day of such mailing; nor
(ii) to register the transfer of or exchange any Debentures or portions thereof
called for redemption except, in the case of any Debentures being redeemed in
part, any portion not to be redeemed.
(e) Debentures may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Indenture. Any
transfer or purported transfer of any Debenture not made in accordance with this
Indenture shall be null and void.
Section 2.8. Temporary Debentures.
Pending the preparation of definitive Debentures, the Company may
execute, and the Trustee shall authenticate and deliver, temporary Debentures
(printed, lithographed, or typewritten). Such temporary Debentures shall be
substantially in the form of the definitive Debentures in lieu of which they are
issued, but with such omissions, insertions and variations as may be appropriate
for temporary Debentures, all as may be determined by the Company. Every
temporary Debenture shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Debentures. Without unnecessary delay, the
Company shall execute and shall furnish definitive Debentures and thereupon any
or all temporary Debentures may be surrendered in exchange therefor (without
charge to the holders), at the office or agency of the Company designated for
the purpose and the Trustee shall authenticate and such office or agency shall
deliver in exchange for such temporary Debentures an equal aggregate principal
amount of definitive Debentures, unless the Company advises the Trustee to the
effect that definitive Debentures need not be authenticated and furnished until
further notice from the Company. Until so exchanged, the temporary Debentures
shall be entitled to the same benefits under this Indenture as definitive
Debentures authenticated and delivered hereunder.
Section 2.9. Mutilated, Destroyed, Lost or Stolen Debentures.
(a) In case any temporary or definitive Debenture shall become
mutilated or be destroyed, lost or stolen, the Company (subject to the next
succeeding sentence) shall execute, and upon the Company's written request the
Trustee (subject as aforesaid) shall authenticate and deliver, a new Debenture
bearing a number not contemporaneously outstanding, in exchange and substitution
for the mutilated Debenture, or in lieu of and in substitution for the Debenture
so destroyed, lost, stolen or mutilated. In every case the applicant for a
substituted Debenture shall furnish to the Company and the Trustee such security
or indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and the Trustee evidence to their satisfaction of the destruction,
loss or theft of the applicant's Debenture and of the ownership thereof. The
Trustee shall authenticate any such substituted Debenture and deliver the same
upon the written request or authorization of the chairman, president, chief
executive officer or any senior or executive vice president and the
17
treasurer or any assistant treasurer of the Company. Upon the issuance of any
substituted Debenture, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith. In case any Debenture that has matured or is about to
mature or has been called for redemption in full shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substitute
Debenture, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Debenture) if the applicant for such payment
shall furnish to the Company and the Trustee such security or indemnity as they
may require to save them harmless, and, in case of destruction, loss or theft,
evidence to the satisfaction of the Company and the Trustee of the destruction,
loss or theft of such Debenture and of the ownership thereof.
(b) Every replacement Debenture issued pursuant to the provisions of
this Section 2.9 shall constitute an additional contractual obligation of the
Company whether or not the mutilated, destroyed, lost or stolen Debenture shall
be found at any time, or be enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Debentures duly issued hereunder. All Debentures shall be held and owned
upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Debentures, and shall preclude (to the extent lawful) any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
Section 2.10. Cancellation.
All Debentures surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the Company or any
Paying Agent, be delivered to the Trustee for cancellation, or, if surrendered
to the Trustee, shall be canceled by it, and no Debentures shall be issued in
lieu thereof except as expressly required or permitted by any of the provisions
of this Indenture. On written request of the Company at the time of such
surrender, the Trustee shall deliver to the Company canceled Debentures held by
the Trustee. In the absence of such request the Trustee may dispose of canceled
Debentures in accordance with its standard procedures and deliver a certificate
of disposition to the Company. If the Company shall otherwise acquire any of the
Debentures, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Debentures unless and until
the same are delivered to the Trustee for cancellation.
Section 2.11. Benefit of Indenture.
Nothing in this Indenture or in the Debentures, express or implied,
shall give or be construed to give to any Person, other than the parties hereto
and the holders of the Debentures (and, with respect to the provisions of
Article XVI, the holders of the Senior Indebtedness; and with respect to the
provisions of Sections 3.3(c), 7.6, 7.8, 11.2 and 15.13, the holders of the
Preferred Securities or Trust Securities, as the case may be) any legal or
equitable right, remedy
18
or claim under or in respect of this Indenture, or under any covenant, condition
or provision herein contained; all such covenants, conditions and provisions
being for the sole benefit of the parties hereto and of the holders of the
Debentures (and, with respect to the provisions of Article XVI, the holders of
the Senior Indebtedness; and with respect to the provisions of Sections 3.3(c),
7.6, 7.8, 11.2 and 15.13, the holders of the Preferred Securities or Trust
Securities, as the case may be).
Section 2.12. Authentication Agent.
(a) So long as any of the Debentures remain Outstanding there may be an
Authenticating Agent for any or all such Debentures, which Authenticating Agent
the Trustee shall have the right to appoint. Said Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate Debentures issued
upon exchange, transfer or partial redemption thereof, and Debentures so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. All references in this Indenture to the authentication of Debentures
by the Trustee shall be deemed to include authentication by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company and shall be
a corporation that has a combined capital and surplus, as most recently reported
or determined by it, sufficient under the laws of any jurisdiction under which
it is organized or in which it is doing business to conduct a trust business,
and that is otherwise authorized under such laws to conduct such business and is
subject to supervision or examination by federal or state authorities. If at any
time any Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately.
(b) Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time (and upon written request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint a
successor Authenticating Agent eligible under the provisions of Section 2.12(a)
of this Indenture. Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder as if originally named as an Authenticating
Agent pursuant hereto.
Section 2.13. CUSIP Numbers.
The Company in issuing the Debentures may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Debenture holders; provided, that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Debentures or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Debentures, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee in writing of any change in the CUSIP numbers.
19
ARTICLE III
REDEMPTION OF DEBENTURES
Section 3.1. Redemption.
Subject to the Company having received all required regulatory
approvals, the Company may redeem the Debentures issued hereunder on and after
the dates set forth in and in accordance with the terms of this Article III.
Section 3.2. Special Event Redemption.
Subject to the Company having received all required regulatory
approvals, if a Special Event has occurred and is continuing, then,
notwithstanding Section 3.3(a) but subject to Section 3.3(b), the Company shall
have the right upon not less than thirty (30) days' nor more than sixty (60)
days' notice to the holders of the Debentures as provided in Section 3.4(a) to
redeem the Debentures, in whole but not in part, for cash within 180 days
following the occurrence of such Special Event (the "180-Day Period") at a
redemption price equal to 100% of the principal amount to be redeemed plus any
accrued and unpaid interest thereon to the date of such redemption (the
"Redemption Price"), provided that if at the time there is available to the
Company the opportunity to eliminate, within the 180-Day Period, a Tax Event by
taking some ministerial action (a "Ministerial Action"), such as filing a form
or making an election, or pursuing some other similar reasonable measure which
has no adverse effect on the Company, the Trust or the holders of the Trust
Securities issued by the Trust, the Company shall pursue such Ministerial Action
in lieu of redemption, and, provided further, that the Company shall have no
right to redeem the Debentures pursuant to this Section 3.2 while it is pursuing
any Ministerial Action pursuant to its obligations hereunder, and, provided
further, that, if it is determined that the taking of a Ministerial Action would
not eliminate the Tax Event within the 180 Day Period, the Company's right to
redeem the Debentures pursuant to this Section 3.2 shall be restored and it
shall have no further obligations to pursue the Ministerial Action. The
Redemption Price shall be paid as set forth in the notice of redemption prior to
12:00 noon, Delaware time, on the date of such redemption, provided that the
Company shall deposit with the Trustee an amount sufficient to pay the
Redemption Price by 10:00 a.m., Delaware time, on the date such Redemption Price
is to be paid.
Section 3.3. Optional Redemption by the Company.
(a) Subject to the provisions of Section 3.3(c), except as otherwise
may be specified in this Indenture, the Company shall have the right to redeem
the Debentures, in whole or in part, from time to time, on or after September
30, 2007, at a Redemption Price equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid interest thereon to the date of such
redemption. Any redemption pursuant to this Section 3.3(a) shall be made upon
not less than
20
thirty (30) days' nor more than sixty (60) days' notice to the holders of the
Debentures as set forth in 3.4(a) at the Redemption Price. If the Debentures are
only partially redeemed pursuant to this Section 3.3(a), the Debentures shall be
redeemed pro rata or by lot or in such other manner as is set forth in Section
3.4(b). The Redemption Price shall be paid prior to 12:00 noon, Delaware time,
on the date of such redemption or at such earlier time as the Company determines
provided that the Company shall deposit with the Trustee an amount sufficient to
pay the Redemption Price by 10:00 a.m., Delaware time, on the date such
Redemption Price is to be paid.
(b) Subject to the provisions of Section 3.3(c), the Company shall have
the right to redeem Debentures at any time and from time to time in a principal
amount equal to the Liquidation Amount (as defined in the Trust Agreement) of
any Preferred Securities purchased and beneficially owned by the Company, plus
an additional principal amount of Debentures equal to the Liquidation Amount of
that number of Common Securities that bears the same proportion to the total
number of Common Securities then outstanding as the number of Preferred
Securities to be redeemed bears to the total number of Preferred Securities then
outstanding. Such Debentures shall be redeemed pursuant to this Section 3.3(b)
only in exchange for and upon surrender by the Company to the Property Trustee
of the Preferred Securities and a proportionate amount of Common Securities,
whereupon the Property Trustee shall cancel the Preferred Securities and Common
Securities so surrendered and a Like Amount (as defined in the Trust Agreement)
of Debentures shall be deemed cancelled and extinguished by the Trustee and
shall no longer be deemed Outstanding.
(c) If a partial redemption of the Debentures would result in the
termination of inclusion of the Preferred Securities in the Nasdaq National
Market or the delisting of the Preferred Securities from any national securities
exchange or other self-regulatory organization on or in which the Preferred
Securities are then included, listed, quoted or included, the Company shall not
be permitted to effect such partial redemption and may only redeem the
Debentures in whole.
Section 3.4. Notice of Redemption.
(a) Except in the case of a redemption pursuant to Section 3.3(b), in
case the Company shall desire to exercise such right to redeem all or, as the
case may be, a portion of the Debentures in accordance with the right reserved
so to do, the Company shall, or shall cause the Trustee to upon receipt of
forty-five (45) days' written notice from the Company (which notice shall, in
the event of a partial redemption, include a representation to the effect that
such partial redemption will not result in the delisting of the Preferred
Securities as described in Section 3.3(c) above), give notice of such redemption
to holders of the Debentures to be redeemed by mailing, first class postage
prepaid, a notice of such redemption not less than thirty (30) days and not more
than sixty (60) days before the date fixed for redemption to such holders at
their last addresses as they shall appear upon the Debenture Register unless a
shorter period is specified in the Debentures to be redeemed. Any notice that is
mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the registered holder receives the notice. In any
case, failure duly to give such notice to the holder of any
21
Debenture designated for redemption in whole or in part, or any defect in the
notice, shall not affect the validity of the proceedings for the redemption of
any other Debentures. In the case of any redemption of Debentures prior to the
expiration of any restriction on such redemption provided in the terms of such
Debentures or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall state:
(i) the date fixed for redemption;
(ii) the Redemption Price;
(iii) that payment of the Redemption Price shall be made at the
office or agency of the Company or at the Corporate Trust
Office, upon presentation and surrender of such Debentures;
(iv) that if the payment date is also an Interest Payment Date,
accrued interest shall be paid to the holders of record on the
record date for the payment of interest;
(v) that from and after said date of redemption interest on any
amounts so redeemed shall cease to accrue.
If less than all the Debentures are to be redeemed, the notice to the holders of
the Debentures shall specify the particular Debentures to be redeemed. If the
Debentures are to be redeemed in part only, the notice shall state the portion
of the principal amount thereof to be redeemed and shall state that on and after
the redemption date, upon surrender of such Debenture, a new Debenture or
Debentures in principal amount equal to the unredeemed portion thereof shall be
issued.
(b) Except in the case of a redemption pursuant to Section 3.3(b), if
less than all the Debentures are to be redeemed, the Company shall give the
Trustee at least forty-five (45) days' written notice in advance of the date
fixed for redemption as to the aggregate principal amount of Debentures to be
redeemed, and thereupon the Trustee shall select, pro rata or by lot or in such
other manner as it shall deem appropriate and fair, the portion or portions
(equal to $25 or any integral multiple thereof) of the Debentures to be redeemed
and shall thereafter promptly notify the Company in writing of the numbers of
the Debentures to be redeemed, in whole or in part. The Company may, if and
whenever it shall so elect pursuant to the terms hereof, by delivery of
instructions signed on its behalf by its chairman, president, chief executive
officer or any senior or executive vice president, instruct the Trustee or any
Paying Agent to call all or any part of the Debentures for redemption and to
give notice of redemption in the manner set forth in this Section 3.4, such
notice to be in the name of the Company or its own name as the Trustee or such
Paying Agent may deem advisable. In any case in which notice of redemption is to
be given by the Trustee or any such Paying Agent, the Company shall deliver or
cause to be delivered to, or permit to remain with, the Trustee or such Paying
Agent, as the case may be, such Debenture Register, transfer books or other
records, or suitable copies or extracts therefrom, sufficient to enable the
Trustee or such Paying Agent to give any notice by mail that may be required
under the provisions of this Section 3.4.
22
Section 3.5. Payment upon Redemption.
(a) If the giving of notice of redemption shall have been completed as
above provided, the Debentures or portions of Debentures to be redeemed
specified in such notice shall become due and payable on the date and at the
place stated in such notice at the applicable Redemption Price, and interest on
such Debentures or portions of Debentures shall cease to accrue on and after the
date fixed for redemption, unless the Company shall default in the payment of
such Redemption Price with respect to any such Debenture or portion thereof. On
presentation and surrender of such Debentures on or after the date fixed for
redemption at the place of payment specified in the notice, said Debentures
shall be paid and redeemed at the Redemption Price (but if the date fixed for
redemption is an Interest Payment Date, the interest installment payable on such
date shall be payable to the registered holder at the close of business on the
applicable record date pursuant to Section 3.3).
(b) Upon presentation of any Debenture that is to be redeemed in part
only, the Company shall execute and the Trustee shall authenticate and the
office or agency where the Debenture is presented shall deliver to the holder
thereof, at the expense of the Company, a new Debenture of authorized
denomination in principal amount equal to the unredeemed portion of the
Debenture so presented.
Section 3.6. No Sinking Fund. The Debentures are not entitled to the
benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
Section 4.1. Extension of Interest Payment Period.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time and from time to time during the term
of the Debentures, to defer payments of interest by extending the interest
payment period of such Debentures for a period not exceeding twenty (20)
consecutive quarters (the "Extension Period"), during which Extension Period no
interest shall be due and payable; provided that no Extension Period may extend
beyond the Maturity Date or end on a date other than an Interest Payment Date.
To the extent permitted by applicable law, interest, the payment of which has
been deferred because of the extension of the interest payment period pursuant
to this Section 4.1, shall bear interest thereon at the Coupon Rate compounded
quarterly for each quarter of the Extension Period ("Compounded Interest"). At
the end of the Extension Period, the Company shall promptly calculate (and
deliver such calculation to the Trustee) and pay all interest accrued and unpaid
on the Debentures, including any Additional Payments and Compounded Interest
(together, "Deferred Payments") that shall be payable to the holders of the
Debentures in whose names the Debentures are registered in the Debenture
Register on the record date immediately preceding the end of the Extension
Period. Before the termination of any Extension Period, the Company may further
23
extend such period so long as no Event of Default has occurred and is
continuing, provided that such period together with all such further extensions
thereof shall not exceed twenty (20) consecutive quarters, or extend beyond the
Maturity Date of the Debentures or end on a date other than an Interest Payment
Date. Upon the termination of any Extension Period and upon the payment of all
Deferred Payments then due, the Company may commence a new Extension Period,
subject to the foregoing requirements. No interest shall be due and payable
during an Extension Period, except at the end thereof, but the Company may
prepay at any time all or any portion of the interest accrued during an
Extension Period.
Section 4.2. Notice of Extension.
(a) If the Property Trustee is the only registered holder of the
Debentures at the time the Company selects an Extension Period, the Company
shall give written notice to the Administrative Trustees, the Property Trustee
and the Trustee of its selection of such Extension Period at least two Business
Days before the earlier of (i) the next succeeding date on which Distributions
on the Trust Securities issued by the Trust are payable; or (ii) the date the
Trust is required to give notice of the record date, or the date such
Distributions are payable, to the Nasdaq National Market or other applicable
exchange or self-regulatory organization or to holders of the Preferred
Securities issued by the Trust, but in any event at least one Business Day
before such record date.
(b) If the Property Trustee is not the only holder of the Debentures at
the time the Company selects an Extension Period, the Company shall give the
holders of the Debentures and the Trustee written notice of its selection of
such Extension Period at least two Business Days before the earlier of (i) the
next succeeding Interest Payment Date; or (ii) the date the Company is required
to give notice of the record or payment date of such interest payment to the
Nasdaq National Market or other applicable exchange or self-regulatory
organization or to holders of the Debentures but in any event at least one
Business Day before such record date..
(c) The quarter in which any notice is given pursuant to paragraphs (a)
or (b) of this Section 4.2 shall be counted as one of the twenty (20) quarters
permitted in the maximum Extension Period permitted under Section 4.1.
Section 4.3. Limitation on Transactions.
If (a) the Company shall exercise its right to defer payment of
interest as provided in Section 4.1; or (b) there shall have occurred and be
continuing any Event of Default, then (i) neither the Company nor any of its
Subsidiaries shall declare or pay any dividend on, make any distributions with
respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock (other than (A) dividends or distributions
in common stock of the Company, or any declaration of a non-cash dividend in
connection with the implementation of a shareholder rights plan, or the issuance
of stock under any such plan in the future, or the redemption or repurchase of
any such rights pursuant thereto, (B) purchases of common stock of the Company
related to the rights under any of the Company's benefit plans for its
directors,
24
officers or employees, (C) as a result of a reclassification of its capital
stock for another class of its capital stock, (D) dividends or distributions
made by a Subsidiary to the Company or (E) dividends or distributions made by a
Subsidiary to a Subsidiary); (ii) neither the Company nor any Subsidiary shall
make any payment of interest, principal or premium, if any, or repay, repurchase
or redeem any debt securities issued by the Company or any Subsidiary which rank
pari passu with or junior to the Debentures or make any guarantee payments with
respect to any guarantee by the Company of any debt securities if such guarantee
ranks pari passu with or junior in interest to the Debentures; provided,
however, that notwithstanding the foregoing the Company may make payments
pursuant to its obligations under the Guarantee; and (iii) the Company shall not
redeem, purchase or acquire less than all of the Outstanding Debentures or any
of the Preferred Securities.
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
Section 5.1. Payment of Principal and Interest.
The Company shall duly and punctually pay or cause to be paid the
principal of and interest on the Debentures at the time and place and in the
manner provided herein. Each such payment of the principal of and interest on
the Debentures shall relate only to the Debentures, shall not be combined with
any other payment of the principal of or interest on any other obligation of the
Company, and shall be clearly and unmistakably identified as pertaining to the
Debentures.
Section 5.2. Maintenance of Agency.
So long as any of the Debentures remain Outstanding, the Company shall
maintain, or shall cause to be maintained, an office or agency in the City of
Wilmington, Delaware and at such other location or locations as may be
designated as provided in this Section 5.2, where (a) Debentures may be
presented for payment; (b) Debentures may be presented as hereinabove authorized
for registration of transfer and exchange; and (c) notices and demands to or
upon the Company in respect of the Debentures and this Indenture may be given or
served, any such designation to continue with respect to such office or agency
until the Company shall, by written notice signed by its chairman, president,
chief executive officer or any senior or executive vice president and delivered
to the Trustee, designate some other office or agency for such purposes or any
of them. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, notices and demands. In addition to any
such office or agency, the Company may from time to time designate one or more
offices or agencies outside of the City of Wilmington, Delaware where the
Debentures may be presented for registration or transfer and for exchange in the
manner provided herein, and the Company may from time to time rescind such
designation as the Company may
25
deem desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
any such office or agency in the City of Wilmington, Delaware, for the purposes
above mentioned. The Company shall give the Trustee prompt written notice of any
such designation or rescission thereof.
Section 5.3. Paying Agents.
(a) The Trustee shall be the initial Paying Agent. If the Company shall
appoint one or more Paying Agents for the Debentures, other than the Trustee,
the Company shall cause each such Paying Agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section 5.3:
(i) that it shall hold all sums held by it as such agent for
the payment of the principal of or interest on the Debentures (whether such sums
have been paid to it by the Company or by any other obligor of such Debentures)
in trust for the benefit of the Persons entitled thereto;
(ii) that it shall give the Trustee written notice of any
failure by the Company (or by any other obligor of such Debentures) to make any
payment of the principal of or interest on the Debentures when the same shall be
due and payable;
(iii) that it shall, at any time during the continuance of any
failure referred to in the preceding paragraph (a)(ii) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust
by such Paying Agent; and
(iv) that it shall perform all other duties of Paying Agent as
set forth in this Indenture.
(b) If the Company shall act as its own Paying Agent with respect to
the Debentures, it shall on or before each due date of the principal of or
interest on such Debentures, set aside, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay such principal
or interest so becoming due on Debentures until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and shall promptly notify
the Trustee of such action, or any failure (by it or any other obligor on such
Debentures) to take such action. Whenever the Company shall have one or more
Paying Agents for the Debentures, it shall, prior to each due date of the
principal of or interest on any Debentures, deposit with the Paying Agent a sum
sufficient to pay the principal or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal or interest,
and (unless such Paying Agent is the Trustee) the Company shall promptly notify
the Trustee in writing of this action or failure so to act.
(c) Notwithstanding anything in this Section 5.3 to the contrary, (i)
the agreement to hold sums in trust as provided in this Section 5.3 is subject
to the provisions of Section 13.3 and 13.4; and (ii) the Company may at any
time, for the purpose of obtaining the satisfaction and discharge
26
of this Indenture as set forth in Article XIII or for any other purpose, pay, or
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
terms and conditions as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Section 5.4. Appointment to Fill Vacancy in Office of the Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, shall appoint, in the manner provided in Section 9.11, a
Trustee, so that there shall at all times be a Trustee hereunder.
Section 5.5. Compliance with Consolidation Provisions.
The Company shall not, while any of the Debentures remain Outstanding,
consolidate with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other company unless the provisions of
Article XII hereof are complied with.
Section 5.6. Limitation on Transactions.
Without limiting the generality of Section 4.3, if Debentures are
issued to the Trust or a trustee of the Trust in connection with the issuance of
Trust Securities by the Trust and the Company shall be in default with respect
to its payment of any obligations under the Guarantee relating to the Trust then
(i) neither the Company nor any of its Subsidiaries shall declare or pay any
dividend on, make any distributions with respect to, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital stock
(other than (A) dividends or distributions in common stock of the Company, or
any declaration of a non-cash dividend in connection with the implementation of
a shareholder rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto, (B)
purchases of common stock of the Company related to the rights under any of the
Company's benefit plans for its directors, officers or employees, (C) as a
result of a reclassification of its capital stock, or (D) dividends or
distributions made by a Subsidiary to the Company or (E) dividends or
distributions made by a Subsidiary to a Subsidiary; (ii) neither the Company nor
any Subsidiary shall make any payment of principal, interest or premium, if any,
or repay, repurchase or redeem any debt securities issued by the Company or any
Subsidiary which rank pari passu with or junior in interest to the Debentures or
make any guarantee payments with respect to any guarantee by the Company of any
debt securities if such guarantee ranks pari passu with or junior in interest to
the Debentures; provided, however, that the Company may make payments pursuant
to its obligations under the Guarantee; and (iii) the Company shall not redeem,
purchase or acquire less than all of the Outstanding Debentures or any of the
Preferred Securities.
27
Section 5.7. Covenants as to the Trust.
For so long as the Trust Securities of the Trust remain outstanding,
the Company (a) shall maintain 100% direct or indirect ownership of the Common
Securities of the Trust; (b) shall not voluntarily terminate, wind up or
liquidate the Trust, except upon receipt of all required regulatory approvals;
(c) shall use its reasonable efforts to cause the Trust (i) to remain a business
trust (and to avoid involuntary termination, winding up or liquidation), except
in connection with a distribution of Debentures, the redemption of all of the
Trust Securities of the Trust or certain mergers, consolidations or
amalgamations, each as permitted by the Trust Agreement; and (ii) to otherwise
continue not to be treated as an association taxable as a corporation or
partnership for United States federal income tax purposes; (d) shall use its
reasonable efforts to cause each holder of Trust Securities to be treated as
owning an indirect beneficial interest in the Debentures; (e) shall use best
efforts to maintain the eligibility of the Preferred Securities for listing,
quotation or inclusion on or in any national securities exchange or other
self-regulatory organization on or in which the Preferred Securities are then
listed, quoted or included (including, if applicable, the Nasdaq National
Market) and shall use reasonable efforts to keep the Preferred Securities so
listed, quoted or included for so long as the Preferred Securities remain
outstanding; and (f) shall use best efforts to cause the Trust not to issue or
incur, directly or indirectly, additional Trust Securities. In connection with
the distribution of the Debentures to the holders of the Preferred Securities
issued by the Trust upon a Dissolution Event, the Company shall use its best
efforts to include such Debentures in the Nasdaq National Market or such other
exchange or to include such Debentures in such self-regulatory organization as
the Preferred Securities are then listed, quoted or included.
Section 5.8. Covenants as to Purchases.
Except upon the exercise by the Company of its right to redeem the
Debentures pursuant to Section 3.2 upon the occurrence and continuation of a
Special Event or pursuant to 3.3(b) in exchange for the Trust Securities, the
Company shall not purchase any Debentures, in whole or in part, from the Trust
prior to September 30, 2007.
Section 5.9. Waiver of Usury, Stay or Extension Laws.
The Company shall not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performances of this Indenture, and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the extension of every such power as though no such law had been
enacted.
Section 5.10. No Intent to Commence Extension Period.
The Company has no present intention to exercise its right under
Section 4.1 to defer payments of interest on the Debentures by selecting an
Extension Period. The Company believes
28
that the likelihood that it would exercise its right under Section 4.1 to defer
payments of interest on the Debentures by selecting an Extension Period at any
time during which the Debentures are outstanding is remote because of the
restrictions that would be imposed on the Company pursuant to Sections 4.3 and
5.6 of this Indenture.
ARTICLE VI
THE DEBENTURE HOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 6.1. The Company to Furnish the Trustee Names and Addresses of
the Debenture Holders.
The Company shall furnish or cause to be furnished to the Trustee (a)
on a quarterly basis on each regular record date (as described in Section 2.5) a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the holders of the Debentures as of such regular record date,
provided that the Company shall not be obligated to furnish or cause to be
furnished such list at any time that the list shall not differ in any respect
from the most recent list furnished to the Trustee by the Company (in the event
the Company fails to provide such list on a quarterly basis, the Trustee shall
be entitled to rely on the most recent list provided by the Company); and (b) at
such other times as the Trustee may request in writing within thirty (30) days
after the receipt by the Company of any such request, a list in similar form and
content as of a date not more than fifteen (15) days prior to the time such list
is furnished; provided, however, that, in either case, no such list need be
furnished if the Trustee shall be the Debenture Registrar.
Section 6.2. Preservation of Information Communications with the
Debenture Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders of
Debentures contained in the most recent list furnished to it as provided in
Section 6.1 and as to the names and addresses of holders of Debentures received
by the Trustee in its capacity as Debenture Registrar for the Debentures (if
acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided in
Section 6.1 upon receipt of a new list so furnished.
(c) Debenture holders may communicate as provided in Section 312(b) of
the Trust Indenture Act with other Debenture holders with respect to their
rights under this Indenture or under the Debentures.
29
Section 6.3. Reports by the Company.
(a) The Company covenants and agrees to file with the Trustee, within
fifteen (15) days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) that the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such sections, then to
file with the Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports that may be
required pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit by mail, first class
postage prepaid, or reputable overnight delivery service that provides for
evidence of receipt, to the Debenture holders, as their names and addresses
appear upon the Debenture Register, within thirty (30) days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to subsections (a) and (b)
of this Section 6.3 as may be required by rules and regulations prescribed from
time to time by the Commission.
Section 6.4. Reports by the Trustee.
(a) On or before April 30 in each year in which any of the Debentures
are Outstanding, the Trustee shall transmit by mail, first class postage
prepaid, to the Debenture holders, as their names and addresses appear upon the
Debenture Register, a brief report dated as of the preceding March 31, if and to
the extent required under Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c) of the
Trust Indenture Act.
(c) A copy of each such report shall, at the time of such transmission
to Debenture holders, be filed by the Trustee with the Company, with the Nasdaq
National Market, or any stock exchange on which any Debentures are listed and/or
any other self-regulatory organization on or in which any Debentures are quoted
or included (if so listed, quoted or included) and also with the Commission. The
Company agrees to notify the Trustee in writing when any Debentures become
designated for inclusion in the Nasdaq National Market or listed on any other
stock exchange or other self-regulatory organization.
30
ARTICLE VII
REMEDIES OF THE TRUSTEE AND DEBENTURE HOLDERS
ON EVENT OF DEFAULT
Section 7.1. Events of Default.
(a) Whenever used herein with respect to the Debentures, "Event of
Default" means any one or more of the following events that has occurred and is
continuing:
(i) the Company defaults in the payment of any installment of
interest upon any of the Debentures, as and when the same shall become due and
payable, and continuance of such default for a period of thirty (30) days;
provided, however, that a valid extension of an interest payment period by the
Company in accordance with the terms of this Indenture shall not constitute a
default in the payment of interest for this purpose;
(ii) the Company defaults in the payment of the principal on
the Debentures as and when the same shall become due and payable whether at
maturity, upon redemption, by declaration or otherwise;
(iii) the Company fails to observe or perform any other of its
covenants or agreements with respect to the Debentures for a period of ninety
(90) days after the date on which written notice of such failure, requiring the
same to be remedied and stating that such notice is a "Notice of Default"
hereunder, shall have been given to the Company by the Trustee, by registered or
certified mail, or to the Company and the Trustee by the holders of at least
twenty-five percent (25%) in aggregate principal amount of the Debentures at the
time Outstanding;
(iv) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case; (B) consents to the entry of an
order for relief against it in an involuntary case; (C) consents to the
appointment of a Custodian of it or for all or substantially all of its
property; or (D) makes a general assignment for the benefit of its creditors;
(v) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (A) is for relief against the Company in an
involuntary case; (B) appoints a Custodian of the Company for all or
substantially all of its property; or (C) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for ninety (90) days; or
(vi) the Trust shall have voluntarily or involuntarily
dissolved, wound-up its business or otherwise terminated its existence except in
connection with (A) the distribution of Debentures to holders of Trust
Securities in liquidation of their interests in the Trust; (B) the redemption of
all of the outstanding Trust Securities of the Trust; or (C) certain mergers,
consolidations or amalgamations, each as permitted by the Trust Agreement.
31
(b) In each and every such case referred to in items (i) through (iv)
of Section 7.1(a), unless the principal of all the Debentures shall have already
become due and payable, either the Trustee or the holders of not less than
twenty-five percent (25%) in aggregate principal amount of the Debentures then
Outstanding hereunder, by notice in writing to the Company (and to the Trustee
if given by such Debenture holders) may declare the principal of all the
Debentures, together with all interest accrued thereon, to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, notwithstanding anything contained in this
Indenture or in the Debentures to the contrary. In each and every such case
referred to in items (v) and (vi) all of the principal of the Debentures,
together with all interest accrued thereon, shall automatically become due and
payable immediately, without notice or demand, notwithstanding anything
contained in this Indenture or in the Debentures to the contrary.
(c) At any time after the principal of the Debentures shall have been
so declared due and payable as set forth in the first sentence of the preceding
paragraph (a), and before any judgment or decree for the payment of the moneys
due shall have been obtained or entered as hereinafter provided, the holders of
at least a majority in aggregate principal amount of the Debentures then
Outstanding hereunder, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if: (i) the Company has
paid or deposited with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Debentures and the principal of any and
all Debentures that shall have become due otherwise than by acceleration (with
interest upon such principal, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of interest, at the
rate per annum expressed in the Debentures to the date of such payment or
deposit) and the amount payable to the Trustee under Section 9.7; and (ii) any
and all Events of Default under this Indenture, other than the nonpayment of
principal on Debentures that shall not have become due by their terms, shall
have been remedied or waived as provided in Section 7.6. No such rescission and
annulment shall extend to or shall affect any subsequent default or impair any
right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right with
respect to Debentures under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the Trustee, then and in
every such case the Company and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Company and the Trustee shall continue as though no such proceedings had
been taken.
Section 7.2. Collection of Indebtedness and Suits for Enforcement by
the Trustee.
(a) The Company covenants that (i) in case it shall default in the
payment of any installment of interest on any of the Debentures, and such
default shall have continued for a period of thirty (30) days (other than by
reason of a valid extension of an interest payment period by the Company in
accordance with the terms of this Indenture); or (ii) in case it shall default
in the payment of the principal of any of the Debentures when the same shall
have become due and
32
payable, whether upon maturity of the Debentures or upon redemption or upon
declaration or otherwise, then, upon demand of the Trustee, the Company shall
pay to the Trustee, for the benefit of the holders of the Debentures, the whole
amount that then shall have been become due and payable on all such Debentures
for principal or interest, or both, as the case may be, with interest upon the
overdue principal; and (to the extent that payment of such interest is
enforceable under applicable law and, if the Debentures are held by the Trust or
a trustee of the Trust, without duplication of any other amounts paid by the
Trust or trustee in respect thereof) upon overdue installments of interest at
the rate per annum expressed in the Debentures; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, and the amount payable to the Trustee under Section 9.7.
(b) If the Company shall fail to pay such amounts set forth in Section
7.2(a) forthwith upon such demand, the Trustee, in its own name and as trustee
of an express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company or
other obligor upon the Debentures and collect the moneys adjudged or decreed to
be payable in the manner provided by law out of the property of the Company or
other obligor upon the Debentures, wherever situated.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial proceedings
affecting the Company, the Trust, or the creditors or property of either, the
Trustee shall have power to intervene in such proceedings and take any action
therein that may be permitted by the court and shall (except as may be otherwise
provided by law) be entitled to file such proofs of claim and other papers and
documents as may be necessary or advisable in order to have the claims of the
Trustee and of the holders of the Debentures allowed for the entire amount due
and payable by the Company under this Indenture at the date of institution of
such proceedings and for any additional amount that may become due and payable
by the Company after such date, and to collect and receive any moneys or other
property payable or deliverable on any such claim, and to distribute the same
after the deduction of the amount payable to the Trustee under Section 9.7; and
any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of the Debentures to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the making of such
payments directly to such Debenture holders, to pay to the Trustee any amount
due it under Section 9.7.
(d) All rights of action and of asserting claims under this Indenture,
or under any of the terms established with respect to the Debentures, may be
enforced by the Trustee without the possession of any of such Debentures, or the
production thereof at any trial or other proceeding relative thereto, and any
such suit or proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for payment to the Trustee of any amounts due under Section 9.7, be
for the ratable benefit of the holders of the Debentures. In case of an Event of
Default hereunder which is continuing, the Trustee may in its discretion proceed
to protect and enforce the rights vested in it by this
33
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law. Nothing
contained herein shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Debenture holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debentures
or the rights of any holder thereof or to authorize the Trustee to vote in
respect of the claim of any Debenture holder in any such proceeding.
Section 7.3. Application of Moneys Collected.
Any moneys or other assets collected by the Trustee pursuant to this
Article VII with respect to the Debentures shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys or other assets on account of principal or interest,
upon presentation of the Debentures, and notation thereon of the payment, if
only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 9.7;
SECOND: To the payment of all Senior Indebtedness if and to the extent
required by Article XVI; and
THIRD: To the payment of the amounts then due and unpaid upon the
Debentures for principal and interest, in respect of which or for the benefit of
which such money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Debentures for
principal and interest, respectively.
Section 7.4. Limitation on Suits.
(a) Except as set forth in this Indenture, no holder of any Debenture
shall have any right by virtue or by availing of any provision of this Indenture
to institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless (i) such holder previously shall have
given to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Debentures specifying such Event of
Default, as hereinbefore provided; (ii) the holders of not less than twenty-five
(25%) in aggregate principal amount of the Debentures then Outstanding shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as trustee hereunder; (iii) such holder or holders
shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby;
and (iv) the Trustee for sixty (60) days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such action,
suit or proceeding and during such sixty (60) day period, the holders of at
least a
34
majority in principal amount of the Debentures do not give the Trustee a
direction inconsistent with the request.
(b) Notwithstanding anything contained herein to the contrary or any
other provisions of this Indenture, the right of any holder of the Debentures to
receive payment of the principal of and interest on the Debentures, as therein
provided, on or after the respective due dates expressed in such Debenture (or
in the case of redemption, on the redemption date), or to institute suit for the
enforcement of any such payment on or after such respective dates or redemption
date, shall not be impaired or affected without the consent of such holder and
by accepting a Debenture hereunder it is expressly understood, intended and
covenanted by the taker and holder of every Debenture with every other such
taker and holder and the Trustee that no one or more holders of the Debentures
shall have any right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of the
holders of any other of such Debentures, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of the Debentures. For the protection and
enforcement of the provisions of this Section 7.4, each and every Debenture
holder and the Trustee shall be entitled to such relief as can be given either
at law or in equity.
Section 7.5. Rights and Remedies Cumulative; Delay or Omission not
Waiver.
(a) Except as otherwise provided in Section 2.9(b), all powers and
remedies given by this Article VII to the Trustee or to the Debenture holders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of
any other powers and remedies available to the Trustee or the holders of the
Debentures, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or
otherwise established with respect to such Debentures.
(b) No delay or omission of the Trustee or of any holder of any of the
Debentures to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or
shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 7.4, every power and remedy
given by this Article VII or by law to the Trustee or the Debenture holders may
be exercised from time to time, and as often as shall be deemed expedient, by
the Trustee or by the Debenture holders.
Section 7.6. Control by the Debenture Holders.
The holders of at least a majority in aggregate principal amount of the
Debentures at the time Outstanding, determined in accordance with Section 10.4,
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee; provided, however, that such direction shall not
be in conflict with any rule of law or with this Indenture. Subject to the
provisions of Section 9.1, the Trustee shall have the right to decline to follow
any such direction if the Trustee
35
in good faith shall determine that the action so directed would be unjustly
prejudicial to the holders not taking part in such direction or if the Trustee,
being advised by counsel, determines that the action or proceeding so directed
may not lawfully be taken, or if a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed would involve the Trustee in
personal liability. The holders of at least a majority in aggregate principal
amount of the Debentures at the time Outstanding affected thereby, or, with
respect to Debentures held by the Trust or a trustee of the Trust, the holders
of at least a majority in liquidation preference of the Preferred Securities of
the Trust at the time Outstanding affected thereby, in each case determined in
accordance with Section 10.4, may on behalf of the holders of all of the
Debentures or of all of the Preferred Securities waive any past default in the
performance of any of the covenants contained herein and its consequences or any
past Default or Event of Default, except (i) a default in the payment of the
principal of or interest on any of the Debentures as and when the same shall
become due by the terms of such Debentures otherwise than by acceleration
(unless such default has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by acceleration has
been deposited with the Trustee (in accordance with Section 7.1(c)); (ii) a
default in the covenants contained in Section 5.7; or (iii) in respect of a
covenant or provision hereof which cannot be modified or amended without the
consent of the holder of each Outstanding Debenture affected; provided, however,
that if the Debentures are held by the Trust or a trustee of the Trust, such
waiver or modification to such waiver shall not be effective until the holders
of a majority in liquidation preference of Trust Securities of the Trust shall
have consented to such waiver or modification to such waiver; provided further,
that if the Debentures are held by the Trust or a trustee of the Trust, and if
the consent of the holder of each Outstanding Debenture is required, such waiver
shall not be effective, with respect to Debentures held by the Trust or a
trustee of the Trust, until each holder of the Trust Securities of the Trust
shall have consented to such waiver. Upon any such waiver, the default covered
thereby shall be deemed to be cured for all purposes of this Indenture and the
Company, the Trustee and the holders of the Debentures shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon.
Section 7.7. Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Debentures
by such holder's acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as the Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 7.7 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Debenture holder, or group of the
Debenture holders holding more than ten percent (10%) in aggregate principal
amount of the Outstanding Debentures, or to any suit instituted by any Debenture
holder for the enforcement of the payment of the principal of or
36
interest on the Debentures, on or after the respective due dates expressed in
such Debenture or established pursuant to this Indenture.
Section 7.8. Direct Action; Right of Set-Off.
In the event that an Event of Default has occurred and is continuing
and such event is attributable to the failure of the Company to pay interest on
or principal of the Debentures on an Interest Payment Date, the Maturity Date or
any date designated for the redemption of any Debentures, as applicable, then a
holder of Preferred Securities may institute and prosecute a legal proceeding
directly against the Company for enforcement of payment to such holder of the
principal of or interest on such Debentures having a principal amount equal to
the aggregate Liquidation Amount of the Preferred Securities of such holders (a
"Direct Action"). In connection with such Direct Action, the Company will have a
right of set-off under this Indenture to the extent of any payment actually made
by the Company to such holder of the Preferred Securities with respect to such
Direct Action.
ARTICLE VIII
FORM OF THE DEBENTURE AND ORIGINAL ISSUE
Section 8.1. Form of Debenture.
The Debenture and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the forms contained as Exhibit A to
this Indenture, attached hereto and incorporated herein by reference.
Section 8.2. Original Issue of the Debentures. Debentures in the
aggregate principal amount of $56,701,025 may, upon execution of this Indenture,
be executed by the Company and delivered to the Trustee for authentication. If
the Underwriters exercise their Option and there is an Option Closing Date (as
such terms are defined in the Underwriting Agreement, dated August ___, 2002, by
and among the Company, the Trust, Xxxxxx Xxxxxxxxxx Xxxxx LLC and Advest, Inc.),
then, on such Option Closing Date, Debentures in the additional aggregate amount
of up to $8,505,150 may be executed by the Company and delivered to the Trustee
for authentication. The Trustee shall thereupon authenticate and deliver said
Debentures to or upon the written order of the Company, signed by its chairman,
president, chief executive officer or any senior or executive vice president and
its treasurer or an assistant treasurer, without any further action by the
Company.
ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.1. Certain Duties and Responsibilities of the Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing of all Events of Default that may have occurred, shall
37
undertake to perform with respect to the Debentures such duties and only such
duties as are specifically set forth in this Indenture, and no implied covenants
shall be read into this Indenture against the Trustee. In case an Event of
Default has occurred that has not been cured or waived, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and may
exercise rights and powers reasonably incidental thereto, and use the same
degree of care and skill in its exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
(b) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Trustee shall with
respect to the Debentures be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable with respect to the Debentures
except for the performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(B) in the absence of bad faith on the part of the
Trustee, the Trustee may with respect to the Debentures conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any such
certificates or opinions that by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be conclusively determined by a court of competent
jurisdiction that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal amount of the
Debentures at the time Outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
38
exercising any trust or power conferred upon the Trustee under this Indenture
with respect to the Debentures; and
(iv) none of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there is reasonable ground for believing that
the repayment of such funds or liability is not reasonably assured to it under
the terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
Section 9.2. Notice of Defaults.
Within ninety (90) days after actual knowledge by a Responsible Officer
of the Trustee of the occurrence of any Default hereunder with respect to the
Debentures, the Trustee shall transmit by mail to all holders of the Debentures,
as their names and addresses appear in the Debenture Register, notice of such
Default, unless such Default shall have been cured or waived; provided, however,
that, except in the case of a default in the payment of the principal or
interest (including any Additional Payments) on any Debenture, the Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of the directors and/or
Responsible Officers of the Trustee determines in good faith that the
withholding of such notice is in the interests of the holders of such
Debentures; and provided, further, that in the case of any Default of the
character specified in section 7.1(a)(iii), no such notice to holders of
Debentures need be sent until at least thirty (30) days after the occurrence
thereof.
Section 9.3. Certain Rights of the Trustee. Except as otherwise
provided in Section 9.1:
(a) The Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
security or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Board Resolution or an instrument
signed in the name of the Company by its chairman, president and chief executive
officer or any senior or executive vice president and by the secretary or an
assistant secretary or the treasurer or an assistant treasurer thereof (unless
other evidence in respect thereof is specifically prescribed herein);
(c) The Trustee shall not be deemed to have knowledge of a Default or
an Event of Default, other than an Event of Default specified in Section
7.1(a)(i) or (ii), unless and until it receives written notification of such
Default or Event of Default from the Company or from any holder of the
Debentures at the time Outstanding;
(d) The Trustee may consult with counsel and the advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken
39
or suffered or omitted hereunder in good faith and in reliance thereon;
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Debenture holders, pursuant to the provisions of this
Indenture, unless such Debenture holders shall have offered to the Trustee
reasonable security or indemnity satisfactory to it against the costs, expenses
and liabilities that may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default (that is continuing and has not been cured or
waived) to exercise with respect to the Debentures such of the rights and powers
vested in it by this Indenture, and to use the same degree of care and skill in
its exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs;
(f) The Trustee shall not be liable for any action taken or omitted to
be taken by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(g) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security, or
other papers or documents, unless requested in writing so to do by the holders
of not less than a majority in aggregate principal amount of the Outstanding
Debentures (determined as provided in Section 10.4); provided, however, that if
the payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity satisfactory to it against such costs, expenses or
liabilities as a condition to so proceeding, and the reasonable expense of every
such examination shall be paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand; and
(h) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents, attorneys,
custodians or nominees and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent, attorney, custodian or
nominee appointed with due care by it hereunder.
Section 9.4. Not Responsible for Recitals, Etc.
(a) The Recitals contained herein and in the Debentures shall be taken
as the statements of the Company, and the Trustee assumes no responsibility for
the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or application by
the Company of any of the Debentures or of the proceeds of such Debentures, or
for the use or application of any
40
moneys paid over by the Trustee in accordance with any provision of this
Indenture, or for the use or application of any moneys received by any Paying
Agent other than the Trustee.
Section 9.5. May Hold the Debentures.
The Trustee or any Paying Agent or Debenture Registrar for the
Debentures, in its individual or any other capacity, may become the owner or
pledgee of the Debentures with the same rights it would have if it were not
Trustee, Paying Agent or Debenture Registrar.
Section 9.6. Moneys Held in Trust.
Subject to the provisions of Section 13.5, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder except such as it
may agree in writing with the Company to pay thereon.
Section 9.7. Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to the Trustee, and the
Trustee shall be entitled to, such reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust), as the Company and the Trustee may from time to time agree in
writing, for all services rendered by it in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee, and, except as otherwise expressly provided herein,
the Company shall pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from its negligence or bad faith. The Company also
covenants to indemnify the Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any loss, liability or expense
(including fees and expenses of counsel) incurred without negligence or bad
faith on the part of the Trustee and arising out of or in connection with the
acceptance or administration of this Indenture, including the costs and expenses
of defending itself against any claim of liability in the premises. The
provisions of this Section 9.7(a) shall survive the termination of this
Indenture or the earlier resignation or removal of the Trustee.
(b) The obligations of the Company under this Section 9.7 to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Debentures upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular
Debentures.
41
Section 9.8. Reliance on Officers' Certificate.
Except as otherwise provided in Section 9.1, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting to take any action hereunder, such matter (unless other
evidence in respect thereof is herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Trustee and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted to be taken by it under the provisions of this Indenture
upon the faith thereof.
Section 9.9. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any "conflicting interest" within
the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
Section 9.10. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the Debentures
issued hereunder which shall at all times be a corporation organized and doing
business under the laws of the United States or any state or territory thereof
or of the District of Columbia, or a corporation or other Person permitted to
act as trustee by the Commission, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least $5
million, and subject to supervision or examination by federal, state,
territorial, or District of Columbia authority. If such Person publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 9.10, the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. The Company may not, nor may any Person directly or
indirectly controlling, controlled by, or under common control with the Company,
serve as Trustee. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 9.10, the Trustee shall resign
immediately in the manner and with the effect specified in Section 9.11.
Section 9.11. Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter appointed, may at any time
resign by giving written notice thereof to the Company and by transmitting
notice of resignation by mail, first class postage prepaid, to the Debenture
holders, as their names and addresses appear upon the Debenture Register. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor trustee with respect to Debentures by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have
accepted appointment within thirty (30) days after the mailing of
42
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee with respect
to Debentures, or any Debenture holder who has been a bona fide holder of a
Debenture or Debentures for at least six (6) months may, subject to the
provisions of Sections 9.9 and 9.10, on behalf of himself or herself and all
others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as it may
deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 9.9 after written request therefor by the Company or by any Debenture
holder who has been a bona fide holder of a Debenture or Debentures for at least
six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 9.10 and shall fail to resign after written request
therefor by the Company or by any such Debenture holder; or
(iii) the Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall be appointed
or consented to, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, the Company may remove the Trustee with respect to all
Debentures and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor trustee,
or, subject to the provisions of Section 9.10, unless the Trustee's duty to
resign is stayed as provided herein, any Debenture holder who has been a bona
fide holder of a Debenture or Debentures for at least six months may, on behalf
of that holder and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as it may
deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of at least a majority in aggregate principal amount of
the Debentures at the time Outstanding may at any time remove the Trustee by so
notifying the Trustee and the Company in writing and may appoint a successor
Trustee with the consent of the Company.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Debentures pursuant to any of the
provisions of this Section 9.11 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 9.12.
43
(e) Any successor trustee appointed pursuant to this Section 9.11 may
be appointed with respect to the Debentures, and at any time there shall be only
one Trustee with respect to the Debentures.
Section 9.12. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor trustee with
respect to the Debentures, every successor trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
trustee all the rights, powers, and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor trustee all property and
money held by such retiring Trustee hereunder.
(b) Upon request of any successor trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor trustee all such rights, powers and trusts referred to in
paragraph (a) of this Section 9.12.
(c) No successor trustee shall accept its appointment unless at the
time of such acceptance such successor trustee shall be qualified and eligible
under this Article IX.
(d) Upon acceptance of appointment by a successor trustee as provided
in this Section 9.12, the Company shall transmit notice of the succession of
such trustee hereunder by mail, first class postage prepaid, to the Debenture
holders, as their names and addresses appear upon the Debenture Register. If the
Company fails to transmit such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be transmitted at the expense of the Company.
Section 9.13. Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any Person
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such Person shall be qualified
under the provisions of Section 9.9 and eligible under the provisions of Section
9.10, without the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Debentures shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Debentures so authenticated with the same effect as if such
successor Trustee had itself authenticated such Debentures.
44
Section 9.14. Preferential Collection of Claims against the Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be subject
to Section 311(a) of the Trust Indenture Act to the extent included therein.
ARTICLE X
CONCERNING THE DEBENTURE HOLDERS
Section 10.1. Evidence of Action by the Holders.
(a) Whenever in this Indenture it is provided that the holders of at
least a majority or specified percentage in aggregate principal amount of the
Debentures may take any action (including the making of any demand or request,
the giving of any notice, consent or waiver or the taking of any other action),
the fact that at the time of taking any such action the holders of such majority
or specified percentage have joined therein may be evidenced by any instrument
or any number of instruments of similar tenor executed by such holders of
Debentures in person or by agent or proxy appointed in writing.
(b) If the Company shall solicit from the Debenture holders any
request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for the determination of Debenture
holders entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other action, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given before or after
the record date, but only the Debenture holders of record at the close of
business on the record date shall be deemed to be Debenture holders for the
purposes of determining whether Debenture holders of the requisite proportion of
Outstanding Debentures have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other action, and
for that purpose the Outstanding Debentures shall be computed as of the record
date; provided, however, that no such authorization, agreement or consent by
such Debenture holders on the record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not later
than six (6) months after the record date.
Section 10.2. Proof of Execution by the Debenture Holders.
Subject to the provisions of Section 9.1, proof of the execution of any
instrument by a Debenture holder (such proof shall not require notarization) or
such Debenture holder's agent or proxy and proof of the holding by any Person of
any of the Debentures shall be sufficient if made in the following manner:
45
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Debentures shall be proved by the Debenture
Register of such Debentures or by a certificate of the Debenture Registrar
thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section 10.2 as it shall deem necessary.
Section 10.3. Who May Be Deemed Owners.
Prior to the due presentment for registration of transfer of any
Debenture, the Company, the Trustee, any Paying Agent, any Authenticating Agent
and any Debenture Registrar may deem and treat the Person in whose name such
Debenture shall be registered in the Debenture Register as the absolute owner of
such Debenture (whether or not such Debenture shall be overdue and
notwithstanding any notice of ownership or writing thereon made by anyone other
than the Debenture Registrar) for the purpose of receiving payment of or on
account of the principal of and interest on such Debenture (subject to Section
2.3) and for all other purposes; and neither the Company nor the Trustee nor any
Paying Agent nor any Authenticating Agent nor any Debenture Registrar shall be
affected by any notice to the contrary.
Section 10.4. Certain Debentures Owned by Company Disregarded.
In determining whether the holders of the requisite aggregate principal
amount of the Debentures have concurred in any direction, consent or waiver
under this Indenture, the Debentures that are owned by the Company or any other
obligor on the Debentures or by any Person directly or indirectly controlling or
controlled by or under common control with the Company or any other obligor on
the Debentures shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination, except that (a) for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver, only Debentures that a Responsible Officer of the
Trustee actually knows are so owned shall be so disregarded; and (b) for
purposes of this Section 10.4, the Trust shall be deemed not to be controlled by
the Company. The Debentures so owned that have been pledged in good faith may be
regarded as Outstanding for the purposes of this Section 10.4, if the pledgee
shall establish to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Debentures and that the pledgee is not a Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In case of a dispute as to
such right, any decision by the Trustee taken upon the advice of counsel shall
be full protection to the Trustee.
Section 10.5. Actions Binding on the Future Debenture Holders.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 10.1, of the taking of any action by the holders of the
majority or percentage in aggregate
46
principal amount of the Debentures specified in this Indenture in connection
with such action, any holder of a Debenture that is shown by the evidence to be
included in the Debentures the holders of which have consented to such action
may, by filing written notice with the Trustee, and upon proof of holding as
provided in Section 10.2, revoke such action so far as concerns such Debenture.
Except as aforesaid, any such action taken by the holder of any Debenture shall
be conclusive and binding upon such holder and upon all future holders and
owners of such Debenture, and of any Debenture issued in exchange therefor, on
registration of transfer thereof or in place thereof, irrespective of whether or
not any notation in regard thereto is made upon such Debenture. Any action taken
by the holders of the majority or percentage in aggregate principal amount of
the Debentures specified in this Indenture in connection with such action shall
be conclusively binding upon the Company, the Trustee and the holders of all the
Debentures.
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 11.1. Supplemental Indentures Without the Consent of the
Debenture Holders.
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect), without the
consent of the Debenture holders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency herein, or in the
Debentures;
(b) to comply with Article X;
(c) to provide for uncertificated Debentures in addition to or in place
of certificated Debentures;
(d) to add to the covenants of the Company for the benefit of the
holders of all or any of the Debentures or to surrender any right or power
herein conferred upon the Company;
(e) to make any change that does not adversely affect the rights of any
Debenture holder in any material respect;
(f) to provide for the issuance of and establish the form and terms and
conditions of the Debentures, to establish the form of any certifications
required to be furnished pursuant to the terms of this Indenture or of the
Debentures, or to add to the rights of the holders of the Debentures;
47
(g) to qualify or maintain the qualification of this Indenture under
the Trust Indenture Act; or
(h) to evidence a consolidation or merger involving the Company as
permitted under Section 12.1.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into any such supplemental indenture
that affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise. Any supplemental indenture authorized by the provisions of this
Section 11.1 may be executed by the Company and the Trustee without the consent
of the holders of any of the Debentures at the time Outstanding, notwithstanding
any of the provisions of Section 11.2.
Section 11.2. Supplemental Indentures with Consent of the Debenture
Holders.
With the consent (evidenced as provided in Section 10.1) of the holders
of not less than a majority in aggregate principal amount of the Debentures at
the time Outstanding, the Company, when authorized by Board Resolutions, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner not
covered by Section 11.1 the rights of the holders of the Debentures under this
Indenture; provided, however, that no such supplemental indenture shall without
the consent of the holders of each Debenture then Outstanding and affected
thereby, (a) extend the fixed maturity of any Debentures, reduce the principal
amount thereof, reduce the rate or extend the time of payment of interest
thereon, or limit the right of a holder of Preferred Securities to institute and
prosecute a Direct Action; or (b) reduce the aforesaid percentage of Debentures,
the holders of which are required to consent to any such supplemental indenture;
provided further, that if the Debentures are held by the Trust or a trustee of
the Trust, such supplemental indenture shall not be effective until the holders
of at least a majority in liquidation preference of Trust Securities of the
Trust shall have consented to such supplemental indenture; provided further,
that if the Debentures are held by the Trust or a trustee of the Trust and if
the consent of the holder of each Outstanding Debenture is required, such
supplemental indenture shall not be effective until each holder of the Trust
Securities of the Trust shall have consented to such supplemental indenture. It
shall not be necessary for the consent of the Debenture holders affected thereby
under this Section 11.2 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
Section 11.3. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the
provisions of this Article XI, this Indenture shall be and be deemed to be
modified and amended in accordance
48
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders
of Debentures shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
Section 11.4. The Debentures Affected by Supplemental Indentures.
The Debentures affected by a supplemental indenture, authenticated and
delivered after the execution of such supplemental indenture pursuant to the
provisions of this Article XI, may bear a notation in form approved by the
Company, provided such form meets the requirements of any exchange upon which
the Debentures may be listed, as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debentures so modified as to
conform, in the opinion of the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared by the Company, authenticated by the Trustee and delivered in
exchange for the Debentures then Outstanding.
Section 11.5. Execution of Supplemental Indentures.
(a) Upon the request of the Company, accompanied by its Board
Resolutions authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of the Debenture
holders required to consent thereto as aforesaid, the Trustee shall join with
the Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated, to enter into such supplemental
indenture. The Trustee, subject to the provisions of Sections 9.1, may receive
an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article XI is authorized or permitted by, and conforms
to, the terms of this Article XI and that it is proper for the Trustee under the
provisions of this Article XI to join in the execution thereof.
(b) Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 11.5, the
Trustee shall transmit by mail, first class postage prepaid, a notice, at the
expense of the Company, setting forth in general terms the substance of such
supplemental indenture, to the Debenture holders as their names and addresses
appear upon the Debenture Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
ARTICLE XII
SUCCESSOR CORPORATION
Section 12.1. The Company May Consolidate, Etc.
Nothing contained in this Indenture or in any of the Debentures shall
prevent any consolidation or merger of the Company with or into any other
49
corporation or corporations (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 sale, conveyance,
transfer or other disposition of the property of the Company or its successor or
successors as an entirety, or substantially as an entirety, to any other
corporation (whether or not affiliated with the Company or its successor or
successors) authorized to acquire and operate the same; provided, however, that
the Company hereby covenants and agrees that (a) upon any such consolidation,
merger, sale, conveyance, transfer or other disposition, the due and punctual
payment of the principal of and interest on all of the Debentures, according to
their tenor and the due and punctual performance and observance of all the
covenants and conditions of this Indenture to be kept or performed by the
Company shall be expressly assumed, by supplemental indenture (which shall
conform to the provisions of the Trust Indenture Act, as then in effect)
satisfactory in form to the Trustee executed and delivered to the Trustee by the
entity formed by such consolidation, or into which the Company shall have been
merged, or by the entity which shall have acquired such property; (b) in case
the Company consolidates with or merges into another Person or conveys or
transfers its properties and assets substantially as an entirety to any Person,
the successor Person is organized under the laws of the United States or any
state or the District of Columbia; (c) immediately after giving effect thereto,
no Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be continuing
including, without limitation, with respect to the covenants set forth in
Section 5.7 hereof.
Section 12.2. Successor Corporation Substituted.
(a) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition permitted by Section 12.1 and upon the assumption
by the successor corporation, by supplemental indenture, executed and delivered
to the Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of and interest on all of the Debentures Outstanding
and the due and punctual performance of all of the covenants and conditions of
this Indenture to be performed by the Company such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named as the Company herein, and thereupon the predecessor corporation
shall be relieved of all obligations and covenants under this Indenture and the
Debentures.
(b) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition, such changes in phraseology and form (but not in
substance) may be made in the Debentures thereafter to be issued as may be
appropriate.
(c) Nothing contained in this Indenture or in any of the Debentures
shall prevent the Company from merging into itself or acquiring by purchase or
otherwise, all or any part of, the property of any other Person (whether or not
affiliated with the Company).
50
Section 12.3. Evidence of Consolidation, Etc. to Trustee. The Trustee,
subject to the provisions of Section 9.1, may receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply with the
provisions of this Article XII.
ARTICLE XIII
SATISFACTION AND DISCHARGE
Section 13.1. Satisfaction and Discharge of Indenture.
If at any time:
(a) (i) the Company shall have delivered to the Trustee for
cancellation all Debentures theretofore authenticated (other
than any Debentures that shall have been destroyed, lost or
stolen and that shall have been replaced or paid as provided
in Section 2.9) and not theretofore cancelled; or (ii) all
Debentures theretofore authenticated (other than any
Debentures that shall have been destroyed, lost or stolen and
that shall have been replaced or paid as provided in Section
2.9) and not theretofore cancelled or delivered to the Trustee
for cancellation shall have become due and payable, or are by
their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption, and, in the case of Debentures referred to in this
clause (ii), the Company shall have deposited or caused to be
deposited with the Trustee as trust funds the entire amount in
moneys or Governmental Obligations sufficient, or a
combination thereof sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to
pay at maturity or upon redemption all Debentures theretofore
authenticated (other than any Debentures that shall have been
destroyed, lost or stolen and that shall have been replaced or
paid as provided in Section 2.9) and not theretofore delivered
to the Trustee for cancellation, including principal and
interest due or to become due on such date of maturity or date
fixed for redemption, as the case may be, and
(b) if the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company;
then this Indenture shall thereupon cease to be of further effect except for the
provisions of Sections 2.3, 2.7, 2.9, 5.1, 5.2, 5.3, 9.6, 9.9, 9.10, 9.11 and
9.12 that shall survive until the date of maturity or redemption date, as the
case may be, and Sections 9.7 and 13.5, that shall survive to such date and
thereafter, and the Trustee, on demand of the Company and at the cost and
expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture. If the Company shall not have
paid all principal and interest accrued under the Debentures on the maturity
date or redemption date, as the case may be, without
51
limiting the generality of the provisions of Article VII, the provisions of the
Indenture shall survive until the obligations under the Debentures and hereunder
are paid in full.
Section 13.2. Discharge of Obligations.
If at any time all Debentures not heretofore delivered to the Trustee
for cancellation or that have not become due and payable as described in Section
13.1 shall have been paid by the Company by depositing irrevocably with the
Trustee as trust funds moneys or an amount of Governmental Obligations
sufficient in the opinion of a nationally recognized certified public accounting
firm to pay at maturity or upon redemption all Debentures not theretofore
delivered to the Trustee for cancellation, including principal and interest due
or to become due to such date of maturity or date fixed for redemption, as the
case may be, and if the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company, then after the date such moneys or
Governmental Obligations, as the case may be, are deposited with the Trustee,
the obligations of the Company under this Indenture shall cease to be of further
effect except for the provisions of Sections 2.3, 2.7, 2.9, 5.1, 5.2, 5.3, 9.6,
9.9, 9.10, 9.11 and 9.12 that shall survive until such Debentures shall mature
and be paid and Sections 9.7 and 13.5 shall survive to such date and thereafter.
Section 13.3. Deposited Moneys to Be Held in Trust.
All monies or Governmental Obligations deposited with the Trustee
pursuant to Sections 13.1 or 13.2 shall be held in trust and shall be available
for payment as due, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent), to the holders of the Debentures for
the payment or redemption of which such moneys or Governmental Obligations have
been deposited with the Trustee.
Section 13.4. Payment of Monies Held by Paying Agents.
In connection with the satisfaction and discharge of this Indenture,
all moneys or Governmental Obligations then held by any Paying Agent under the
provisions of this Indenture shall, upon demand of the Company, be paid to the
Trustee and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys or Governmental Obligations.
Section 13.5. Repayment to the Company.
Any monies or Governmental Obligations deposited with any Paying Agent
or the Trustee, or then held by the Company in trust, for payment of principal
of or interest on the Debentures that are not applied but remain unclaimed by
the holders of such Debentures for at least two years after the date upon which
the principal of or interest on such Debentures shall have respectively become
due and payable, shall be repaid to the Company upon its written request, as the
case may be, on December 31 of each year or (if then held by the Company) shall
be discharged from such trust; and thereupon the Paying Agent and the Trustee
shall be released from all further liability with respect to such moneys or
Governmental Obligations, and the
52
holder of any of the Debentures entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to the Company for the
payment thereof.
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 14.1. No Recourse.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of the Debentures, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, past, present or future, as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such
predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no such personal
liability whatever, shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company or of
any predecessor or successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debentures or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, and any and all such rights and claims against, every
such incorporator, stockholder, officer or director as such, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debentures or implied therefrom, are hereby expressly waived and released as
a condition of, and as a consideration for, the execution of this Indenture and
the issuance of such Debentures.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1. Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Company shall bind its respective
successors and assigns, whether so expressed or not, provided, however, the
Company may not assign any of its rights or obligations hereunder except as
provided in Article XII or Section 15.12.
Section 15.2. Actions by Successor.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
53
Company shall and may be done and performed with like force and effect by the
corresponding board, committee or officer of any corporation that shall at the
time be the lawful sole successor of the Company.
Section 15.3. Surrender of the Company Powers.
The Company by instrument in writing executed by appropriate authority
of its Board of Directors and delivered to the Trustee may surrender any of the
powers reserved to the Company, and thereupon such power so surrendered shall
terminate both as to the Company, as the case may be, and as to any successor
corporation.
Section 15.4. Notices.
Except as otherwise expressly provided herein any notice or demand that
by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the holders of Debentures to or on the Company may
be given or served by U.S. mail, first class postage prepaid with return receipt
requested or by reputable overnight courier with confirmation of receipt,
addressed (until another address is filed in writing by the Company with the
Trustee), as follows: c/o National Penn Bancshares, Inc., Philadelphia and
Xxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Secretary. Any
notice, election, request or demand by the Company or any Debenture holder to or
upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or served by U.S. mail, first class postage prepaid with
return receipt requested or by reputable overnight courier with confirmation of
receipt, addressed at the Corporate Trust Office of the Trustee.
Section 15.5. Governing Law.
This Indenture and each Debenture shall be deemed to be a contract made
under the internal laws of the Commonwealth of Pennsylvania and for all purposes
shall be construed in accordance with the laws of said State without regard to
its conflict of laws principles.
Section 15.6. Treatment of the Debentures as Debt.
It is intended that the Debentures shall be treated as indebtedness and
not as equity for federal income tax purposes. The provisions of this Indenture
shall be interpreted to further this intention. The Company (with respect to its
separate books and records), the Trustee and, by acceptance of a Debenture, each
holder of a Debenture, agree to treat the Debentures as indebtedness of the
Company and not as equity for all tax (including without limitation, federal
income tax) and financial accounting purposes.
Section 15.7. Compliance Certificates and Opinions.
(a) Upon any application or demand by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the Company shall
54
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
(b) Each certificate or opinion of the Company provided for in this
Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant in this Indenture shall include (i) a statement that the
Person making such certificate or opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (iii) a statement that, in the opinion of such
Person, he or she has made such examination or investigation as, in the opinion
of such Person, is necessary to enable him or her to express an informed opinion
as to whether or not such covenant or condition has been complied with; and (iv)
a statement as to whether or not, in the opinion of such Person, such condition
or covenant has been complied with; provided, however, that each such
certificate shall comply with the provisions of Section 314 of the Trust
Indenture Act.
Section 15.8. Payments on Business Days.
In any case where the date of maturity of interest or principal of any
Debenture or the date of redemption of any Debenture shall not be a Business
Day, then payment of interest or principal may (subject to Section 2.5(b)) be
made on the next succeeding Business Day with the same force and effect as if
made on the nominal date of maturity or redemption, and no interest shall accrue
for the period after such nominal date.
Section 15.9. Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 15.10. Counterparts.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one and the same instrument.
Section 15.11. Separability.
In case any one or more of the provisions contained in this Indenture
or in the Debentures shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity,
55
illegality or unenforceability shall not affect any other provisions of this
Indenture or of the Debentures, but this Indenture and the Debentures shall be
construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.
Section 15.12. Assignment.
The Company shall have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company, provided that, in the event of any such
assignment, the Company shall remain liable for all such obligations. Subject to
the foregoing, this Indenture is binding upon and inures to the benefit of the
parties thereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties thereto.
Section 15.13. Acknowledgment of Rights; Right of Setoff.
(a) The Company acknowledges that, with respect to any Debentures held
by the Trust or a trustee of the Trust, if the Property Trustee fails to enforce
its rights under this Indenture as the holder of the Debentures held as the
assets of the Trust, a holder or holders of Preferred Securities may, consistent
with the Trust Agreement, institute legal proceedings directly against the
Company to enforce such Property Trustee's rights under this Indenture without
first instituting any legal proceedings against such Property Trustee or any
other person or entity. Notwithstanding the foregoing, and notwithstanding the
provisions of Section 7.4(a) hereof, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Company to pay
principal or interest on the Debentures on the date such principal or interest
is otherwise payable (or in the case of redemption, on the redemption date), the
Company acknowledges that a holder of Preferred Securities may directly
institute a proceeding for enforcement of payment to such holder of the
principal of or interest on the Debentures having a principal amount equal to
the aggregate liquidation amount of the Preferred Securities of such holder on
or after the respective due date specified in the Debentures.
(b) Notwithstanding anything to the contrary contained in this
Indenture, the Company shall have the right to setoff any payment it is
otherwise required to make hereunder in respect of any Trust Securities to the
extent that the Company has previously made, or is concurrently making, a
payment to the holder of such Trust Securities under the Guarantee or in
connection with a proceeding for enforcement of payment of the principal of or
interest on the Debentures directly brought by holders of any Trust Securities.
ARTICLE XVI
SUBORDINATION OF THE DEBENTURES
Section 16.1. Agreement to Subordinate.
The Company covenants and agrees, and each holder of the Debentures
issued hereunder by such holder's acceptance thereof likewise covenants and
56
agrees, that all the Debentures shall be issued subject to the provisions of
this Article XVI; and each holder of a Debenture, whether upon original issue or
upon transfer or assignment thereof, accepts and agrees to be bound by such
provisions. The payment by the Company of the principal of and interest on all
the Debentures issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and junior in right of payment to the
prior payment in full of all Senior Debt, Subordinated Debt and Additional
Senior Obligations of the Company (collectively, "Senior Indebtedness") to the
extent provided herein, whether outstanding at the date of this Indenture or
thereafter incurred. No provision of this Article XVI shall prevent the
occurrence of any default or Event of Default hereunder.
Section 16.2. Default on Senior Indebtedness.
Upon the occurrence and during any continuation of any default by the
Company in the payment of principal, premium, interest or any other payment due
on any Senior Indebtedness, or in the event that the maturity of any Senior
Indebtedness has been accelerated because of such a default, or in the event of
the commencement of a judicial proceeding with regard to such an alleged default
or event of default and such acceleration has not been rescinded or canceled and
such Senior Indebtedness has not been paid in full, then, in any case, no
payment shall be made by the Company with respect to the principal (including
redemption payments) of or interest on the Debentures. In the event that,
notwithstanding the foregoing, any payment shall be received by the Trustee when
such payment is prohibited by the preceding sentence of this Section 16.2, such
payment shall be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, but only to the extent that the holders of the Senior
Indebtedness (or their representative or representatives or a trustee) notify
the Trustee in writing within 90 days of such payment of the amounts then due
and owing on the Senior Indebtedness and only the amounts specified in such
notice to the Trustee shall be paid to the holders of the Senior Indebtedness.
Section 16.3. Liquidation; Dissolution; Bankruptcy.
(a) Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all Senior Indebtedness
shall first be paid in full, or payment thereof provided for in money in
accordance with its terms, before any payment is made by the Company on account
of the principal or interest on the Debentures; and upon any such dissolution or
winding-up or liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to which the holders of the Debentures
57
or the Trustee would be entitled to receive from the Company, except for the
provisions of this Article XVI, shall be paid by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution, or by the holders of the Debentures or by the Trustee
under this Indenture if received by them or it, directly to the holders of
Senior Indebtedness or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, as calculated by the Company, for application to the
payment of all Senior Indebtedness remaining unpaid to the extent necessary to
pay such Senior Indebtedness in full, in money or money's worth, in accordance
with its terms after giving effect to any concurrent payment or distribution to
or for the benefit of the holders of such Senior Indebtedness, before any
payment or distribution is made to the holders of the Debentures or to the
Trustee.
(b) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee before all Senior Indebtedness is paid in full, or provision is made for
such payment in money in accordance with its terms, such payment or distribution
shall be held in trust for the benefit of and shall be paid over or delivered to
the holders of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective interests may appear, as calculated by the Company, for
application to the payment of all Senior Indebtedness remaining unpaid to the
extent necessary to pay such Senior Indebtedness in full in money or money's
worth, in accordance with its terms, after giving effect to any concurrent
payment or distribution to or for the benefit of the holders of such Senior
Indebtedness.
(c) For purposes of this Article XVI, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article XVI with respect
to the Debentures to the payment of all Senior Indebtedness, that may at the
time be outstanding, provided that (i) such Senior Indebtedness is assumed by
the new corporation, if any, resulting from any such reorganization or
readjustment; and (ii) the rights of the holders of such Senior Indebtedness are
not, without the consent of such holders as are required to approve such plan of
reorganization or readjustment, altered by such reorganization or readjustment.
The consolidation of the Company with, or the merger of the Company into,
another corporation or the liquidation or dissolution of the Company following
the conveyance or transfer of its property as an entirety, or substantially as
an entirety, to another corporation upon the terms and conditions provided for
in Article XII shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 16.3 if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article XII. Nothing in Section 16.2 or in this
Section 16.3 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 9.7.
58
Section 16.4. Subrogation.
(a) Subject to the payment in full of all Senior Indebtedness, the
rights of the holders of the Debentures shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company, applicable to such Senior
Indebtedness until the principal of and interest on the Debentures shall be paid
in full; and, for the purposes of such subrogation, no payments or distributions
to the holders of such Senior Indebtedness of any cash, property or securities
to which the holders of the Debentures or the Trustee would be entitled except
for the provisions of this Article XVI, and no payment over pursuant to the
provisions of this Article XVI to or for the benefit of the holders of such
Senior Indebtedness by holders of the Debentures or the Trustee, shall, as
between the Company, its creditors (other than holders of Senior Indebtedness of
the Company), and the holders of the Debentures, be deemed to be a payment by
the Company to or on account of such Senior Indebtedness. It is understood that
the provisions of this Article XVI are and are intended solely for the purposes
of defining the relative rights of the holders of the Debentures, on the one
hand, and the holders of such Senior Indebtedness on the other hand.
(b) Nothing contained in this Article XVI or elsewhere in this
Indenture or in the Debentures is intended to or shall impair, as between the
Company, its creditors (other than the holders of Senior Indebtedness), and the
holders of the Debentures, the obligation of the Company, which is absolute and
unconditional, to pay to the holders of the Debentures the principal of and
interest on the Debentures as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the holders of the Debentures and creditors of the Company other than
the holders of Senior Indebtedness nor shall anything herein or therein prevent
the Trustee or the holder of any Debenture from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article XVI of the holders of such Senior
Indebtedness in respect of cash, property or securities of the Company received
upon the exercise of any such remedy.
(c) Upon any payment or distribution of assets of the Company referred
to in this Article XVI, the Trustee, subject to the provisions of Article IX,
and the holders of the Debentures shall be entitled to conclusively rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the holders of the Debentures, for the purposes of ascertaining
the Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article XVI.
59
Section 16.5. The Trustee to Effectuate Subordination.
Each holder of Debentures by such holder's acceptance thereof
authorizes and directs the Trustee on such holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article XVI and appoints the Trustee such holder's attorney-in-fact for any
and all such purposes.
Section 16.6. Notice by the Company.
(a) The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Debentures pursuant to the provisions of this Article XVI. Notwithstanding the
provisions of this Article XVI or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment of monies to or by the Trustee in
respect of the Debentures pursuant to the provisions of this Article XVI, unless
and until a Responsible Officer of the Trustee shall have received written
notice thereof from the Company or a holder or holders of Senior Indebtedness or
from any trustee therefor; and before the receipt of any such written notice,
the Trustee, subject to the provisions of Section 9.1, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section 16.6 at
least two Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal of or interest on any Debenture), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purposes for which
they were received, and shall not be affected by any notice to the contrary that
may be received by it within two Business Days prior to such date.
(b) The Trustee, subject to the provisions of Section 9.1, shall be
entitled to conclusively rely on the delivery to it of a written notice by a
Person representing himself or herself to be a holder of Senior Indebtedness (or
a trustee on behalf of such holder) to establish that such notice has been given
by a holder of such Senior Indebtedness or a trustee on behalf of any such
holder or holders. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of such Senior Indebtedness to participate in any payment or distribution
pursuant to this Article XVI, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of such
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article XVI, and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 16.7. Rights of the Trustee; Holders of the Senior
Indebtedness.
(a) The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XVI in respect of any Senior Indebtedness at
any time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder. The Trustee's right to compensation and reimbursement
of
60
expenses as set forth in Section 9.7 shall not be subject to the subordination
provisions of this Article XVI.
(b) With respect to the holders of the Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article XVI, and no implied covenants or
obligations with respect to the holders of such Senior Indebtedness shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of such Senior Indebtedness and, subject
to the provisions of Section 9.1, the Trustee shall not be liable to any holder
of such Senior Indebtedness if it shall pay over or deliver to holders of
Debentures, the Company or any other Person money or assets to which any holder
of such Senior Indebtedness shall be entitled by virtue of this Article XVI or
otherwise.
Section 16.8. Subordination May Not Be Impaired.
(a) No right of any present or future holder of any Senior Indebtedness
to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
otherwise be charged with.
(b) Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the holders of the
Debentures, without incurring responsibility to the holders of the Debentures
and without impairing or releasing the subordination provided in this Article
XVI or the obligations hereunder of the holders of the Debentures to the holders
of such Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, such Senior Indebtedness, or otherwise amend or supplement in any manner
such Senior Indebtedness or any instrument evidencing the same or any agreement
under which such Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing such Senior Indebtedness; (iii) release any Person liable in any manner
for the collection of such Senior Indebtedness; and (iv) exercise or refrain
from exercising any rights against the Company and any other Person.
61
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
NATIONAL PENN BANCSHARES, INC.
By:
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chairman, President and
Chief Executive Officer
Attest:
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
CHRISTIANA BANK & TRUST COMPANY,
as Trustee
By:
--------------------------------
Name:
Title:
Attest:
------------------------------------
Name:
Title:
62
COMMONWEALTH OF PENNSYLVANIA :
COUNTY OF ___________ :
On this______ day of August, 2002, before me appeared Xxxxx X. Xxxxxxx
and Xxxxxx X. Xxxxx, to me personally known, who, being by me duly sworn, did
say that they are the Chairman, President and Chief Executive Officer and
Secretary, respectively, of National Penn Bancshares, Inc., and that the seal
affixed to said instrument is the corporate seal of said corporation, and that
said instrument was signed and sealed on behalf of said corporation by authority
of its Board of Directors and said person acknowledged said instrument to be the
free act and deed of said corporation.
In testimony whereof I have hereunto set my hand and affixed my
official seal at my office in said county and state the day and year last above
written.
-------------------------------------
Notary Public
My term expires:
---------------------
STATE OF DELAWARE :
COUNTY OF :
------------
On this ______ day of August, 2002, before me appeared
___________________ and ________________________, to me personally known, who,
being by me duly sworn, did say that they are the _____________________ and
__________________of Christiana Bank & Trust Company, and that the seal affixed
to said instrument is the corporate seal of said corporation, and that said
instrument was signed and sealed on behalf of said corporation by authority of
its Board of Directors and said person, acknowledged said instrument to be the
free act and deed of said corporation.
In testimony whereof I have hereunto set my hand and affixed my
official seal at my office in said county and commonwealth the day and year last
above written.
-------------------------------------
Notary Public
My term expires:
---------------------
63
EXHIBIT A
(Form of Face of Debenture)
No. _______ $______________
CUSIP No. ______________________
NATIONAL PENN BANCSHARES, INC.
_____% SUBORDINATED DEBENTURE
DUE 2032
National Penn Bancshares, Inc., a Pennsylvania business corporation (the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
Christiana Bank & Trust Company, as Property Trustee for NPB Capital Trust II,
or registered assigns, the principal sum of ______________________($_____) on
September 30, 2032 (the "Stated Maturity") or earlier if so provided in the
Indenture referred to on the reverse side of this Debenture (as amended from
time to time, the "Indenture"), and to pay interest on said principal sum from
August __, 2002, or from the most recent interest payment date to which interest
has been paid or duly provided for, quarterly (subject to deferral as set forth
herein) in arrears on March 31, June 30, September 30 and December 31 of each
year commencing September 30, 2002, at the rate of _______% per annum until the
principal hereof shall have become due and payable, and on any overdue principal
and (without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum compounded quarterly. All terms used in this Debenture that
are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
The amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year of twelve 30-day months. The amount of
interest for any partial period shall be computed on the basis of the number of
days elapsed in a 360-day year of twelve 30-day months. In the event that any
date on which interest is payable on this Debenture is not a business day, then
payment of interest payable on such date shall be made on the next succeeding
day that is a business day (and without any interest or other payment in respect
of any such delay) except that, if such business day is in the next succeeding
calendar year, payment of such interest will be made on the immediately
preceding business day (and without reduction of interest or any other payment
in respect of such acceleration), in each case, with the same force and effect
as if made on such date. The interest installment so payable, and punctually
paid or duly provided for, on any Interest Payment Date shall, as provided in
the Indenture, be paid to the person in whose name this Debenture (or one or
more Predecessor Debentures, as defined in said Indenture) is registered at the
close of business on the regular record date for such interest installment,
which
64
shall be the close of business on the fifteenth day of the last month of the
calendar quarter unless otherwise provided in the Indenture. Any such interest
installment not punctually paid or duly provided for shall forthwith cease to be
payable to the registered holders on such regular record date and may be paid to
the Person in whose name this Debenture (or one or more Predecessor Debentures)
is registered at the close of business on a special record date to be fixed by
the Trustee for the payment of such defaulted interest, notice thereof shall be
fixed by the Trustee for the payment of such defaulted interest, notice thereof
shall be given to the registered holders of the Debentures not less than 10 days
prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
or quotation system on or in which the Debentures may be listed or quoted, and
upon such notice as may be required by such exchange.
The principal of and the interest on this Debenture shall be payable at
the office or agency of the Trustee maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
registered holder at such address as shall appear in the Debenture Register or
by wire transfer to an account maintained by the holder as specified in the
Debenture Register, provided that the holder provides proper transfer
instructions by the regular record date. Notwithstanding the foregoing, so long
as the holder of this Debenture is the Property Trustee, the payment of the
principal of and interest on this Debenture shall be made at such place and to
such account as may be designated by the Trustee.
The Stated Maturity may be shortened at any time by the Company to any
date not earlier than September 30, 2007, subject to the Company having received
all required regulatory approvals. The indebtedness evidenced by this Debenture
is, to the extent provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior Indebtedness. This Debenture
is issued subject to the provisions of the Indenture with respect thereto. Each
holder of this Debenture, by accepting the same, (a) agrees to and shall be
bound by such provisions; (b) authorizes and directs the Trustee on his or her
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided; and (c) appoints the Trustee his or
her attorney-in-fact for any and all such purposes. Each holder hereof, by his
or her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
65
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed. Dated: August ___, 2002
NATIONAL PENN BANCSHARES, INC.
By:
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chairman, President and
Chief Executive Officer
Attest:
By:
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
66
[Form of Certificate of Authentication]
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures described in the within-mentioned Indenture.
Dated: August ___, 2002
Christiana Bank & Trust Company,
as Trustee or Authenticating Agent
By: By:
------------------------------ ------------------------------
Authorized Signatory
67
(Form of Reverse of Debenture)
_____% SUBORDINATED DEBENTURE DUE 2032
This Debenture is one of the subordinated debentures of the Company
(herein sometimes referred to as the "Debentures"), all issued or to be issued
under and pursuant to an Indenture dated as of August __, 2002 (as amended from
time to time, the "Indenture") duly executed and delivered between the Company
and Christiana Bank & Trust Company, as Trustee (the Trustee"), to which
Indenture reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the holders of the Debentures. The Debentures are limited in
aggregate principal amount as specified in the Indenture.
The Company shall have the right as set forth in the Indenture to
redeem this Debenture at the option of the Company, without premium or penalty,
in whole or in part at any time on or after September 30, 2007 (an "Optional
Redemption"), and at any time under certain circumstances upon the occurrence of
a Special Event, in each case at a redemption price (the "Redemption Price")
equal to 100% of the principal amount hereof plus any accrued but unpaid
interest hereon, to the date of such redemption. Any redemption pursuant to this
paragraph shall be made upon not less than thirty (30) days' nor more than sixty
(60) days' notice, at the Redemption Price. The Redemption Price shall be paid
at the time and in the manner provided therefore in the Indenture. If the
Debentures are only partially redeemed by the Company pursuant to an Optional
Redemption, the Debentures shall be redeemed pro rata or by lot or by any other
method utilized by the Trustee as described in the Indenture. In the event of an
Optional Redemption of this Debenture in part only, a new Debenture or
Debentures for the unredeemed portion hereof shall be issued in the name of the
holder hereof upon the cancellation hereof.
In case an Event of Default (as defined in the Indenture) shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debentures at the time Outstanding (as defined
in the Indenture), to execute supplemental indentures for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Debentures; provided, however, that no such
supplemental indenture shall, except as provided in the Indenture, (i) extend
the fixed maturity of the Debentures, reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or limit the
right of a holder of Preferred Securities to institute and prosecute a Direct
Action without the consent of the holder of each Debenture so affected thereby;
or (ii) reduce the
68
aforesaid percentage of the Debentures, the holders of which are required to
consent to any such supplemental indenture, without the consent of the holder of
each Debenture then Outstanding and so affected thereby. The Indenture also
contains provisions permitting the holders of at least a majority in aggregate
principal amount of the Debentures at the time Outstanding, on behalf of all of
the holders of the Debentures, to waive any past default in the performance of
any of the covenants contained in the Indenture, or established pursuant to the
Indenture, and its consequences, except a default in the payment of the
principal of or interest on any of the Debentures. Any such consent or waiver by
the registered holder of this Debenture (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such holder and upon all future
holders and owners of this Debenture and of any Debenture issued in exchange
therefor or in place hereof (whether by registration of transfer or otherwise),
irrespective of whether or not any notation of such consent or waiver is made
upon this Debenture. The Indenture also provides certain rights in favor of the
holders of the Preferred Securities to consent to certain actions and to
institute certain direct actions against the Company under the circumstances
described in the Indenture.
No reference herein to the Indenture and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal and interest on this
Debenture at the time and place and at the rate and in the manner prescribed
herein and in the Indenture.
The Company, as further described in the Indenture, shall have the
right at any time during the term of the Debentures and from time to time to
defer payments of interest by extending the interest payment period of such
Debentures for up to twenty (20) consecutive quarters (each, an "Extension
Period"), at the end of which period the Company shall pay all interest then
accrued (together with interest thereon at the rate specified for the Debentures
to the extent that payment of such interest is enforceable under applicable
law). Before the termination of any such Extension Period, so long as no Event
of Default shall have occurred and be continuing, the Company may further extend
such Extension Period, provided that such Extension Period together with all
such further extensions thereof shall not exceed twenty (20) consecutive
quarters, extend beyond September 30, 2032, or end on a date other than an
Interest Payment Date. At the termination of any such Extension Period and upon
the payment of all Deferred Payments then due, the Company may commence a new
Extension Period.
As provided in the Indenture and subject to certain limitations therein
set forth, this Debenture is transferable by the registered holder hereof on the
Debenture Register of the Company, upon surrender of this Debenture for
registration of transfer at the office or agency of the Trustee accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered holder hereof or his or
her attorney duly authorized in writing, and thereupon one or more new
Debentures of authorized denominations and for the same aggregate principal
amount shall be issued to the designated transferee or transferees. No service
charge shall be made for any such transfer, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
relation thereto.
69
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any Paying Agent and the Debenture
Registrar may deem and treat the registered holder hereof specified on the
Debenture Register as the absolute owner hereof (whether or not this Debenture
shall be overdue and notwithstanding any notice of ownership or writing hereon
made by anyone other than the Debenture Registrar) for the purpose of receiving
payment of or on account of the principal hereof and interest due hereon and for
all other purposes, and neither the Company nor the Trustee nor any Paying Agent
nor any Debenture Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, shareholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Debentures are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof (or such other
denominations and any integral multiple thereof as may be deemed necessary by
the Company for the purpose of maintaining the eligibility of the Debentures for
inclusion in the Nasdaq National Market or any successor thereto).
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
70