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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 6, 1997
FIRST EMPIRE STATE CORPORATION
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(Exact name of registrant as specified in its charter)
New York
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(State or other jurisdiction of incorporation)
1-9861 16-0968385
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(Commission File Number) (I.R.S. Employer Identification No.)
One M&T Plaza, Buffalo, New York 14240
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (716) 842-5445
(NOT APPLICABLE)
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(Former name or former address, if changed since last report)
Item 5. Other Events.
First Empire State Corporation ("First Empire") made a public announcement
on June 6, 1997 that it had completed a second trust capital securities offering
that raised $100 million of capital. The public announcement was made by means
of a news release, the text of which is set forth in Exhibit 99.1 hereto.
The Registration Statement relating to the trust capital securities
offering is filed with the Securities and Exchange Commission at File Nos.
333-28279 and 333-28279-01. Exhibits 4.1, 4.2 and 4.3 hereto, respectively, set
forth the Amended and Restated Trust Agreement, Junior Subordinated Indenture
and Guarantee Agreement in the forms executed at the closing of the trust
capital securities offering on June 6, 1997.
Item 7. Financial Statements and Exhibits.
The following exhibits are filed as a part of this report:
Exhibit No.
-----------
4.1 Amended and Restated Trust Agreement dated as of June 6,
1997 by and among First Empire State Corporation,
Bankers Trust Company, Bankers Trust (Delaware), and the
Administrators named therein. Filed herewith.
4.2 Junior Subordinated Indenture dated as of June 6,
1997 by and between First Empire State Corporation
and Bankers Trust Company. Filed herewith.
4.3 Guarantee Agreement dated as of June 6, 1997 by and
between First Empire State Corporation and Bankers Trust
Company. Filed herewith.
99.1 News release. Filed herewith.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
FIRST EMPIRE STATE CORPORATION
Date: June 11, 1997 By: /s/ Michael P. Pinto
------------------------------
Michael P. Pinto
Executive Vice President
and Chief Financial Officer
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Report Dated: June 6, 1997 Commission File Number: 1-9861
FIRST EMPIRE STATE CORPORATION
(Exact name of registrant as specified in its charter)
EXHIBITS
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EXHIBIT INDEX
Exhibit No.
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4.1 Amended and Restated Trust Agreement dated as of June 6, 1997 by and
among First Empire State Corporation, Bankers Trust Company, Bankers
Trust (Delaware), and the Administrators named therein. Filed
herewith.
4.2 Junior Subordinated Indenture dated as of June 6, 1997 by and
between First Empire State Corporation and Bankers Trust Company.
Filed herewith.
4.3 Guarantee Agreement dated as of June 6, 1997 by and between First
Empire State Corporation and Bankers Trust Company. Filed herewith.
99.1 News release. Filed herewith.
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Exhibit 4.1
================================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
among
FIRST EMPIRE STATE CORPORATION, as Depositor,
BANKERS TRUST COMPANY,
as Property Trustee,
and
BANKERS TRUST (DELAWARE),
as Delaware Trustee
Dated as of June 6, 1997
FIRST EMPIRE CAPITAL TRUST II
================================================================================
FIRST EMPIRE CAPITAL TRUST II
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
--------------- ---------------
(ss.) 310(a)(1)................................. 8.7
(a)(2).................................. 8.7
(a)(3).................................. 8.9
(a)(4).................................. 2.7(a)(ii)
(b)..................................... 8.8, 10.10(b)
(ss.) 311(a).................................... 8.13, 10.10(b)
(b)..................................... 8.13, 10.10(b)
(ss.) 312(a).................................... 10.10(b)
(b)..................................... 10.10(b), (f)
(c)..................................... 5.7
(ss.) 313(a).................................... 8.15(a)
(a)(4).................................. 10.10(c)
(b)..................................... 8.15(c), 10.10(c)
(c)..................................... 10.8, 10.10(c)
(d)..................................... 10.10(c)
(ss.) 314(a).................................... 8.16, 10.10(d)
(b)..................................... Not Applicable
(c)(1).................................. 8.17, 10.10(d), (e)
(c)(2).................................. 8.17, 10.10(d), (e)
(c)(3).................................. 8.17, 10.10(d), (e)
(e)..................................... 8.17, 10.10(e)
(ss.) 315(a).................................... 8.1(d)
(b)..................................... 8.2
(c)..................................... 8.1(c)
(d)..................................... 8.1(d)
(e)..................................... Not Applicable
(ss.) 316(a).................................... Not Applicable
(a)(1)(A)............................... Not Applicable
(a)(1)(B)............................... Not Applicable
(a)(2).................................. Not Applicable
(b)..................................... 5.13
(c)..................................... 6.7
(ss.) 317(a)(1)................................. Not Applicable
(a)(2).................................. 8.14
(b)..................................... 5.10
(ss.) 318(a).................................... 10.10(a)
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Trust Agreement.
TABLE OF CONTENTS
Page
----
ARTICLE I. DEFINED TERMS
SECTION 1.1. Definitions......................................... 2
ARTICLE II. CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name................................................ 16
SECTION 2.2. Office of the Delaware Trustee; Principal
Place of Business................................... 16
SECTION 2.3. Initial Contribution of Trust Property;
Organizational Expenses............................. 16
SECTION 2.4. Issuance of the Capital Securities.................. 16
SECTION 2.5. Issuance of the Common Securities;
Subscription and Purchase of Junior
Subordinated Debentures............................. 17
SECTION 2.6. Declaration of Trust................................ 17
SECTION 2.7. Authorization to Enter into Certain
Transactions........................................ 18
SECTION 2.8. Assets of Trust..................................... 21
SECTION 2.9. Title to Trust Property............................. 21
ARTICLE III. PAYMENT ACCOUNT
SECTION 3.1. Payment Account..................................... 22
ARTICLE IV. DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions....................................... 22
SECTION 4.2. Redemption.......................................... 24
SECTION 4.3. Subordination of Common Securities.................. 27
SECTION 4.4. Payment Procedures.................................. 27
SECTION 4.5. Tax Returns and Reports............................. 28
SECTION 4.6. Payment of Taxes, Duties, Etc.
of the Issuer Trust................................. 28
SECTION 4.7. Payments under Indenture or Pursuant to
Direct Actions...................................... 29
SECTION 4.8. Liability of the Holder of Common Securities........ 29
ARTICLE V. TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership................................... 29
SECTION 5.2. The Trust Securities Certificates................... 29
SECTION 5.3. Execution and Delivery of Trust
Securities Certificates............................. 30
SECTION 5.4. Global Capital Security............................. 30
SECTION 5.5. Registration of Transfer and Exchange
Generally; Certain Transfers and
Exchanges; Capital Securities Certificates.......... 32
SECTION 5.6. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates....................... 34
SECTION 5.7. Persons Deemed Holders.............................. 34
SECTION 5.8. Access to List of Holders'
Names and Addresses................................. 34
SECTION 5.9. Maintenance of Office or Agency..................... 35
SECTION 5.10. Appointment of Paying Agent......................... 35
SECTION 5.11. Ownership of Common Securities
by Depositor........................................ 36
SECTION 5.12. Notices to Clearing Agency.......................... 36
SECTION 5.13. Rights of Holders................................... 36
ARTICLE VI. ACTS OF HOLDERS; MEETINGS;
VOTING
SECTION 6.1. Limitations on Holder's Voting Rights............... 39
SECTION 6.2. Notice of Meetings.................................. 40
SECTION 6.3. Meetings of Holders................................. 40
SECTION 6.4. Voting Rights....................................... 41
SECTION 6.5. Proxies, etc........................................ 41
SECTION 6.6. Holder Action by Written
Consent............................................. 42
SECTION 6.7. Record Date for Voting and Other
Purposes............................................ 42
SECTION 6.8. Acts of Holders..................................... 42
SECTION 6.9. Inspection of Records............................... 43
ARTICLE VII. REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties
of the Property Trustee and
the Delaware Trustee................................ 44
SECTION 7.2. Representations and Warranties of
Depositor........................................... 45
ARTICLE VIII. THE ISSUER TRUSTEES; THE ADMINISTRATORS
SECTION 8.1. Certain Duties and Responsibilities................. 46
SECTION 8.2. Certain Notices..................................... 49
SECTION 8.3. Certain Rights of Property Trustee.................. 49
SECTION 8.4. Not Responsible for Recitals
or Issuance of Securities........................... 51
SECTION 8.5. May Hold Securities................................. 51
SECTION 8.6. Compensation; Indemnity; Fees....................... 51
SECTION 8.7. Corporate Property Trustee Required;
Eligibility of Trustees and Administrators.......... 53
SECTION 8.8. Conflicting Interests............................... 53
SECTION 8.9. Co-Trustees and Separate Trustee.................... 54
SECTION 8.10. Resignation and Removal; Appointment of
Successor........................................... 55
SECTION 8.11. Acceptance of Appointment by
Successor........................................... 57
SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business.............................. 58
SECTION 8.13. Preferential Collection of Claims
Against Depositor or Issuer Trust................... 58
SECTION 8.14. Trustee May File Proofs of Claim.................... 58
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SECTION 8.15. Reports by Property Trustee......................... 59
SECTION 8.16. Reports to the Property Trustee..................... 60
SECTION 8.17. Evidence of Compliance with Conditions
Precedent........................................... 60
SECTION 8.18. Number of Issuer Trustees........................... 60
SECTION 8.19. Delegation of Power................................. 60
SECTION 8.20. Appointment of Administrators....................... 61
ARTICLE IX. DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.................... 62
SECTION 9.2. Early Termination................................... 62
SECTION 9.3. Termination......................................... 62
SECTION 9.4. Liquidation......................................... 63
SECTION 9.5. Mergers, Consolidations, Amalgamations
or Replacements of the Issuer Trust................. 64
ARTICLE X. MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders..................... 66
SECTION 10.2. Amendment........................................... 66
SECTION 10.3. Separability........................................ 67
SECTION 10.4. Governing Law....................................... 68
SECTION 10.5. Payments Due on Non-Business Day.................... 68
SECTION 10.6. Successors.......................................... 69
SECTION 10.7. Headings............................................ 69
SECTION 10.8. Reports, Notices and Demands........................ 69
SECTION 10.9. Agreement Not to Petition........................... 70
SECTION 10.10. Trust Indenture Act; Conflict with
Trust Indenture Act................................. 70
SECTION 10.11. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture............................. 72
Exhibit A Certificate of Trust
Exhibit B Form of Certificate Depositary Agreement
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Capital Securities Certificate
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AGREEMENT
Amended and Restated Trust Agreement, dated as of June 6, 1997,
among (i) First Empire State Corporation, a New York corporation
(including any successors or assigns, the "Depositor"), (ii) Bankers
Trust Company, a New York banking corporation, as property trustee,
(in such capacity, the "Property Trustee" and, in its separate
corporate capacity and not in its capacity as Property Trustee, the
"Bank"), and (iii) Bankers Trust (Delaware), a Delaware banking
corporation, as Delaware trustee (the "Delaware Trustee") (the
Property Trustee and the Delaware Trustee are referred to
collectively herein as the "Issuer Trustees") and (iv) the several
Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Issuer Trust has been established under the
Delaware Business Trust Act pursuant to a certain Trust Agreement,
dated as of May 30, 1997 (the "Original Trust Agreement"), and by the
filing of the Certificate of Trust of the Issuer Trust with the
Secretary of State of the State of Delaware on May 30, 1997 (the
"Certificate of Trust"), which Certificate of Trust is attached as
Exhibit A; and
WHEREAS, the Depositor, the Property Trustee and the Delaware
Trustee desire to amend and restate the Original Trust Agreement in
its entirety as set forth herein to provide for, among other things,
(i) the issuance of the Common Securities by the Issuer Trust to the
Depositor, (ii) the issuance and sale of the Capital Securities by
the Issuer Trust pursuant to the Underwriting Agreement, (iii) the
acquisition by the Issuer Trust from the Depositor of all of the
right, title and interest in the Junior Subordinated Debentures, and
(iv) the appointment of the Administrators.
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, each party, for the benefit of the other parties and
for the benefit of the Holders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees, intending to be
legally bound, as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(b) All other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) The words "include," "includes" and "including" shall
be deemed to be followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles as in effect at the time of
computation;
(e) Unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the
case may be, of this Trust Agreement; and
(f) The words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and
not to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of
a given Liquidation Amount and/or a given period, the amount of
Additional Interest (as defined in the Indenture) paid by the
Depositor on a Like Amount of Debentures for such period.
"Additional Sums" has the meaning specified in
Section 10.6 of the Indenture.
"Adjusted Treasury Rate" means, with respect to any Redemption
Date, the Treasury Rate plus (i) 110 basis points if such Redemption
Date occurs on or before June 1, 1998 or (ii) 50 basis points if such
Redemption Date occurs after June 1, 1998.
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"Administrators" means each Person appointed in accordance with
Section 8.20 solely in such Person's capacity as Administrator of the
Issuer Trust heretofore formed and continued hereunder and not in
such Person's individual capacity, or any successor Administrator
appointed as herein provided; with the initial Administrators being
Darlene A. Spychala and Timothy C. McEvoy.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Capital Security or beneficial
interest therein, the rules and procedures of the Depositary for such
Capital Security, in each case to the extent applicable to such
transaction and as in effect from time to time.
"Bank" has the meaning specified in the preamble to this
Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under any applicable federal or State
bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of such Person or of any substantial part
of its property or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order unstayed and
in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or
the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal or State
bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the
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appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or similar official) of such Person or of any
substantial part of its property or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due and its
willingness to be adjudicated a bankrupt, or the taking of corporate
action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in
Section 10.9.
"Board of Directors" means the board of directors of the
Depositor or the Executive Committee of the board of directors of the
Depositor (or any other committee of the board of directors of the
Depositor performing similar functions) or a committee designated by
the board of directors of the Depositor (or any such committee),
comprised of two or more members of the board of directors of the
Depositor or officers of the Depositor, or both.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Depositor to have been
duly adopted by the Depositor's Board of Directors, or such committee
of the Board of Directors or officers of the Depositor to which
authority to act on behalf of the Board of Directors has been
delegated, and to be in full force and effect on the date of such
certification, and delivered to the Issuer Trustees.
"Business Day" means a day other than (a) a Saturday or Sunday,
(b) a day on which banking institutions in the City of New York or in
the City of Buffalo, New York are authorized or required by law or
executive order to remain closed or (c) a day on which the Property
Trustee's Corporate Trust Office or the Delaware Trustee's Corporate
Trust Office or the Corporate Trust Office of the Debenture Trustee
is closed for business.
"Capital Securities Certificate" means a certificate evidencing
ownership of Capital Securities, substantially in the form attached
as Exhibit D.
"Capital Security" means a preferred undivided beneficial
interest in the assets of the Issuer Trust, having a Liquidation
Amount of $1,000 and having the rights provided therefor in this
Trust Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Capital Treatment Event" means, in respect of any Issuer
Trust, the reasonable determination by the Depositor that, as a
result of the occurrence of any amendment to, or change
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(including any announced prospective change) in, the laws (or any
rules or regulations thereunder) of the United States or any
political subdivision thereof or therein, or as a result of any
official or administrative pronouncement or action or judicial
decision interpreting or applying such laws or regulations, which
amendment or change is effective or such pronouncement, action or
decision is announced on or after the date of the issuance of the
Capital Securities of such Issuer Trust, there is more than an
insubstantial risk that the Depositor will not be entitled to treat
an amount equal to the Liquidation Amount of such Capital Securities
as "Tier 1 Capital" (or the then equivalent thereof) for purposes of
the risk-based capital adequacy guidelines of the Board of Governors
of the Federal Reserve System or the New York State Banking
Department, as then in effect and applicable to the Depositor.
"Certificate Depositary Agreement" means the agreement among
the Issuer Trust, the Depositor and the Depositary, as the initial
Clearing Agency, dated as of the Closing Date, substantially in the
form attached as Exhibit B, as the same may be amended and
supplemented from time to time.
"Certificate of Trust" has the meaning specified in the
preamble to this Trust Agreement.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange
Act of 1934, as amended. The Depositary shall be the initial Clearing
Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to
time a Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency.
"Closing Date" has the meaning specified in the Underwriting
Agreement.
"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 Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as
Exhibit C.
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"Common Security" means an undivided beneficial interest in the
assets of the Issuer Trust, having a Liquidation Amount of $1,000 and
having the rights provided therefor in this Trust Agreement,
including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"Comparable Treasury Issue" means with respect to any
Redemption Date the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the Remaining Life
that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the Remaining Life. If no
United States Treasury security has a maturity which is within a
period from three months before to three months after June 1, 2027,
the two most closely corresponding United States Treasury securities
shall be used as the Comparable Treasury Issue, and the Treasury Rate
shall be interpolated or extrapolated on a straight-line basis,
rounding to the nearest month using such securities.
"Comparable Treasury Price" means (A) the average of five
Reference Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or (B) if the Debenture Trustee obtains fewer than five
such Reference Treasury Dealer Quotations, the average of all such
Quotations.
"Corporate Trust Office" means the principal office of the
Property Trustee located in the City of New York which at the time of
the execution of this Trust Agreement is located at Four Albany
Street, New York, New York 10006; Attention: Corporate Trust and
Agency Group - Corporate Market Services.
"Debenture Event of Default" means an "Event of Default" as
defined in the Indenture.
"Debenture Redemption Date" means, with respect to any
Debentures to be redeemed under the Indenture, the date fixed for
redemption of such Debentures under the Indenture.
"Debenture Trustee" means Bankers Trust Company, a New York
banking corporation and any successor.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. ss. 3801, et seq., as it may be amended
from time to time.
"Delaware Trustee" means the corporation identified as the
"Delaware Trustee" in the preamble to this Trust Agreement solely in
its capacity as Delaware Trustee of the Issuer Trust
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continued hereunder and not in its individual capacity, or its
successor in interest in such capacity, or any successor trustee
appointed as herein provided.
"Depositor" has the meaning specified in the preamble to
this Trust Agreement.
"Depositary" means the Depository Trust Company or any
successor thereto.
"Distribution Date" has the meaning specified in Section
4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section
9.2.
"Event of Default" means any one of the following events
(whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Issuer Trust in the payment of any
Distribution when it becomes due and payable, and continuation of
such default for a period of 30 days; or
(c) default by the Issuer Trust in the payment of any
Redemption Price of any Trust Security when it becomes due and
payable; or
(d) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Issuer Trustees in this
Trust Agreement (other than a covenant or warranty a default in the
performance of which or the breach of which is dealt with in clause
(b) or (c) above) and continuation of such default or breach for a
period of 60 days after there has been given, by registered or
certified mail, to the Issuer Trustees and the Depositor by the
Holders of at least 25% in aggregate Liquidation Amount of the
Outstanding Capital Securities, a written notice specifying such
default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(e) the occurrence of any Bankruptcy Event with respect to the
Property Trustee or all or substantially all of its
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property if a successor Property Trustee has not been appointed
within a period of 90 days thereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and any successor statute thereto, in each case as
amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Global Capital Securities Certificate" means a Capital
Securities Certificate evidencing ownership of Global Capital
Securities.
"Global Capital Security" means a Capital Security, the
ownership and transfers of which shall be made through book entries
by a Clearing Agency as described in Section 5.4.
"Guarantee Agreement" means the Guarantee Agreement executed
and delivered by the Depositor and Bankers Trust Company, as trustee,
contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the holders of the Capital Securities,
as amended from time to time.
"Holder" means a Person in whose name a Trust Security or Trust
Securities is registered in the Securities Register; any such Person
shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act.
"Indenture" means the Junior Subordinated Indenture, dated as
of June 6, 1997, between the Depositor and the Debenture Trustee (as
amended or supplemented from time to time) relating to the issuance
of the Junior Subordinated Debentures.
"Investment Company Act" means the Investment Company Act of
1940, as amended.
"Investment Company Event" means the receipt by the Issuer
Trust of an Opinion of Counsel experienced in such matters to the
effect that, as a result of the occurrence of a change in law or
regulation or a written change (including any announced prospective
change) in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority,
there is more than an insubstantial risk that the Issuer Trust is or
will be considered an "investment company" that is required to be
registered under the Investment Company Act, which change or
prospective change becomes effective or would become effective, as
the case may be, on or after the date of the issuance of the Capital
Securities.
"Issuer Trust" means First Empire Capital Trust II.
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"Issuer Trustees" means, collectively, the Property Trustee and
the Delaware Trustee.
"Junior Subordinated Debentures" means the aggregate principal
amount of the Depositor's 8.277% Junior Subordinated Deferrable
Interest Debentures, due June 1, 2027, issued pursuant to the
Indenture.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment,
security interest or preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to
that portion of the principal amount of Junior Subordinated
Debentures to be contemporaneously redeemed in accordance with the
Indenture, allocated to the Common Securities and to the Capital
Securities based upon the relative Liquidation Amounts of such
classes and (b) with respect to a distribution of Junior Subordinated
Debentures to Holders of Trust Securities in connection with a
dissolution or liquidation of the Issuer Trust, Junior Subordinated
Debentures having a principal amount equal to the Liquidation Amount
of the Trust Securities of the Holder to whom such Junior
Subordinated Debentures are distributed.
"Liquidation Amount" means the stated amount of $1,000 per
Trust Security.
"Liquidation Date" means the date on which Junior Subordinated
Debentures are to be distributed to Holders of Trust Securities in
connection with a dissolution and liquidation of the Issuer Trust
pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"Majority in Liquidation Amount of the Capital Securities" or
"Majority in Liquidation Amount of the Common Securities" means,
except as provided by the Trust Indenture Act, Capital Securities or
Common Securities, as the case may be, representing more than 50% of
the aggregate Liquidation Amount of all then Outstanding Capital
Securities or Common Securities, as the case may be.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board and Chief Executive Officer, President or a
Senior Vice President or Vice President, and by the Treasurer,
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an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Depositor, and delivered to the party provided herein. Any
Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall
include:
(a) a statement by each officer signing the Officers'
Certificate that such officer has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by such officer in
rendering the Officers' Certificate;
(c) a statement that such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for or an employee of the Depositor or any Affiliate
of the Depositor.
"Original Trust Agreement" has the meaning specified in the
preamble to this Trust Agreement.
"Outstanding," with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed
and delivered under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property
Trustee or delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such Capital
Securities, provided that if such Trust Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange
for or in lieu of which other Trust Securities have been executed and
delivered pursuant to Sections 5.4, 5.5, 5.6 and 5.13;
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provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Capital Securities
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Capital Securities owned by the
Depositor, or any Issuer Trustee, any Administrator or any Affiliate
of the Depositor or any Issuer Trustee shall be disregarded and
deemed not to be Outstanding, except that (a) in determining whether
any Issuer Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver,
only Capital Securities that such Issuer Trustee or such
Administrator, as the case may be, knows to be so owned shall be so
disregarded and (b) the foregoing shall not apply at any time when
all of the outstanding Capital Securities are owned by the Depositor,
one or more of the Issuer Trustees, one or more of the Administrators
and/or any such Affiliate. Capital Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrators the
pledgee's right so to act with respect to such Capital Securities and
that the pledgee is not the Depositor or any Affiliate of the
Depositor.
"Owner" means each Person who is the beneficial owner of Global
Capital Securities as reflected in the records of the Clearing Agency
or, if a Clearing Agency Participant is not the Owner, then as
reflected in the records of a Person maintaining an account with such
Clearing Agency (directly or indirectly), in accordance with the
rules of such Clearing Agency.
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.10 and shall initially be the
Property Trustee.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained with the Property Trustee in its
trust department for the benefit of the Holders in which all amounts
paid in respect of the Junior Subordinated Debentures will be held
and from which the Property Trustee, through the Paying Agent, shall
make payments to the Holders in accordance with Sections 4.1 and 4.2.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint
stock company, company, limited liability company, trust,
unincorporated organization or government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Property Trustee" means the Person identified as the "Property
Trustee" in the preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Issuer Trust
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formed and continued hereunder and not in its individual capacity, or
its successor in interest in such capacity, or any successor property
trustee appointed as herein provided.
"Quotation Agent" means Morgan Stanley & Co. Incorporated and
its successors; provided, however, that if the foregoing shall cease
to be a primary U.S. Government securities dealer in New York City (a
"Primary Treasury Dealer"), the Depositor shall substitute therefor
another Primary Treasury Dealer.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, the date fixed for such redemption by or pursuant to
this Trust Agreement; provided that each Junior Subordinated
Debenture Redemption Date and the stated maturity of the Junior
Subordinated Debentures shall be a Redemption Date for a Like Amount
of Trust Securities, including but not limited to any date of
redemption pursuant to the occurrence of any Special Event.
"Redemption Price" means:
(a) in the case of a redemption, other than as provided in
paragraph (b) below, the following prices expressed in percentages of
the Liquidation Amount, together with accumulated Distributions to
but excluding the date fixed for redemption, if redeemed during the
12-month period beginning June 1:
Year Redemption Price
---- ----------------
2007.............................. 104.139%
2008.............................. 103.725
2009.............................. 103.311
2010.............................. 102.897
2011.............................. 102.483
2012.............................. 102.069
2013.............................. 101.655
2014.............................. 101.242
2015.............................. 100.828
2016.............................. 100.414
and 100% on or after June 1, 2017.
(b) in the case of a redemption prior to June 1, 2007 following
a Tax Event, Investment Company Event or Capital Treatment Event, an
amount equal to for each Capital Security the Make-Whole Amount for a
corresponding $1,000 principal amount of Junior Subordinated
Debentures together with accumulated Distributions to but excluding
the date fixed for redemption. The "Make-Whole Amount" will be equal
to the greater of (i) 100% of the principal amount of such Junior
Subordinated Debentures, and (ii) as determined by a Quotation
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Agent, the sum of the present value of 100% of the principal amount
that would be payable with respect to such Junior Subordinated
Debentures on June 1, 2027, together with the present values of
scheduled payments of interest from the Redemption Date to June 1,
2027 (the "Remaining Life"), in each case discounted to the
Redemption Date on a semiannual basis (assuming a 360-day year
consisting of 30-day months) at the Adjusted Treasury Rate. The
Redemption Price in the case of a redemption on or after June 1, 2007
following a Tax Event, Investment Company Event or Capital Treatment
Event shall mean an amount equal to the Redemption Price then
applicable to a redemption under paragraph (a) above.
"Reference Treasury Dealer" means (i) the Quotation Agent and
(ii) any other Primary Treasury Dealer selected by the Debenture
Trustee after consultation with the Depositor.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average,
as determined by the Debenture Trustee, of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the
Debenture Trustee by such Reference Treasury Dealer at 5:00 p.m., New
York City time, on the third Business Day preceding such Redemption
Date.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer" when used with respect to the Property
Trustee means any officer assigned to the Corporate Trust Office,
including any managing director, vice president, assistant vice
president, assistant treasurer, assistant secretary or any other
officer of the Property Trustee customarily performing functions
similar to those performed by any of the above designated officers
and having direct responsibility for the administration of the
Indenture, and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended,
and any successor statute thereto, in each case as amended from time
to time.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.5.
"Senior Indebtedness" has the meaning specified in the
Indenture.
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"Special Event" means any Tax Event, Capital Treatment Event or
Investment Company Event.
"Successor Capital Securities" of any particular Capital
Securities Certificate means every Capital Securities Certificate
issued after, and evidencing all or a portion of the same beneficial
interest in the Issuer Trust as that evidenced by, such particular
Capital Securities Certificate; and, for the purposes of this
definition, any Capital Securities Certificate executed and delivered
under Section 5.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Capital Securities Certificate shall be
deemed to evidence the same beneficial interest in the Issuer Trust
as the mutilated, destroyed, lost or stolen Capital Securities
Certificate.
"Tax Event" means the receipt by the Issuer Trust of an Opinion
of Counsel experienced in such matters 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 or taxing authority
thereof or therein, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying
such laws or regulations, which amendment or change is effective or
which pronouncement, action or decision is announced on or after the
date of issuance of the Capital Securities, there is more than an
insubstantial risk that (i) the Issuer Trust is, or will be within 90
days of the delivery of such Opinion of Counsel, subject to United
States Federal income tax with respect to income received or accrued
on the Junior Subordinated Debentures, (ii) interest payable by the
Depositor on the Junior Subordinated Debentures is not, or within 90
days of the delivery of such Opinion of Counsel will not be,
deductible by the Depositor, in whole or in part, for United States
federal income tax purposes, or (iii) the Issuer Trust is, or will be
within 90 days of the delivery of such Opinion of Counsel, subject to
more than a de minimis amount of other taxes, duties or other
governmental charges.
"Treasury Rate" means (i) the yield, under the heading which
represents the average for the week immediately prior to the
calculation date, appearing in the most recently published
statistical release designated "H.15(519)" or any successor
publication which is published weekly by the Federal Reserve and
which establishes yields on actively traded United States Treasury
securities adjusted to constant maturity under the caption "Treasury
Constant Maturities," for the maturity corresponding to the Remaining
Life (if no maturity is within three months before or after the
Remaining Life, yields for the two published maturities most closely
corresponding to the Remaining Life shall be determined and the
Treasury Rate shall
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be interpolated or extrapolated from such yields on a straight-line
basis, rounding to the nearest month) or (ii) if such release (or any
successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum
equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such Redemption
Date. The Treasury Rate shall be calculated on the third Business Day
preceding the Redemption Date.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in
accordance with the applicable provisions hereof, including (i) all
Exhibits hereto, and (ii) for all purposes of this Amended and
Restated Trust Agreement any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed
to be a part of and govern this Amended and Restated Trust Agreement
and any modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 or
any successor statute, in each case as amended from time to time.
"Trust Property" means (a) the Junior Subordinated Debentures,
(b) any cash on deposit in, or owing to, the Payment Account, and (c)
all proceeds and rights in respect of the foregoing or any other
property and assets for the time being held or deemed to be held by
the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Capital Securities Certificates.
"Trust Security" means any one of the Common Securities or
the Capital Securities.
"Underwriters" has the meaning specified in the Underwriting
Agreement.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of June 5, 1997, among the Issuer Trust, the Depositor and
the Underwriters, as the same may be amended from time to time.
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ARTICLE II
CONTINUATION OF THE ISSUER TRUST
SECTION 2.1. Name.
The Issuer Trust continued hereby shall be known as "First
Empire Capital Trust II", as such name may be modified from time to
time by the Administrators following written notice to the Holders of
Trust Securities and the Issuer Trustees, in which name the
Administrators and the Issuer Trustees may engage in the transactions
contemplated hereby, make and execute contracts and other instruments
on behalf of the Issuer Trust and sue and be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business.
The address of the Delaware Trustee in the State of Delaware is
Bankers Trust (Delaware), 1001 Jefferson Street, Suite 550,
Wilmington, DE 19801, Attention: Lisa Wilkins, or such other address
in the State of Delaware as the Delaware Trustee may designate by
written notice to the Holders and the Depositor. The principal
executive office of the Issuer Trust is in care of First Empire State
Corporation, One M&T Plaza, Buffalo, New York 14240, Attention:
Office of the Secretary.
SECTION 2.3. Initial Contribution of Trust Property;
Organizational Expenses.
The Property Trustee acknowledges receipt in trust from the
Depositor in connection with this Trust Agreement of the sum of $10,
which constitutes the initial Trust Property. The Depositor shall pay
all organizational expenses of the Issuer Trust as they arise or
shall, upon request of any Issuer Trustee, promptly reimburse such
Issuer Trustee for any such expenses paid by such Issuer Trustee. The
Depositor shall make no claim upon the Trust Property for the payment
of such expenses.
SECTION 2.4. Issuance of the Capital Securities.
On June 5, 1997, the Depositor, both on its own behalf and on
behalf of the Issuer Trust pursuant to the Original Trust Agreement,
executed and delivered the Underwriting Agreement. Contemporaneously
with the execution and delivery of this Trust Agreement, an
Administrator, on behalf of the Issuer Trust, shall manually execute
in accordance with Section 5.3 and the Property Trustee shall
authenticate in accordance with Section 5.3 and deliver to the
Underwriters, Capital Securities Certificates, registered in the
names requested by the
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Underwriters, in an aggregate amount of 100,000 Capital Securities
having an aggregate Liquidation Amount of $100,000,000, against
receipt of the aggregate purchase price of such Capital Securities of
$100,000,000, by the Property Trustee.
SECTION 2.5. Issuance of the Common Securities; Subscription
and Purchase of Junior Subordinated Debentures.
Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrator, on behalf of the Issuer Trust, shall
execute or cause to be executed in accordance with Section 5.2 and
the Property Trustee shall deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an
aggregate amount of 3,093 Common Securities having an aggregate
Liquidation Amount of $3,093,000 against receipt of the aggregate
purchase price of such Common Securities of $3,093,000 by the
Property Trustee. Contemporaneously therewith, an Administrator, on
behalf of the Issuer Trust, shall subscribe for and purchase from the
Depositor the Junior Subordinated Debentures, registered in the name
of the Issuer Trust and having an aggregate principal amount equal to
$103,093,000 and, in satisfaction of the purchase price for such
Junior Subordinated Debentures, the Property Trustee, on behalf of
the Issuer Trust, shall deliver to the Depositor the sum of
$103,093,000 (being the sum of the amounts delivered to the Property
Trustee pursuant to (i) the second sentence of Section 2.4, and (ii)
the first sentence of this Section 2.5) and receive on behalf of the
Issuer Trust the Junior Subordinated Debentures.
SECTION 2.6. Declaration of Trust.
The exclusive purposes and functions of the Issuer Trust are to
(a) issue and sell Trust Securities and use the proceeds from such
sale to acquire the Junior Subordinated Debentures, and (b) engage in
only those other activities necessary or incidental thereto. The
Depositor hereby appoints the Issuer Trustees as trustees of the
Issuer Trust, to have all the rights, powers and duties to the extent
set forth herein, and the Issuer Trustees hereby accept such
appointment. The Property Trustee hereby declares that it will hold
the Trust Property in trust upon and subject to the conditions set
forth herein for the benefit of the Issuer Trust and the Holders. The
Depositor hereby appoints the Administrators, with such
Administrators having all rights, powers and duties set forth herein
with respect to accomplishing the purposes of the Issuer Trust, and
the Administrators hereby accept such appointment, provided, however,
that it is the intent of the parties hereto that such Administrators
shall not be trustees or, to the fullest extent permitted by law,
fiduciaries with respect to the
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Issuer Trust and this Agreement shall be construed in a manner
consistent with such intent. The Property Trustee shall have the
right and power to perform those duties assigned to the
Administrators. The Delaware Trustee shall not be entitled to
exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the
Administrators set forth herein. The Delaware Trustee shall be one of
the trustees of the Issuer Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware Business
Trust Act and for taking such actions as are required to be taken by
a Delaware trustee under the Delaware Business Trust Act.
SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Issuer Trustees and the Administrators shall conduct
the affairs of the Issuer Trust in accordance with the terms of this
Trust Agreement. Subject to the limitations set forth in paragraph
(b) of this Section and in accordance with the following provisions
(i), (ii) and (iii), the Issuer Trustees and the Administrators shall
act as follows:
(i) Each Administrator is authorized, on behalf of the Trust,
to:
(A) comply with the Underwriting Agreement regarding the
issuance and sale of the Trust Securities;
(B) assist in compliance with the Securities Act,
applicable state securities or blue sky laws, and the Trust Indenture
Act;
(C) assist in the listing of the Capital Securities upon
such securities exchange or exchanges as shall be determined by the
Depositor, with the registration of the Capital Securities under the
Exchange Act, if required, and the preparation and filing of all
periodic and other reports and other documents pursuant to the
foregoing;
(D) execute the Trust Securities on behalf of the Issuer
Trust in accordance with this Trust Agreement;
(E) execute and deliver an application for a taxpayer
identification number for the Issuer Trust;
(F) unless otherwise determined by the Property Trustee or
Holders of at least a Majority in Liquidation Amount of the Capital
Securities or as otherwise required by the Delaware Business Trust
Act or the Trust Indenture Act, execute on behalf of the Issuer Trust
any documents that the
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Administrators have the power to execute pursuant to this Trust
Agreement, including without limitation a Junior Subordinated
Debenture Purchase Agreement and a Common Securities Purchase
Agreement, both by and between the Issuer Trust and the Depositor;
and
(G) take any action incidental to the foregoing as
necessary or advisable to give effect to the terms of this Trust
Agreement.
(ii) The Property Trustee shall have the power and authority to
act on behalf of the Issuer Trust with respect to the following
matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debentures;
(C) the receipt and collection of interest, principal and
any other payments made in respect of the Junior Subordinated
Debentures in the Payment Account;
(D) the distribution of amounts owed to the Holders in
respect of the Trust Securities;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Junior Subordinated Debentures;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Junior
Subordinated Debentures to the Holders in accordance with this Trust
Agreement;
(G) the distribution of the Trust Property in accordance
with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Issuer Trust and
the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of Delaware;
and
(I) after an Event of Default (other than under paragraph
(b), (c), (d), or (f) of the definition of such term if such Event of
Default is by or with respect to the Property Trustee), comply with
the provisions of this Trust Agreement and take any action to give
effect to the terms of this Trust Agreement and protect and conserve
the Trust Property for the benefit of the Holders (without
consideration of the effect of any such action on any particular
Holder); and
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provided, however, that nothing in this Section 2.7(a)(ii) shall
require the Property Trustee to take any action that is not otherwise
required in this Trust Agreement.
(b) So long as this Trust Agreement remains in effect, the
Issuer Trust (or the Issuer Trustees or Administrators acting on
behalf of the Issuer Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or
contemplated hereby. In particular, neither the Issuer Trustees nor
the Administrators shall (i) acquire any investments or engage in any
activities not authorized by this Trust Agreement, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set-off or otherwise dispose of
any of the Trust Property or interests therein, including to Holders,
except as expressly provided herein, (iii) take any action that would
reasonably be expected to cause the Issuer Trust to become taxable as
a corporation for United States Federal income tax purposes, (iv)
incur any indebtedness for borrowed money or issue any other debt, or
(v) take or consent to any action that would result in the placement
of a Lien on any of the Trust Property. The Property Trustee shall
defend all claims and demands of all Persons at any time claiming any
Lien on any of the Trust Property adverse to the interest of the
Issuer Trust or the Holders in their capacity as Holders.
(c) In connection with the issue and sale of the Capital
Securities, the Depositor shall have the right and responsibility to
assist the Issuer Trust with respect to, or effect on behalf of the
Issuer Trust, the following (and any actions taken by the Depositor
in furtherance of the following prior to the date of this Trust
Agreement are hereby ratified and confirmed in all respects):
(i) the preparation by the Issuer Trust of a registration
statement, and a prospectus in relation to the Capital Securities,
including any amendments thereto and the taking of any action
necessary or desirable to sell the Capital Securities in a
transaction or a series of transactions not exempt from the
registration requirements of the Securities Act;
(ii) the determination of the States in which to take
appropriate action to qualify or register for sale all or part of the
Capital Securities and the determination of any and all such acts,
other than actions that must be taken by or on behalf of the Issuer
Trust, and the advice to the Issuer Trustees of actions they must
take on behalf of the Issuer Trust, and the preparation for execution
and filing of any documents to be executed and filed by the Issuer
Trust or on behalf of the Issuer Trust, as the Depositor deems
necessary or advisable in
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order to comply with the applicable laws of any such States in
connection with the sale of the Capital Securities;
(iii) the negotiation of the terms of, and the execution
and delivery of, the Underwriting Agreement providing for the sale of
the Capital Securities;
(iv) compliance with the listing requirements of the
Capital Securities upon such securities exchange or exchanges as
shall be determined by the Depositor, the registration of the Capital
Securities under the Exchange Act, if required, and the preparation
and filing of all periodic and other reports and other documents
pursuant to the foregoing; and
(v) the taking of any other actions necessary or desirable
to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrators and the Property Trustee are authorized and directed
to conduct the affairs of the Issuer Trust and to operate the Issuer
Trust so that the Issuer Trust will not be deemed to be an
"investment company" required to be registered under the Investment
Company Act, and will not be taxable as a corporation for the United
States Federal income tax purposes and so that the Junior
Subordinated Debentures will be treated as indebtedness of the
Depositor for United States income tax purposes. In this connection,
the Property Trustee and the Holders of Common Securities are
authorized to take any action, not inconsistent with applicable law,
the Certificate of Trust or this Trust Agreement, that the Property
Trustee and Holders of Common Securities determine in their
discretion to be necessary or desirable for such purposes, as long as
such action does not adversely affect in any material respect the
interests of the holders of the Outstanding Capital Securities. In no
event shall the Administrators or the Issuer Trustees be liable to
the Issuer Trust or the Holders for any failure to comply with this
section that results from a change in law or regulations or in the
interpretation thereof.
SECTION 2.8. Assets of Trust.
The assets of the Issuer Trust shall consist solely of the
Trust Property.
SECTION 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times
in the Property Trustee (in its capacity as such) and shall be held
and administered by the Property Trustee for the benefit of the
Issuer Trust and the Holders in accordance with this Trust Agreement.
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ARTICLE III
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and its agents
shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in
and withdrawals from the Payment Account in accordance with this
Trust Agreement. All monies and other property deposited or held from
time to time in the Payment Account shall be held by the Property
Trustee in the Payment Account for the exclusive benefit of the
Holders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on,
and any other payments or proceeds with respect to, the Junior
Subordinated Debentures. Amounts held in the Payment Account shall
not be invested by the Property Trustee pending distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial
interests in the Trust Property, and Distributions (including of
Additional Amounts) will be made on the Trust Securities at the rate
and on the dates that payments of interest (including of Additional
Interest, as defined in the Indenture) are made on the Junior
Subordinated Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be
cumulative and will accumulate whether or not there are funds
of the Issuer Trust available for the payment of Distributions.
Distributions shall accumulate from June 6, 1997, and, except
in the event (and to the extent) that the Depositor exercises
its right to defer the payment of interest on the Debentures
pursuant to the Indenture, shall be payable semiannually in
arrears on June 1 and December 1 of each year, commencing on
December 1, 1997. If any date on which a
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Distribution is otherwise payable on the Trust Securities is
not a Business Day, then the payment of such Distribution shall
be made on the next succeeding day that is a Business Day
(without any interest or other payment in respect of any such
delay), with the same force and effect as if made on the date
on which such payment was originally payable (each date on
which distributions are payable in accordance with this Section
4.1(a), a "Distribution Date").
(ii) The Trust Securities shall be entitled to
Distributions payable at a rate of 8.277% per annum of the
Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any period less than a full
Distribution period shall be computed on the basis of a 360-day
year of twelve 30-day months and the actual number of days
elapsed in a partial month in a period. Distributions payable
for each full Distribution period will be computed by dividing
the rate per annum by two. The amount of Distributions payable
for any period shall include any Additional Amounts in respect
of such period.
(iii) So long as no Debenture Event of Default has
occurred and is continuing, the Depositor has the right under
the Indenture to defer the payment of interest on the Junior
Subordinated Debentures at any time and from time to time for a
period not exceeding 10 consecutive semiannual periods (an
"Extension Period"), provided that no Extension Period may
extend beyond June 1, 2027. As a consequence of any such
deferral, semiannual Distributions on the Trust Securities by
the Trust will also be deferred (and the amount of
Distributions to which Holders of the Trust Securities are
entitled will accumulate additional Distributions thereon at
the rate per annum of 8.277% per annum, compounded
semiannually) from the relevant payment date for such
Distributions, computed on the basis of a 360-day year of
twelve 30-day months and the actual days elapsed in a partial
month in such period. Additional Distributions payable for each
full Distribution period will be computed by dividing the rate
per annum by two (2). The term "Distributions" as used in
Section 4.1
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shall include any such additional Distributions provided
pursuant to this Section 4.1(a)(iii).
(iv) Distributions on the Trust Securities shall be made
by the Property Trustee from the Payment Account and shall be
payable on each Distribution Date only to the extent that the
Issuer Trust has funds then on hand and available in the
Payment Account for the payment of such Distributions.
(b) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they
appear on the Securities Register for the Trust Securities at the
close of business on the relevant record date, which shall be at the
close of business on the 15th day of May and November, whether or not
a Business Day).
SECTION 4.2. Redemption.
(a) On each Junior Subordinated Debenture Redemption Date and
on the stated maturity of the Junior Subordinated Debentures, the
Issuer Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee
by first-class mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the Redemption Date to each Holder of
Trust Securities to be redeemed, at such Holder's address appearing
in the Security Register. All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price, or if the Redemption Price
cannot be calculated prior to the time the notice is required to be
sent, the estimate of the Redemption Price provided pursuant to the
Indenture together with a statement that it is an estimate and that
the actual Redemption Price will be calculated on the third Business
Day prior to the Redemption Date (and if an estimate is provided, a
further notice shall be sent of the actual Redemption Price on the
date, or as soon as practicable thereafter, that notice of such
actual Redemption Price is received pursuant to the Indenture);
(iii) the CUSIP number or CUSIP numbers of the Capital
Securities affected;
(iv) if less than all the Outstanding Trust Securities are
to be redeemed, the identification and the total
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Liquidation Amount of the particular Trust Securities to be redeemed;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed
and that Distributions thereon will cease to accumulate on and after
said date, except as provided in Section 4.2(d) below; and
(vi) the place or places where Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities shall use
"CUSIP" numbers, and the Property Trustee shall indicate the "CUSIP"
numbers of the Trust Securities in notices of redemption and related
materials as a convenience to 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 Trust Securities or as
contained in any notice of redemption and related material.
(c) The Trust Securities redeemed on each Redemption Date shall
be redeemed at the Redemption Price with the applicable proceeds from
the contemporaneous redemption of Junior Subordinated Debentures.
Redemptions of the Trust Securities shall be made and the Redemption
Price shall be payable on each Redemption Date only to the extent
that the Issuer Trust has funds then on hand and available in the
Payment Account for the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Capital Securities, then, by 12:00 noon, New York City
time, on the Redemption Date, subject to Section 4.2(c), the Property
Trustee will, with respect to Capital Securities held in global form,
irrevocably deposit with the Clearing Agency for such Capital
Securities, to the extent available therefor, funds sufficient to pay
the applicable Redemption Price and will give such Clearing Agency
irrevocable instructions and authority to pay the Redemption Price to
the Holders of the Capital Securities. With respect to Capital
Securities that are not held in global form, the Property Trustee,
subject to Section 4.2(c), will irrevocably deposit with the Paying
Agent, to the extent available therefor, funds sufficient to pay the
applicable Redemption Price and will give the Paying Agent
irrevocable instructions and authority to pay the Redemption Price to
the Holder of the Capital Securities upon surrender of their Capital
Securities Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust Securities
called for redemption shall be payable to the Holders of such Trust
Securities as they appear on the Register for the Trust
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Securities on the relevant record dates for the related Distribution
Dates. If notice of redemption shall have been given and funds
deposited as required, then, upon the date of such deposit, all
rights of Holders holding Trust Securities so called for redemption
will cease, except the right of such Holders to receive the
Redemption Price and any Distribution payable in respect of the Trust
Securities on or prior to the Redemption Date, but without interest,
and such Securities will cease to be Outstanding. In the event that
any date on which any applicable Redemption Price is payable is not a
Business Day, then payment of the applicable Redemption Price payable
on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day falls in the next
calendar year, such payment will be made on the immediately preceding
Business Day, in each case, with the same force and effect as if made
on such date. In the event that payment of the Redemption Price in
respect of any Trust Securities called for redemption is improperly
withheld or refused and not paid either by the Issuer Trust or by the
Depositor pursuant to the Guarantee Agreement, Distributions on such
Trust Securities will continue to accumulate, as set forth in Section
4.1, from the Redemption Date originally established by the Issuer
Trust for such Trust Securities to the date such applicable
Redemption Price is actually paid, in which case the actual payment
date will be the date fixed for redemption for purposes of
calculating the applicable Redemption Price.
(e) Subject to Section 4.3(a), if less than all the Outstanding
Trust Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of such Trust Securities to be redeemed
shall be allocated pro rata to the Common Securities and the Capital
Securities based on the relative Liquidation Amounts of such classes.
The particular Capital Securities to be redeemed shall be selected on
a pro rata basis based on their respective Liquidation Amounts not
more than 60 days prior to the Redemption Date by the Property
Trustee from the Outstanding Capital Securities not previously called
for redemption, or if the Capital Securities are then held in the
form of a Global Capital Security in accordance with the customary
procedures for the Clearing Agency. The Property Trustee shall
promptly notify the Securities Registrar in writing of the Capital
Securities selected for redemption and, in the case of any Capital
Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement,
unless the context otherwise requires, all provisions relating to the
redemption of Capital Securities shall relate, in the case of any
Capital Securities redeemed or to be redeemed only in part, to the
portion of the aggregate Liquidation Amount of Capital Securities
that has been or is to be redeemed.
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SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, the Redemption Price of, and the Liquidation
Distribution in respect of, the Trust Securities, as applicable,
shall be made, subject to Section 4.2(e), pro rata among the Common
Securities and the Capital Securities based on the Liquidation Amount
of such Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date any Event of Default resulting
from a Debenture Event of Default in Section 5.1(1) or 5.1(2) of the
Indenture shall have occurred and be continuing, no payment of any
Distribution (including any Additional Amounts) on, Redemption Price
of, or Liquidation Distribution in respect of, any Common Security,
and no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless payment
in full in cash of all accumulated and unpaid Distributions
(including any Additional Amounts) on all Outstanding Capital
Securities for all Distribution periods terminating on or prior
thereto, or, in the case of payment of the Redemption Price, the full
amount of such Redemption Price on all Outstanding Capital Securities
then called for redemption, or in the case of payment of the
Liquidation Distribution the full amount of such Liquidation
Distribution on all Outstanding Capital Securities, shall have been
made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in
cash of all Distributions (including any Additional Amounts) on, or
the Redemption Price of, Capital Securities then due and payable. The
existence of an Event of Default does not entitle the Holders of
Capital Securities to accelerate the maturity thereof.
(b) In the case of the occurrence of any Event of Default
resulting from any Debenture Event of Default, the Holder of the
Common Securities shall have no right to act with respect to any such
Event of Default under this Trust Agreement until the effects of all
such Events of Default with respect to the Capital Securities have
been cured, waived or otherwise eliminated. Until all such Events of
Default under this Trust Agreement with respect to the Capital
Securities have been so cured, waived or otherwise eliminated, the
Property Trustee shall act solely on behalf of the Holders of the
Capital Securities and not on behalf of the Holder of the Common
Securities, and only the Holders of the Capital Securities will have
the right to direct the Property Trustee to act on their behalf.
SECTION 4.4. Payment Procedures.
Payments of Distributions (including any Additional
Amounts) in respect of the Capital Securities shall be made by
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check mailed to the address of the Person entitled thereto as such
address shall appear on the Securities Register or, if the Capital
Securities are held by a Clearing Agency, such Distributions shall be
made to the Clearing Agency in immediately available funds, which
will credit the relevant accounts on the applicable Distribution
Dates. Payments of Distributions to Holders of $1,000,000 or more in
aggregate Liquidation Amount of Capital Securities may be made by
wire transfer of immediately available funds upon written request of
such Holder to the Securities Registrar not later than 15 calendar
days prior to the date on which the Distribution is payable. Payments
in respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the Holder
of the Common Securities.
SECTION 4.5. Tax Returns and Reports.
The Administrators shall prepare (or cause to be prepared), at
the Depositor's expense, and file all United States Federal, state
and local tax and information returns and reports required to be
filed by or in respect of the Issuer Trust. In this regard, the
Administrators shall (a) prepare and file (or cause to be prepared
and filed) all Internal Revenue Service forms required to be filed in
respect of the Issuer Trust in each taxable year of the Issuer Trust
and (b) prepare and furnish (or cause to be prepared and furnished)
to each Holder all Internal Revenue Service forms required to be
provided by the Issuer Trust. The Administrators shall provide the
Depositor and the Property Trustee with a copy of all such returns
and reports promptly after such filing or furnishing. The Issuer
Trustees shall comply with United States Federal withholding and
backup withholding tax laws and information reporting requirements
with respect to any payments to Holders under the Trust Securities.
On or before December 15 of each year during which any Capital
Securities are outstanding, the Administrators shall furnish to the
Paying Agent such information as may be reasonably requested by the
Property Trustee in order that the Property Trustee may prepare the
information which it is required to report for such year on Internal
Revenue Service Forms 1096 and 1099 pursuant to Section 6049 of the
Internal Revenue Code of 1986, as amended. Such information shall
include the amount of original issue discount includible in income
for each outstanding Capital Security during such year.
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Issuer
Trust.
Upon receipt under the Junior Subordinated Debentures of
Additional Sums, the Property Trustee shall promptly pay any
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taxes, duties or governmental charges of whatsoever nature (other
than withholding taxes) imposed on the Issuer Trust by the United
States or any other taxing authority.
SECTION 4.7. Payments under Indenture or Pursuant to
Direct Actions.
Any amount payable hereunder to any Holder of Capital
Securities shall be reduced by the amount of any corresponding
payment such Holder has directly received pursuant to Section 5.8 of
the Indenture or Section 5.13 of this Trust Agreement.
SECTION 4.8. Liability of the Holder of Common Securities.
The Holder of Common Securities shall be liable for the debts
and obligations of the Issuer Trust as set forth in Section 6.7 of
the Indenture regarding allocation of expenses.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the formation of the Issuer Trust and the contribution by
the Depositor pursuant to Section 2.3 and until the issuance of the
Trust Securities, and at any time during which no Trust Securities
are outstanding, the Depositor shall be the sole beneficial owner of
the Issuer Trust.
SECTION 5.2. The Trust Securities Certificates.
(a) The Trust Securities Certificates shall be issued in
multiples of $1,000 and shall be executed on behalf of the Issuer
Trust by manual or facsimile signature of at least one Administrator.
Trust Securities Certificates bearing the manual signatures of
individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Issuer Trust, shall
be validly issued and entitled to the benefits of this Trust
Agreement, notwithstanding that such individuals or any of them shall
have ceased to be so authorized prior to the delivery of such Trust
Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. A transferee of a
Trust Securities Certificate shall become a Holder, and shall be
entitled to the rights and subject to the obligations of a Holder
hereunder, upon due registration of such Trust Securities Certificate
in such transferee's name pursuant to Section 5.5.
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(b) Upon their original issuance, Capital Securities
Certificates shall be issued in the form of one or more fully
registered Global Capital Securities Certificates which will be
deposited with or on behalf of the Depositary and registered in the
name of the Depositary's nominee. Unless and until it is exchangeable
in whole or in part for the Capital Securities in definitive form, a
global security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or
by the Depositary or any such nominee to a successor of such
Depositary or a nominee of such successor.
(c) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a
definitive Common Securities Certificate.
SECTION 5.3. Execution and Delivery of Trust Securities
Certificates.
At the Closing Date, the Administrators shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as
provided in Sections 2.4 and 2.5, to be executed on behalf of the
Issuer Trust and delivered to the Property Trustee and upon such
delivery the Property Trustee shall authenticate such Trust
Securities Certificates and deliver such Trust Securities
Certificates upon the written order of the Depositor, executed by two
authorized officers thereof, without further corporate action by the
Depositor, in authorized denominations.
SECTION 5.4. Global Capital Security.
(a) Any Global Capital Security issued under this Trust
Agreement shall be registered in the name of the nominee of the
Clearing Agency and delivered to such custodian therefor, and such
Global Capital Security shall constitute a single Capital Security
for all purposes of this Trust Agreement.
(b) Notwithstanding any other provision in this Trust
Agreement, a Global Capital Security may not be exchanged in whole or
in part for Capital Securities registered, and no transfer of the
Global Capital Security in whole or in part may be registered, in the
name of any Person other than the Clearing Agency for such Global
Capital Security, or its nominee thereof unless (i) such Clearing
Agency advises the Property Trustee in writing that such Clearing
Agency is no longer willing or able to properly discharge its
responsibilities as Clearing Agency with respect to such Global
Capital Security, and the Depositor is unable to locate a qualified
successor, (ii) the Issuer Trust at its option advises the Depositary
in writing that it elects to terminate the book-entry system through
the Clearing Agency,
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or (iii) there shall have occurred and be continuing an Event of
Default.
(c) If a Capital Security is to be exchanged in whole or in
part for a beneficial interest in a Global Capital Security, then
either (i) such Global Capital Security shall be so surrendered for
exchange or cancellation as provided in this Article V or (ii) the
Liquidation Amount thereof shall be reduced or increased by an amount
equal to the portion thereof to be so exchanged or cancelled or equal
to the Liquidation Amount of such other Capital Security to be so
exchanged for a beneficial interest therein, as the case may be, by
means of an appropriate adjustment made on the records of the
Security Registrar, whereupon the Property Trustee, in accordance
with the Applicable Procedures, shall instruct the Clearing Agency or
its authorized representative to make a corresponding adjustment to
its records. Upon any such surrender or adjustment of a Global
Capital Security by the Clearing Agency, accompanied by registration
instructions, the Property Trustee shall, subject to Section 5.4(b)
and as otherwise provided in this Article V, authenticate and deliver
any Capital Securities issuable in exchange for such Global Capital
Security (or any portion thereof) in accordance with the instructions
of the Clearing Agency. The Property Trustee shall not be liable for
any delay in delivery of such instructions and may conclusively rely
on, and shall be fully protected in relying on, such instructions.
(d) Every Capital Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a
Global Capital Security or any portion thereof, whether pursuant to
this Article V or Article IV or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Capital Security,
unless such Global Capital Security is registered in the name of a
Person other than the Clearing Agency for such Global Capital
Security or a nominee thereof.
(e) The Clearing Agency or its nominee, as the registered owner
of a Global Capital Security, shall be considered the Holder of the
Capital Securities represented by such Global Capital Security for
all purposes under this Trust Agreement and the Capital Securities,
and owners of beneficial interests in such Global Capital Security
shall hold such interests pursuant to the Applicable Procedures and,
except as otherwise provided herein, shall not be entitled to receive
physical delivery of any such Capital Securities in definitive form
and shall not be considered the Holders thereof under this Trust
Agreement. Accordingly, any such owner's beneficial interest in the
Global Capital Security shall be shown only on, and the transfer of
such interest shall be effected only through, records maintained by
the Clearing Agency or its nominee. Neither the Property
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Trustee nor the Securities Registrar shall have any liability in
respect of any transfers effected by the Clearing Agency.
(f) The rights of owners of beneficial interests in a Global
Capital Security shall be exercised only through the Clearing Agency
and shall be limited to those established by law and agreements
between such owners and the Clearing Agency.
SECTION 5.5. Registration of Transfer and Exchange Generally;
Certain Transfers and Exchanges; Capital Securities Certificates.
(a) The Property Trustee shall keep or cause to be kept at its
Corporate Trust Office a register or registers for the purpose of
registering Capital Securities Certificates and transfers and
exchanges of Capital Securities Certificates in which the registrar
and transfer agent with respect to the Capital Securities (the
"Securities Registrar"), subject to such reasonable regulations as it
may prescribe, shall provide for the registration of Capital
Securities Certificates and Common Securities Certificates (subject
to Section 5.11 in the case of Common Securities Certificates) and
registration of transfers and exchanges of Capital Securities
Certificates as herein provided. Such register is herein sometimes
referred to as the "Securities Register." The Property Trustee is
hereby appointed "Securities Registrar" for the purpose of
registering Capital Securities and transfers of Capital Securities as
herein provided.
Upon surrender for registration of transfer of any Capital
Security at the offices or agencies of the Property Trustee
designated for that purpose the Depositor shall execute, and
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Capital Securities of the same series of
any authorized denominations of like tenor and aggregate principal
amount and bearing such legends as may be required by this Trust
Agreement.
At the option of the Holder, Capital Securities may be
exchanged for other Capital Securities of any authorized
denominations, of like tenor and aggregate Liquidation Amount and
bearing such legends as may be required by this Trust Agreement, upon
surrender of the Capital Securities to be exchanged as such office or
agency. Whenever any securities are so surrendered for exchange, the
Property Trustee shall execute and authenticate and deliver the
Capital Securities that the Holder making the exchange is entitled to
receive.
All Capital Securities issued upon any transfer or exchange of
Capital Securities shall be the valid obligations of the Issuer
Trust, evidencing the same debt, and entitled to the
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same benefits under this Trust Agreement, as the Capital Securities
surrendered upon such transfer or exchange.
Every Capital Security presented or surrendered for transfer or
exchange shall (if so required by the Property Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Property Trustee and the Securities
Registrar, duly executed by the Holder thereof or such Holder's
attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or
exchange of Capital Securities, but the Property Trustee may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or
exchange of Capital Securities.
Neither the Issuer Trust nor the Property Trustee shall be
required, pursuant to the provisions of this Section, (i) to issue,
register the transfer of or exchange any Capital Security during a
period beginning at the opening of business 15 days before the day of
selection for redemption of Capital Securities pursuant to Article IV
and ending at the close of business on the day of mailing of the
notice of redemption, or (ii) to register the transfer of or exchange
any Capital Security so selected for redemption in whole or in part,
except, in the case of any such Capital Security to be redeemed in
part, any portion thereof not to be redeemed.
(b) Certain Transfers and Exchanges. Trust Securities may only
be transferred, in whole or in part, in accordance with the terms and
conditions set forth in this Trust Agreement. Any transfer or
purported transfer of any Trust Security not made in accordance with
this Trust Agreement shall be null and void.
(i) Non Global Security to Non Global Security. A Trust
Security that is not a Global Capital Security may be
transferred, in whole or in part, to a Person who takes
delivery in the form of another Trust Security that is not a
Global Security as provided in Section 5.5(a).
(ii) Free Transferability. Subject to this Section
5.5, Capital Securities shall be freely transferable.
(iii) Exchanges Between Global Capital Security and
Non-Global Capital Security. A beneficial interest in a Global
Capital Security may be exchanged for a Capital Security that
is not a Global Capital Security as provided in Section 5.4.
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SECTION 5.6. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates.
If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities
Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Trust Securities Certificate and
(b) there shall be delivered to the Securities Registrar and the
Administrators such security or indemnity as may be required by them
to save each of them harmless, then in the absence of notice that
such Trust Securities Certificate shall have been acquired by a bona
fide purchaser, the Administrators, or any one of them, on behalf of
the Issuer Trust shall execute and make available for delivery, and
the Property Trustee shall authenticate, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class, tenor
and denomination. In connection with the issuance of any new Trust
Securities Certificate under this Section, the Administrators or the
Securities Registrar may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Trust Securities Certificate
issued pursuant to this Section shall constitute conclusive evidence
of an undivided beneficial interest in the assets of the Issuer Trust
corresponding to that evidenced by the lost, stolen or destroyed
Trust Certificate, as if originally issued, whether or not the lost,
stolen or destroyed Trust Securities Certificate shall be found at
any time.
SECTION 5.7. Persons Deemed Holders.
The Issuer Trustees or the Securities Registrar shall treat the
Person in whose name any Trust Securities are issued as the owner of
such Trust Securities for the purpose of receiving Distributions and
for all other purposes whatsoever, and none of the Issuer Trustees,
the Administrators nor the Securities Registrar shall be bound by any
notice to the contrary.
SECTION 5.8. Access to List of Holders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not
to hold the Depositor, the Property Trustee, or the Administrators
accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
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SECTION 5.9. Maintenance of Office or Agency.
The Property Trustee shall designate, with the consent of the
Administrators, which consent shall not be unreasonably withheld, an
office or offices or agency or agencies where Capital Securities
Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Issuer Trustees
in respect of the Trust Securities Certificates may be served. The
Property Trustee initially designates its Corporate Trust Office at
Four Albany Street, New York, NY 10006, Attention: Corporate Trust
and Agency Group - Corporate Market Services, as its corporate trust
office for such purposes. The Property Trustee shall give prompt
written notice to the Depositor, the Administrators and to the
Holders of any change in the location of the Securities Register or
any such office or agency.
SECTION 5.10. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Holders from the
Payment Account and shall report the amounts of such Distributions to
the Property Trustee and the Administrators. Any Paying Agent shall
have the revocable power to withdraw funds from the Payment Account
solely for the purpose of making the Distributions referred to above.
The Property Trustee may revoke such power and remove any Paying
Agent in its sole discretion. The Paying Agent shall initially be the
Property Trustee. Any Person acting as Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to
the Administrators, and the Property Trustee. In the event that the
Property Trustee shall no longer be the Paying Agent or a successor
Paying Agent shall resign or its authority to act be revoked, the
Property Trustee shall appoint a successor (which shall be a bank or
trust company) that is reasonably acceptable to the Administrators to
act as Paying Agent. Such successor Paying Agent or any additional
Paying Agent appointed by the Administrators shall execute and
deliver to the Issuer Trustees an instrument in which such successor
Paying Agent or additional Paying Agent shall agree with the Issuer
Trustees that as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it for
payment to the Holders in trust for the benefit of the Holders
entitled thereto until such sums shall be paid to such Holders. The
Paying Agent shall return all unclaimed funds to the Property Trustee
and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Property Trustee. The
provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the
Bank also in its role as Paying Agent, for so long as the Bank shall
act as Paying Agent and, to the extent applicable, to any other
paying agent appointed hereunder. Any reference in this Trust
Agreement to the Paying Agent shall include any
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co-paying agent chosen by the Property Trustee unless the
context requires otherwise.
SECTION 5.11. Ownership of Common Securities by Depositor.
At the Closing Date, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities. Neither the
Depositor nor any successor Holder of the Common Securities may
transfer less than all the Common Securities, and the Depositor or
any such successor Holder may transfer the Common Securities only (i)
in connection with a consolidation or merger of the Depositor into
another corporation or any conveyance, transfer or lease by the
Depositor of its properties and assets substantially as an entirety
to any Person, pursuant to Section 8.1 of the Indenture, or (ii) to
an Affiliate of the Depositor in compliance with applicable law
(including the Securities Act and applicable state securities and
blue sky laws). To the fullest extent permitted by law, any attempted
transfer of the Common Securities, other than as set forth in the
immediately preceding sentence, shall be void. The Administrators
shall cause each Common Securities Certificate issued to the
Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR
IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST
AGREEMENT."
SECTION 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the
Holders is required under this Trust Agreement, for so long as
Capital Securities are represented by a Global Capital Securities
Certificate, the Administrators and the Issuer Trustees shall give
all such notices and communications specified herein to be given to
the Clearing Agency, and shall have no obligations to the Owners.
SECTION 5.13. Rights of Holders.
(a) The legal title to the Trust Property is vested exclusively
in the Property Trustee (in its capacity as such) in accordance with
Section 2.9, and the Holders shall not have any right or title
therein other than the undivided beneficial ownership interest in the
assets of the Issuer Trust conferred by their Trust Securities and
they shall have no right to call for any partition or division of
property, profits or rights of the Issuer Trust except as described
below. The Trust Securities shall be personal property giving only
the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or similar
rights and when issued and delivered to Holders against payment of
the purchase price therefor, as provided herein, will be fully paid
- 36 -
and nonassessable by the Issuer Trust. Except as otherwise provided
in Section 4.8, the Holders of the Trust Securities, in their
capacities as such, shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations
for profit organized under the General Corporation Law of the State
of Delaware.
(b) For so long as any Capital Securities remain Outstanding,
if, upon a Debenture Event of Default, the Debenture Trustee fails or
the holders of not less than 25% in principal amount of the
outstanding Junior Subordinated Debentures fail to declare the
principal of all of the Junior Subordinated Debentures to be
immediately due and payable, the Holders of at least 25% in
Liquidation Amount of the Capital Securities then Outstanding shall
have such right to make such declaration by a notice in writing to
the Property Trustee, the Depositor and the Debenture Trustee.
At any time after such a declaration of acceleration with
respect to the Junior Subordinated Debentures has been made and
before a judgment or decree for payment of the money due has been
obtained by the Debenture Trustee as provided in the Indenture, the
Holders of a Majority in Liquidation Amount of the Capital
Securities, by written notice to the Property Trustee, the Depositor
and the Debenture Trustee, may rescind and annul such declaration and
its consequences if:
(i) the Depositor has paid or deposited with the
Debenture Trustee a sum sufficient to pay
(A) all overdue installments of interest on all
of the Junior Subordinated Debentures,
(B) any accrued Additional Interest on all of
the Junior Subordinated Debentures,
(C) the principal of (and premium, if any, on) any
Junior Subordinated Debentures which have become due
otherwise than by such declaration of acceleration and
interest and Additional Interest thereon at the rate borne
by the Junior Subordinated Debentures, and
(D) all sums paid or advanced by the Debenture
Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of the
Debenture Trustee and the Property Trustee, their agents
and counsel; and
(ii) all Events of Default with respect to the Junior
Subordinated Debentures, other than the non-payment
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of the principal of the Junior Subordinated Debentures
which has become due solely by such acceleration, have
been cured or waived as provided in Section 5.13 of the
Indenture.
If the Property Trustee fails to annul any such declaration and
waive such default, the Holders of at least a Majority in Liquidation
Amount of the Capital Securities shall also have the right to rescind
and annul such declaration and its consequences by written notice to
the Depositor, the Property Trustee and the Debenture Trustee,
subject to the satisfaction of the conditions set forth in Clause (i)
and (ii) of this Section 5.13.
The Holders of at least a Majority in Liquidation Amount of the
Capital Securities may, on behalf of the Holders of all the Capital
Securities, waive any past default under the Indenture, except a
default in the payment of principal or interest (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 Debenture Trustee) or a default in respect of a
covenant or provision which under the Indenture cannot be modified or
amended without the consent of the holder of each outstanding Junior
Subordinated Debentures. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice
declaring such an acceleration, or rescission and annulment thereof,
by Holders of the Capital Securities all or part of which is
represented by Global Capital Securities, a record date shall be
established for determining Holders of Outstanding Capital Securities
entitled to join in such notice, which record date shall be at the
close of business on the day the Property Trustee receives such
notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record
date; provided, that, unless such declaration of acceleration, or
rescission and annulment, as the case may be, shall have become
effective by virtue of the requisite percentage having joined in such
notice prior to the day which is 90 days after such record date, such
notice of declaration of acceleration, or rescission and annulment,
as the case may be, shall automatically and without further action by
any Holder be canceled and of no further effect. Nothing in this
paragraph shall prevent a Holder, or a proxy of a Holder, from
giving, after expiration of such 90-day period, a new written notice
of declaration of acceleration, or rescission and annulment thereof,
as the case may be, that is identical to a written notice which has
been canceled pursuant to the proviso
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to the preceding sentence, in which event a new record date shall be
established pursuant to the provisions of this Section 5.13(b).
(c) For so long as any Capital Securities remain Outstanding,
to the fullest extent permitted by law and subject to the terms of
this Trust Agreement and the Indenture, upon a Debenture Event of
Default specified in Section 5.1(1) or 5.1(2) of the Indenture, any
Holder of Capital Securities shall have the right to institute a
proceeding directly against the Depositor, pursuant to Section 5.9 of
the Indenture, for enforcement of payment to such Holder of the
principal amount of or interest on Junior Subordinated Debentures
having an aggregate principal amount equal to the aggregate
Liquidation Amount of the Capital Securities of such Holder (a
"Direct Action"). Except as set forth in Sections 5.13(b) and 5.13
(c), the Holders of Capital Securities shall have no right to
exercise directly any right or remedy available to the holders of, or
in respect of, the Junior Subordinated Debentures.
ARTICLE VI
ACTS OF HOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Holder's Voting Rights.
(a) Except as provided in this Trust Agreement and in the
Indenture and as otherwise required by law, no Holder of Capital
Securities shall have any right to vote or in any manner otherwise
control the administration, operation and management of the Issuer
Trust or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Trust Securities
Certificates be construed so as to constitute the Holders from time
to time as members of an association.
(b) So long as any Junior Subordinated Debentures are held by
the Property Trustee on behalf of the Issuer Trust, the Property
Trustee shall not (i) direct the time, method and place of conducting
any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on the Property Trustee with
respect to such Junior Subordinated Debentures, (ii) waive any past
default that may be waived under Section 5.13 of the Indenture, (iii)
exercise any right to rescind or annul a declaration that the
principal of all the Junior Subordinated Debentures shall be due and
payable or (iv) consent to any amendment, modification or termination
of the Indenture or the Junior Subordinated Debentures, where such
consent shall be required, without, in each case, obtaining the prior
approval of the Holders of at least a Majority in
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Liquidation Amount of the Capital Securities, provided, however, that
where a consent under the Indenture would require the consent of each
Holder of Junior Subordinated Debentures affected thereby, no such
consent shall be given by the Property Trustee without the prior
written consent of each Holder of Capital Securities. The Property
Trustee shall not revoke any action previously authorized or approved
by a vote of the Holders of Capital Securities, except by a
subsequent vote of the Holders of Capital Securities. The Property
Trustee shall notify all Holders of the Capital Securities of any
notice of default received with respect to the Junior Subordinated
Debentures. In addition to obtaining the foregoing approvals of the
Holders of the Capital Securities, prior to taking any of the
foregoing actions, the Issuer Trustees shall, at the expense of the
Depositor, obtain an Opinion of Counsel experienced in such matters
to the effect that such action will not cause the Issuer Trust to be
taxable as a corporation for United States Federal income tax
purposes.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Issuer Trust otherwise proposes to effect, (i) any action
that would adversely affect in any material respect the interests,
powers, preferences or special rights of the Capital Securities,
whether by way of amendment to the Trust Agreement or otherwise, or
(ii) the dissolution, winding-up or termination of the Issuer Trust,
other than pursuant to the terms of this Trust Agreement, then the
Holders of Outstanding Trust Securities as a class will be entitled
to vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of the Holders of at
least a Majority in Liquidation Amount of the Capital Securities.
Notwithstanding any other provision of this Trust Agreement, no
amendment to this Trust Agreement may be made if, as a result of such
amendment, it would cause the Issuer Trust to be taxable as a
corporation for United States Federal income tax purposes.
SECTION 6.2. Notice of Meetings.
Notice of all meetings of the Holders, stating the time, place
and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.8 to each Holder of record, at his registered
address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the
meeting may be so considered whether or not stated in the notice of
the meeting. Any adjourned meeting may be held as adjourned without
further notice.
SECTION 6.3. Meetings of Holders.
No annual meeting of Holders is required to be held. The
Property Trustee, however, shall call a meeting of Holders to
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vote on any matter upon the written request of the Holders of record
of 25% of the aggregate Liquidation Amount of the Capital Securities
and the Administrators or the Property Trustee may, at any time in
their discretion, call a meeting of Holders of Capital Securities to
vote on any matters as to which Holders are entitled to vote.
Holders of at least a Majority in Liquidation Amount of the
Capital Securities, present in person or represented by proxy, shall
constitute a quorum at any meeting of Holders of the Capital
Securities.
If a quorum is present at a meeting, an affirmative vote by the
Holders of record present, in person or by proxy, holding Capital
Securities representing at least a Majority in Liquidation Amount of
the Capital Securities held by the Holders present, either in person
or by proxy, at such meeting shall constitute the action of the
Holders of Capital Securities, unless this Trust Agreement requires a
greater number of affirmative votes.
SECTION 6.4. Voting Rights.
Holders shall be entitled to one vote for each $1,000 of
Liquidation Amount represented by their Outstanding Trust Securities
in respect of any matter as to which such Holders are
entitled to vote.
SECTION 6.5. Proxies, etc.
At any meeting of Holders, any Holder entitled to vote thereat
may vote by proxy, provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the Property
Trustee, or with such other officer or agent of the Issuer Trust as
the Property Trustee may direct, for verification prior to the time
at which such vote shall be taken. Pursuant to a resolution of the
Property Trustee, proxies may be solicited in the name of the
Property Trustee or one or more officers of the Property Trustee.
Only Holders of record shall be entitled to vote. When Trust
Securities are held jointly by several persons, any one of them may
vote at any meeting in person or by proxy in respect of such Trust
Securities, but if more than one of them shall be present at such
meeting in person or by proxy, and such joint owners or their proxies
so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to
be executed by or on behalf of a Holder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving
invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
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SECTION 6.6. Holder Action by Written Consent.
Any action which may be taken by Holders at a meeting may be
taken without a meeting if Holders holding at least a Majority in
Liquidation Amount of all Trust Securities entitled to vote in
respect of such action (or such larger proportion thereof as shall be
required by any other provision of this Trust Agreement) shall
consent to the action in writing.
SECTION 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Holders who are entitled to
notice of and to vote at any meeting or by written consent, or to
participate in any distribution on the Trust Securities in respect of
which a record date is not otherwise provided for in this Trust
Agreement, or for the purpose of any other action, the Administrators
or Property Trustee may from time to time fix a date, not more than
90 days prior to the date of any meeting of Holders or the payment of
a distribution or other action, as the case may be, as a record date
for the determination of the identity of the Holders of record for
such purposes.
SECTION 6.8. Acts of Holders.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Trust Agreement
to be given, made or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by an agent duly appointed in
writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are
delivered to the Property Trustee. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such instrument
or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.1)
conclusive in favor of the Issuer Trustees, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity,
such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date
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of the execution of any such instrument or writing, or the authority
of the Person executing the same, may also be proved in any other
manner which any Issuer Trustee or Administrator receiving the same
deems sufficient.
The ownership of Trust Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Trust Security shall bind
every future Holder of the same Trust Security and the Holder of
every Trust Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Issuer Trustees, the
Administrators or the Issuer Trust in reliance thereon, whether or
not notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation
Amount of such Trust Security or by one or more duly appointed agents
each of which may do so pursuant to such appointment with regard to
all or any part of such Liquidation Amount.
If any dispute shall arise among the Holders, the
Administrators or the Issuer Trustees with respect to the
authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Holder
or Issuer Trustee under this Article VI, then the determination of
such matter by the Property Trustee shall be conclusive with respect
to such matter.
A Holder may institute a legal proceeding directly against the
Depositor under the Guarantee Agreement to enforce its rights under
the Guarantee Agreement without first instituting a legal proceeding
against the Guarantee Trustee (as defined in the Guarantee
Agreement), the Issuer Trust, any Issuer Trustee, any Administrator
or any person or entity.
SECTION 6.9. Inspection of Records.
Upon reasonable notice to the Administrators and the Property
Trustee, the records of the Issuer Trust shall be open to inspection
by Holders during normal business hours for any purpose reasonably
related to such Holder's interest as a Holder.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the
Property Trustee and the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally
on behalf of and as to itself, hereby represents and warrants for the
benefit of the Depositor and the Holders that:
(a) The Property Trustee is a banking corporation with trust
powers, duly organized, validly existing and in good standing under
the laws of New York, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms
of this Trust Agreement.
(b) The execution, delivery and performance by the Property
Trustee of this Trust Agreement has been duly authorized by all
necessary corporate action on the part of the Property Trustee; and
this Trust Agreement has been duly executed and delivered by the
Property Trustee, and constitutes a legal, valid and binding
obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws
affecting creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity
or at law).
(c) The execution, delivery and performance of this Trust
Agreement by the Property Trustee does not conflict with or
constitute a breach of the certificate of incorporation or by-laws of
the Property Trustee.
(d) At the Closing Date, the Property Trustee has not knowingly
created any liens or encumbrances on the Trust Securities.
(e) No consent, approval or authorization of, or registration
with or notice to, any New York State or federal banking authority is
required for the execution, delivery or performance by the Property
Trustee, of this Trust Agreement.
(f) The Delaware Trustee is duly organized, validly existing
and in good standing under the laws of the State of Delaware, with
trust power and authority to execute and deliver, and to carry out
and perform its obligations under the terms of, the Trust Agreement.
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(g) The execution, delivery and performance by the Delaware
Trustee of this Trust Agreement has been duly authorized by all
necessary corporate action on the part of the Delaware Trustee; and
this Trust Agreement has been duly executed and delivered by the
Delaware Trustee, and constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws
affecting creditors' right generally and to general principles of
equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity
or at law).
(h) The execution, delivery and performance of this Trust
Agreement by the Delaware Trustee does not conflict with or
constitute a breach of the certificate of incorporation or by-laws of
the Delaware Trustee.
(i) No consent, approval or authorization of, or registration
with or notice to any state or Federal banking authority is required
for the execution, delivery or performance by the Delaware Trustee,
of this Trust Agreement.
(j) The Delaware Trustee is an entity which has its principal
place of business in the State of Delaware.
SECTION 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of
the Holders that:
(a) the Trust Securities Certificates issued at the Closing
Date on behalf of the Issuer Trust have been duly authorized and will
have been duly and validly executed, issued and delivered by the
Issuer Trustees pursuant to the terms and provisions of, and in
accordance with the requirements of, this Trust Agreement, and the
Holders will be, as of each such date, entitled to the benefits of
this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges
payable by the Issuer Trust (or the Issuer Trustees on behalf of the
Issuer Trust) under the laws of the State of Delaware or any
political subdivision thereof in connection with the execution,
delivery and performance by either the Property Trustee or the
Delaware Trustee, as the case may be, of this Trust Agreement.
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ARTICLE VIII
THE ISSUER TRUSTEES; THE ADMINISTRATORS
SECTION 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Issuer Trustees and
the Administrators shall be as provided by this Trust Agreement and,
in the case of the Property Trustee, by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Trust Agreement
shall require the Issuer Trustees or the Administrators to expend or
risk their own funds or otherwise incur any financial liability in
the performance of any of their duties hereunder, or in the exercise
of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of
this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Issuer Trustees or the
Administrators shall be subject to the provisions of this Section.
Nothing in this Trust Agreement shall be construed to release an
Administrator from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct. To the
extent that, at law or in equity, an Issuer Trustee or Administrator
has duties and liabilities relating to the Issuer Trust or to the
Holders, such Issuer Trustee or Administrator shall not be liable to
the Issuer Trust or to any Holder for such Issuer Trustee's or
Administrator's good faith reliance on the provisions of this Trust
Agreement. The provisions of this Trust Agreement, to the extent that
they restrict the duties and liabilities of the Issuer Trustees and
Administrators otherwise existing at law or in equity, are agreed by
the Depositor and the Holders to replace such other duties and
liabilities of the Issuer Trustees and Administrators.
(b) All payments made by the Property Trustee or a Paying Agent
in respect of the Trust Securities shall be made only from the
revenue and proceeds from the Trust Property and only to the extent
that there shall be sufficient revenue or proceeds from the Trust
Property to enable the Property Trustee or a Paying Agent to make
payments in accordance with the terms hereof. Each Holder, by its
acceptance of a Trust Security, agrees that it will look solely to
the revenue and proceeds from the Trust Property to the extent
legally available for distribution to it as herein provided and that
neither the Issuer Trustees nor the Administrators are personally
liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security.
This Section 8.1(b) does not limit the liability of the Issuer
Trustees expressly
- 46 -
set forth elsewhere in this Trust Agreement or, in the case of the
Property Trustee, in the Trust Indenture Act.
(c) The Property Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are
specifically set forth in this Trust Agreement (including pursuant to
Section 10.10), and no implied covenants shall be read into this
Trust Agreement against the Property Trustee. If an Event of Default
has occurred (that has not been cured or waived pursuant to Section
5.13 of the Indenture), the Property Trustee shall enforce this Trust
Agreement for the benefit of the Holders and shall exercise such of
the rights and powers vested in it by this Trust Agreement, and use
the same degree of care and skill in its exercise thereof, as a
prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.
(d) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any 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 Property
Trustee shall be determined solely by the express
provisions of this Trust Agreement (including pursuant to
Section 10.10), and the Property Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Trust
Agreement (including pursuant to Section 10.10); and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively
rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Property Trustee
and conforming to the requirements of this Trust
Agreement; but in the case of any such certificates or
opinions that by any provision hereof or of the Trust
Indenture Act are specifically required to be furnished to
the Property Trustee, the Property Trustee shall be under
a duty to examine the same to determine whether or not
they conform to the requirements of this Trust Agreement;
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(ii) the Property Trustee shall not be liable for any
error of judgment made in good faith by an authorized officer
of the Property Trustee, unless it shall be proved that the
Property Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of
at least a Majority in Liquidation Amount of the Capital
Securities relating to the time, method and place of conducting
any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the
Property Trustee under this Trust Agreement;
(iv) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Junior
Subordinated Debentures and the Payment Account shall be to
deal with such property in a similar manner as the Property
Trustee deals with similar property for its own account,
subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement and
the Trust Indenture Act;
(v) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise
agree with the Depositor; and money held by the Property
Trustee need not be segregated from other funds held by it
except in relation to the Payment Account maintained by the
Property Trustee pursuant to Section 3.1 and except to the
extent otherwise required by law;
(vi) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrators or the
Depositor with their respective duties under this Trust
Agreement, nor shall the Property Trustee be liable for the
default or misconduct of any other Issuer Trustee, the
Administrators or the Depositor; and
(vii) no provision of this Trust Agreement shall require
the Property Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or
powers, if the Property Trustee shall have reasonable grounds
for believing that the repayment of such funds or liability is
not reasonably assured to it under the terms of this Trust
Agreement or adequate indemnity against such risk or liability
is not reasonably assured to it.
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(e) The Administrators shall not be responsible for monitoring
the compliance by the Issuer Trustee or the Depositor with their
respective duties under this Trust Agreement, nor shall either
Administrator be liable for the default or misconduct of any other
Administrator, the Issuer Trustees or the Depositor.
SECTION 8.2. Certain Notices.
Within five Business Days after the occurrence of any Event of
Default actually known to a Responsible Officer of the Property
Trustee, the Property Trustee shall transmit, in the manner and to
the extent provided in Section 10.8, notice of such Event of Default
to the Holders and the Administrators, unless such Event of Default
shall have been cured or waived.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on
the Junior Subordinated Debentures pursuant to the Indenture, the
Property Trustee shall transmit, in the manner and to the extent
provided in Section 10.8, notice of such exercise to the Holders and
the Administrators, unless such exercise shall have been revoked.
SECTION 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be fully protected
in acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written representation
of a Holder or transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any direction or act of the Depositor contemplated by
this Trust Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(c) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any re-recording, refiling or reregistration
thereof;
(d) the Property Trustee may consult with counsel of its
own choosing (which counsel may be counsel to the Depositor or
any of its Affiliates, and may include any of its employees) and
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the advice of such counsel shall be full and complete authorization
and protection in respect of any action taken suffered or omitted by
it hereunder in good faith and in reliance thereon and in accordance
with such advice, such counsel may be counsel to the Depositor or any
of its Affiliates, and may include any of its employees; the Property
Trustee shall have the right at any time to seek instructions
concerning the administration of this Trust Agreement from any court
of competent jurisdiction;
(e) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the Holders pursuant
to this Trust Agreement, unless such Holders shall have offered to
the Property Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction; provided that, nothing
contained in this Section 8.3(f) shall be taken to relieve the
Property Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this
Trust Agreement;
(f) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing
to do so by one or more Holders, but the Property Trustee may make
such further inquiry or investigation into such facts or matters as
it may see fit;
(g) the Property Trustee may execute any of the trusts or
powers hereunder or perform any of its duties hereunder either
directly or by or through its agents or attorneys, provided that the
Property Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due
care by it hereunder;
(h) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the
Holders (which instructions may only be given by the Holders of the
same proportion in Liquidation Amount of the Trust Securities as
would be entitled to direct the Property Trustee under the terms of
the Trust Securities in respect of such remedy, right or action),
(ii) may refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (iii) shall be
fully protected in acting in accordance with such instructions; and
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(i) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose
any duty or obligation on any Issuer Trustee or Administrator to
perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it, in any jurisdiction in which
it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power,
duty or obligation. No permissive power or authority available to any
Issuer Trustee or Administrator shall be construed to be a duty.
SECTION 8.4. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Trust Securities
Certificates shall be taken as the statements of the Issuer Trust,
and the Issuer Trustees and the Administrators do not assume any
responsibility for their correctness. The Issuer Trustees and the
Administrators shall not be accountable for the use or application by
the Depositor of the proceeds of the Junior Subordinated Debentures.
SECTION 8.5. May Hold Securities.
Except as provided in the definition of the term "Outstanding"
in Article I, the Administrators, any Issuer Trustee or any other
agent of any Issuer Trustee or the Issuer Trust, in its individual or
any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13, may otherwise deal
with the Issuer Trust with the same rights it would have if it were
not an Administrator, Issuer Trustee or such other agent.
SECTION 8.6. Compensation; Indemnity; Fees.
The Depositor, as borrower, agrees:
(a) to pay to the Issuer Trustees from time to time reasonable
compensation for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(b) to reimburse the Issuer Trustees upon request for all
reasonable expenses, disbursements and advances incurred or made
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by the Issuer Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to their negligence or
willful misconduct; and
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Issuer Trustee, (ii) each
Administrator, (iii) any Affiliate of any Issuer Trustee, (iv) any
officer, director, shareholder, employee, representative or agent of
any Issuer Trustee, and (v) any employee or agent of the Issuer
Trust, (referred to herein as an "Indemnified Person") from and
against any loss, damage, liability, tax, penalty, expense or claim
of any kind or nature whatsoever incurred by such Indemnified Person
arising out of or in connection with the creation, operation or
dissolution of the Issuer Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the
Issuer Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of authority conferred on such
Indemnified Person by this Trust Agreement, except that no
Indemnified Person shall be entitled to be indemnified in respect of
any loss, damage or claim incurred by such Indemnified Person by
reason of negligence or willful misconduct with respect to such acts
or omissions.
The provisions of this Section 8.6 shall survive the
termination of this Trust Agreement.
No Issuer Trustee may claim any lien or charge on any Trust
Property as a result of any amount due pursuant to this Section 8.6.
The Depositor, any Administrator and any Issuer Trustee may
engage in or possess an interest in other business ventures of any
nature or description, independently or with others, similar or
dissimilar to the business of the Issuer Trust, and the Issuer Trust
and the Holders of Trust Securities shall have no rights by virtue of
this Trust Agreement in and to such independent ventures or the
income or profits derived therefrom, and the pursuit of any such
venture, even if competitive with the business of the Issuer Trust,
shall not be deemed wrongful or improper. Neither the Depositor, any
Administrator, nor any Issuer Trustee shall be obligated to present
any particular investment or other opportunity to the Issuer Trust
even if such opportunity is of a character that, if presented to the
Issuer Trust, could be taken by the Issuer Trust, and the Depositor,
any Administrator or any Issuer Trustee shall have the right to take
for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other
opportunity. Any Issuer Trustee may engage
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or be interested in any financial or other transaction with the
Depositor or any Affiliate of the Depositor, or may act as depository
for, trustee or agent for, or act on any committee or body of holders
of, securities or other obligations of the Depositor or its
Affiliates.
SECTION 8.7. Corporate Property Trustee Required;
Eligibility of Trustees and Administrators.
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall be a
Person that is a national or state chartered bank and eligible
pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or
to the requirements of its supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of
such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at
any time the Property Trustee with respect to the Trust Securities
shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article. At the time of
appointment, the Property Trustee must have securities rated in one
of the three highest rating categories by a nationally recognized
statistical rating organization.
(b) There shall at all times be one or more Administrators
hereunder. Each Administrator shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one
or more persons authorized to bind that entity. An employee, officer
or Affiliate of the Depositor may serve as an Administrator.
(c) There shall at all times be a Delaware Trustee. The
Delaware Trustee shall either be (i) a natural person who is at least
21 years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of business in the State of
Delaware and that otherwise meets the requirements of applicable
Delaware law that shall act through one or more persons authorized to
bind such entity.
SECTION 8.8. Conflicting Interests.
(a) If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property
Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and
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subject to the provisions of, the Trust Indenture Act and this
Trust Agreement.
(b) The Guarantee Agreement and the Indenture shall be deemed
to be sufficiently described in this Trust Agreement for the purposes
of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
SECTION 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the
legal requirements of the Trust Indenture Act or of any jurisdiction
in which any part of the Trust Property may at the time be located,
the Property Trustee shall have power to appoint, and upon the
written request of the Property Trustee, the Depositor and the
Administrators shall for such purpose join with the Property Trustee
in the execution, delivery, and performance of all instruments and
agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-trustee, jointly
with the Property Trustee, of all or any part of such Trust Property,
or to the extent required by law to act as separate trustee of any
such property, in either case with such powers as may be provided in
the instrument of appointment, and to vest in such Person or Persons
in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this
Section. Any co-trustee or separate trustee appointed pursuant to
this Section shall either be (i) a natural person who is at least 21
years of age and a resident of the United States or (ii) a legal
entity with its principal place of business in the United States that
shall act through one or more persons authorized to bind such entity.
Should any written instrument from the Depositor be required by
any co-trustee or separate trustee so appointed for more fully
confirming to such co-trustee or separate trustee such property,
title, right, or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to
the following terms, namely:
(a) The Trust Securities shall be executed by one or more
Administrators, and the Trust Securities shall be executed and
delivered and all rights, powers, duties, and obligations hereunder
in respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with, the
Property Trustees specified hereunder, shall
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be exercised, solely by the Property Trustee and not by such
co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed
upon and exercised or performed by the Property Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the
Depositor, may accept the resignation of or remove any co-trustee or
separate trustee appointed under this Section, and, in case a
Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the
concurrence of the Depositor. Upon the written request of the
Property Trustee, the Depositor shall join with the Property Trustee
in the execution, delivery and performance of all instruments and
agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this
Section.
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee or any other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of
any act of a co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate
trustee.
SECTION 8.10. Resignation and Removal; Appointment of
Successor.
No resignation or removal of any Issuer Trustee (the "Relevant
Trustee") and no appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable requirements
of Section 8.11.
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Subject to the immediately preceding paragraph, a Relevant
Trustee may resign at any time by giving written notice thereof to
the Holders. The Relevant Trustee shall appoint a successor by
requesting from at least three Persons meeting the eligibility
requirements its expenses and charges to serve as the Relevant
Trustee on a form provided by the Administrators, and selecting the
Person who agrees to the lowest expenses and charges. If the
instrument of acceptance by the successor Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 60
days after the giving of such notice of resignation, the Relevant
Trustee may petition, at the expense of the Issuer Trust, any court
of the State of Delaware for the appointment of a successor Relevant
Trustee.
The Property Trustee or the Delaware Trustee may be removed at
any time by Act of the Holders of at least a Majority in Liquidation
Amount of the Capital Securities, delivered to the Relevant Trustee
(in its individual capacity and on behalf of the Issuer Trust) (i)
for cause (including upon the occurrence of an Event of Default
described in subparagraph (f) of the definition thereof with respect
to the Relevant Trustee), or (ii) if a Debenture Event of Default
shall have occurred and be continuing at any time.
If any Issuer Trustee shall resign, it shall appoint its
successor. If a resigning Issuer Trustee shall fail to appoint a
successor, or if an Issuer Trustee shall be removed or become
incapable of acting as Issuer Trustee, or if any vacancy shall occur
in the office of any Issuer Trustee for any cause, the Holders of the
Capital Securities, by Act of the Holders of record of not less than
25% in aggregate Liquidation Amount of the Capital Securities then
Outstanding delivered to such Relevant Trustee, shall promptly
appoint a successor Relevant Trustee or Trustees, and such successor
Issuer Trustee shall comply with the applicable requirements of
Section 8.11. If no successor Relevant Trustee shall have been so
appointed by the Holders of the Capital Securities and accepted
appointment in the manner required by Section 8.11, any Holder, on
behalf of himself and all others similarly situated, or any other
Issuer Trustee, may petition any court of competent jurisdiction for
the appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and
each removal of an Issuer Trustee and each appointment of a successor
Trustee to all Holders in the manner provided in Section 10.8 and
shall give notice to the Depositor and to the Administrators. Each
notice shall include the name of the successor Relevant Trustee and
the address of its Corporate Trust Office if it is the Property
Trustee.
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Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Delaware Trustee who is a natural
person dies or becomes, in the opinion of the Holders of the Common
Securities, incompetent or incapacitated, the vacancy created by such
death, incompetence or incapacity may be filled by the Property
Trustee following the procedures regarding expenses and charges set
forth above (with the successor in each case being a Person who
satisfies the eligibility requirement for Administrators or Delaware
Trustee, as the case may be, set forth in Section 8.7).
SECTION 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each such successor
Relevant Trustee with respect to the Trust Securities shall execute,
acknowledge and deliver an amendment hereto wherein each successor
Relevant Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor Relevant
Trustee all the rights, powers, trusts and duties of the retiring
Relevant Trustee with respect to the Trust Securities and the Issuer
Trust, and (b) shall add to or change any of the provisions of this
Trust Agreement as shall be necessary to provide for or facilitate
the administration of the Issuer Trust by more than one Relevant
Trustee, it being understood that nothing herein or in such amendment
shall constitute such Relevant co-trustees and upon the execution and
delivery of such amendment the resignation or removal of the retiring
Relevant Trustee shall become effective to the extent provided
therein and each such successor Relevant Trustee, without any further
act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Relevant Trustee; but, on
request of the Issuer Trust or any successor Relevant Trustee such
retiring Relevant Trustee shall duly assign, transfer and deliver to
such successor Relevant Trustee all Trust Property, all proceeds
thereof and money held by such retiring Relevant Trustee hereunder
with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Issuer
Trust shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Relevant
Trustee all such rights, powers and trusts referred to in the first
or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee
shall be qualified and eligible under this Article.
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SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business.
Any Person into which the Property Trustee or the Delaware
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 such Relevant Trustee shall be a party, or any
Person succeeding to all or substantially all the corporate trust
business of such Relevant Trustee, shall be the successor of such
Relevant Trustee hereunder, provided that such Person shall be
otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of
any of the parties hereto.
SECTION 8.13. Preferential Collection of Claims Against
Depositor or Issuer Trust.
If and when the Property Trustee shall be or become a creditor
of the Depositor (or any other obligor upon the Trust Securities),
the Property Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the
Depositor (or any such other obligor) as is required by the Trust
Indenture Act.
SECTION 8.14. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Issuer Trust or any
other obligor upon the Trust Securities or the property of the Issuer
Trust or of such other obligor, the Property Trustee (irrespective of
whether any Distributions on the Trust Securities shall then be due
and payable and irrespective of whether the Property Trustee shall
have made any demand on the Issuer Trust for the payment of any past
due Distributions) shall be entitled and empowered, to the fullest
extent permitted by law, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owning and unpaid in respect of the Trust Securities
and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Property Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the
same;
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and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments
to the Property Trustee and, in the event the Property Trustee shall
consent to the making of such payments directly to the Holders, to
pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property
Trustee, its agents and counsel, and any other amounts due the
Property Trustee.
Nothing herein contained shall be deemed to authorize the
Property Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement,
adjustment or compensation affecting the Trust Securities or the
rights of any Holder thereof or to authorize the Property Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 8.15. Reports by Property Trustee.
(a) Not later than January 31 of each year commencing with
January 31, 1998, the Property Trustee shall transmit to all Holders
in accordance with Section 10.8, and to the Depositor, a brief report
dated as of the immediately preceding November 30 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof,
if to the best of its knowledge it has continued to be eligible
under said Section, a written statement to such effect; and
(ii) any change in the property and funds in its
possession as Property Trustee since the date of its last
report and any action taken by the Property Trustee in the
performance of its duties hereunder which it has not previously
reported and which in its opinion materially affects the Trust
Securities.
(b) In addition the Property Trustee shall transmit to Holders
such reports concerning the Property Trustee and its actions under
this Trust Agreement as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant
thereto as set forth in Section 10.10 of this Trust Agreement.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with the
Depositor.
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SECTION 8.16. Reports to the Property Trustee.
The Depositor and the Administrators on behalf of the Issuer
Trust shall provide to the Property Trustee such documents, reports
and information as required by Section 314 of the Trust Indenture Act
and the compliance certificate required by Section 314(a) of the
Trust Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act, as set forth in
Section 10.10 of this Trust Agreement. The Depositor and the
Administrators shall annually file with the Property Trustee a
certificate specifying whether such Person is in compliance with all
the terms and covenants applicable to such Person hereunder.
SECTION 8.17. Evidence of Compliance with Conditions
Precedent.
Each of the Depositor and the Administrators on behalf of the
Issuer Trust shall provide to the Property Trustee such evidence of
compliance with any conditions precedent, if any, provided for in
this Trust Agreement that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act as set forth in Section
10.10 of this Trust Agreement. Any certificate or opinion required to
be given by an officer pursuant to Section 314(c)(1) of the Trust
Indenture Act shall be given in the form of an Officers' Certificate.
SECTION 8.18. Number of Issuer Trustees.
(a) The number of Issuer Trustees shall be two. The Property
Trustee and the Delaware Trustee may be the same Person, in which
case the number of Issuer Trustees may be one.
(b) If an Issuer Trustee ceases to hold office for any reason,
a vacancy shall occur. The vacancy shall be filled with an Issuer
Trustee appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer Trustee
shall not operate to annul the Issuer Trust.
SECTION 8.19. Delegation of Power.
(a) Any Administrator may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of
21 his or her power for the purpose of executing any documents
contemplated in Section 2.7(a) or making any governmental filing; and
(b) The Administrators shall have power to delegate from time
to time to such of their number the doing of such things
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and the execution of such instruments either in the name of the
Issuer Trust or the names of the Administrators or otherwise as the
Administrators may deem expedient, to the extent such delegation is
not prohibited by applicable law or contrary to the provisions of
this Trust Agreement.
SECTION 8.20. Appointment of Administrators.
(a) The Administrators shall be appointed by the Holders of a
Majority in Liquidation Amount of the Common Securities and may be
removed by the Holders of a Majority in Liquidation Amount of the
Common Securities or may resign at any time. Upon any resignation or
removal, the Depositor shall appoint a successor Administrator. Each
Administrator shall execute this Trust Agreement thereby agreeing to
comply with, and be legally bound by, all of the terms, conditions
and provisions of this Trust Agreement. If at any time there is no
Administrator, the Property Trustee or any Holder who has been a
Holder of Trust Securities for at least six months may petition any
court of competent jurisdiction for the appointment of one or more
Administrators.
(b) Whenever a vacancy in the number of Administrators shall
occur, until such vacancy is filled by the appointment of an
Administrator in accordance with this Section 8.20, the
Administrators in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have
all the powers granted to the Administrators and shall discharge all
the duties imposed upon the Administrators by this Trust Agreement.
(c) Notwithstanding the foregoing, or any other provision of
this Trust Agreement, in the event any Administrator or a Delaware
Trustee who is a natural person dies or becomes, in the opinion of
the Holders of a Majority in Liquidation Amount of the Common
Securities, incompetent, or incapacitated, the vacancy created by
such death, incompetence or incapacity may be filled by the remaining
Administrators, if there were at least two of them prior to such
vacancy, and by the Depositor, if there were not two such
Administrators immediately prior to such vacancy (with the successor
in each case being a Person who satisfies the eligibility requirement
for Administrators or Delaware Trustee, as the case may be, set forth
in Section 8.7).
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ARTICLE IX
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution Upon Expiration Date.
Unless earlier dissolved, the Issuer Trust shall automatically
dissolve on June 1, 2028 (the "Expiration Date"), and thereafter the
Trust Property shall be distributed in accordance with Section 9.4.
SECTION 9.2. Early Termination.
The first to occur of any of the following events is an "Early
Termination Event":
(a) the occurrence of the appointment of a receiver or other
similar official in any liquidation, insolvency or similar proceeding
with respect to the Depositor or all or substantially all of its
property, or a court or other governmental agency shall enter a
decree or order and such decree or order shall remain unstayed and
undischarged for a period of 60 days, unless the Depositor shall
transfer the Common Securities as provided by Section 5.11, in which
case this provision shall refer instead to any such successor Holder
of the Common Securities;
(b) the written direction to the Property Trustee from the
Holder of the Common Securities at any time to dissolve the Issuer
Trust and to distribute the Junior Subordinated Debentures to Holders
in exchange for the Capital Securities (which direction, subject to
Section 9.4(a), is optional and wholly within the discretion of the
Holders of the Common Securities);
(c) the redemption of all of the Capital Securities in
connection with the redemption of all the Junior Subordinated
Debentures; and
(d) the entry of an order for dissolution of the Issuer
Trust by a court of competent jurisdiction.
SECTION 9.3. Termination.
As soon as is practicable after the occurrence of an event
referred to in Section 9.1 or 9.2, and upon the completion of the
winding up and liquidation of the Issuer Trust, the Administrators
and the Issuer Trustees (each of whom is hereby authorized to take
such action) shall file a certificate of cancellation with the
Secretary of State of the State of Delaware terminating the Trust
and, upon such filing, the respective obligations and
responsibilities of the Issuer
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Trustees, the Administrators and the Issuer Trust created and
continued hereby shall terminate.
SECTION 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b)
or (d) of Section 9.2 occurs or upon the Expiration Date, the Issuer
Trust shall be wound up and liquidated by the Property Trustee as
expeditiously as the Property Trustee determines to be possible by
distributing, after paying or making reasonable provision to pay all
claims and obligations of the Issuer Trust in accordance with Section
3808(e) of the Delaware Business Trust Act, to each Holder a Like
Amount of Junior Subordinated Debentures, subject to Section 9.4(d).
Notice of liquidation shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not later than 15 nor more
than 45 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities
Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that, from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be Outstanding and any
Trust Securities Certificates not surrendered for exchange will be
deemed to represent a Like Amount of Junior Subordinated Debentures;
and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities Certificates
for Junior Subordinated Debentures, or if Section 9.4(d) applies
receive a Liquidation Distribution, as the Administrators or the
Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Issuer Trust and distribution of the
Junior Subordinated Debentures to Holders, the Property Trustee shall
establish a record date for such distribution (which shall be not
more than 30 days prior to the Liquidation Date) and, either itself
acting as exchange agent or through the appointment of a separate
exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Junior Subordinated
Debentures in exchange for the Outstanding Trust Securities
Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed
to be Outstanding, (ii) the Clearing Agency for the Capital
Securities or its nominee, as the registered holder of the Global
Capital Securities Certificate, shall receive a registered global
certificate or certificates representing the
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Junior Subordinated Debentures to be delivered upon such distribution
with respect to Capital Securities held by the Clearing Agency or its
nominee, and, (iii) any Trust Securities Certificates not held by the
Clearing Agency for the Capital Securities or its nominee as
specified in clause (ii) above will be deemed to represent Junior
Subordinated Debentures having a principal amount equal to the stated
Liquidation Amount of the Trust Securities represented thereby and
bearing accrued and unpaid interest in an amount equal to the
accumulated and unpaid Distributions on such Trust Securities until
such certificates are presented to the Securities Registrar for
transfer or reissuance.
(d) If, notwithstanding the other provisions of this Section
9.4, whether because of an order for dissolution entered by a court
of competent jurisdiction or otherwise, distribution of the Junior
Subordinated Debentures is not practical, or if any Early Termination
Event specified in clause (c) of Section 9.2 occurs, the Issuer Trust
shall be dissolved and wound up and the Trust Property shall be
liquidated by the Property Trustee in such manner as the Property
Trustee determines. In such event, on the date of the dissolution of
the Issuer Trust, Holders will be entitled to receive out of the
assets of the Issuer Trust available for distribution to Holders,
after paying or making reasonable provision to pay all claims and
obligations of the Issuer Trust in accordance with Section 3808(e) of
the Delaware Business Trust Act, an amount equal to the aggregate of
Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If, upon any such dissolution, the
Liquidation Distribution can be paid only in part because the Issuer
Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Issuer Trust on the Trust
Securities shall be paid on a pro rata basis (based upon Liquidation
Amounts). The Holders of the Common Securities will be entitled to
receive Liquidation Distributions upon any such dissolution pro rata
(determined as aforesaid) with Holders of Capital Securities, except
that, if a Debenture Event of Default has occurred and is continuing,
the Capital Securities shall have a priority over the Common
Securities as provided in Section 4.3.
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Issuer Trust.
The Issuer Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to, any entity,
except pursuant to this Section 9.5. At the request of the Holders of
the Common Securities, and with the consent of
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the Holders of at least a Majority in Liquidation Amount of the
Capital Securities, the Issuer Trust may merge with or into,
consolidate, amalgamate, or be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to a
trust organized as such under the laws of any State; provided,
however, that (i) such successor entity either (a) expressly assumes
all of the obligations of the Issuer Trust with respect to the
Capital Securities or (b) substitutes for the Capital Securities
other securities having substantially the same terms as the Capital
Securities (the "Successor Securities") so long as the Successor
Securities have the same priority as the Capital Securities with
respect to distributions and payments upon liquidation, redemption
and otherwise, (ii) a trustee of such successor entity possessing the
same powers and duties as the Property Trustee is appointed to hold
the Junior Subordinated Debentures, (iii) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not
cause the Capital Securities (including any Successor Securities) to
be downgraded by any nationally recognized statistical rating
organization, (iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the holders of the Capital
Securities (including any Successor Securities) in any material
respect, (v) such successor entity has a purpose substantially
identical to that of the Issuer Trust, (vi) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Issuer Trustee has received an Opinion of Counsel from
independent counsel experienced in such matters to the effect that
(a) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights
preferences and privileges of the holders of the Capital Securities
(including any Successor Securities) in any material respect, and (b)
following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the Issuer Trust nor such
successor entity will be required to register as an "investment
company" under the Investment Company Act and (vii) the Depositor or
any permitted transferee to whom it has transferred the Common
Securities hereunder own all of the Common Securities of such
successor entity and guarantees the obligations of such successor
entity under the Successor Securities at least to the extent provided
by the Guarantee Agreement. Notwithstanding the foregoing, the Issuer
Trust shall not, except with the consent of holders of 100% in
Liquidation Amount of the Capital Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer
or lease its properties and assets substantially as an entirety to
any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease
would cause the
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Issuer Trust or the successor entity to be taxable as a corporation
for United States Federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Holders.
Except as set forth in Section 9.2, the death or incapacity of
any person having an interest, beneficial or otherwise, in Trust
Securities shall not operate to terminate this Trust Agreement, nor
entitle the legal representatives or heirs of such person or any
Holder for such person, to claim an accounting, take any action or
bring any proceeding in any court for a partition or winding-up of
the arrangements contemplated hereby, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any of
them. Any merger or similar agreement shall be executed by the
Administrators on behalf of the Trust.
SECTION 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by
the Property Trustee and the Holders of a Majority in Liquidation
Amount of the Common Securities, without the consent of any Holder of
the Capital Securities (i) to cure any ambiguity, correct or
supplement any provision herein which may be inconsistent with any
other provision herein, or to make any other provisions with respect
to matters or questions arising under this Trust Agreement, provided,
however, that such amendment shall not adversely affect in any
material respect the interests of any Holder or (ii) to modify,
eliminate or add to any provisions of this Trust Agreement to such
extent as shall be necessary to ensure that the Issuer Trust will not
be taxable as a corporation for United States Federal income tax
purposes at any time that any Trust Securities are Outstanding or to
ensure that the Issuer Trust will not be required to register as an
investment company under the Investment Company Act.
(b) Except as provided in Section 10.2(c) hereof, any provision
of this Trust Agreement may be amended by the Property Trustee and
the Holders of a Majority in Liquidation Amount of the Common
Securities with (i) the consent of Holders of at least a Majority in
Liquidation Amount of the Capital Securities and (ii) receipt by the
Issuer Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Issuer Trustees
in accordance with such amendment will not cause the Issuer Trust to
be taxable as a corporation for United States federal income tax
purposes or affect the
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Issuer Trust's exemption from status of an "investment company" under
the Investment Company Act.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Holder
(such consent being obtained in accordance with Section 6.3 or 6.6
hereof), this Trust Agreement may not be amended to (i) change the
amount or timing of any Distribution on the Trust Securities or
otherwise adversely affect the amount of any Distribution required to
be made in respect of the Trust Securities as of a specified date or
(ii) restrict the right of a Holder to institute suit for the
enforcement of any such payment on or after such date.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Issuer Trustee shall enter into or consent to any
amendment to this Trust Agreement which would cause the Issuer Trust
to fail or cease to qualify for the exemption from status as an
"investment company" under the Investment Company Act or be taxable
as a corporation for United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor and the
Administrators, this Trust Agreement may not be amended in a manner
which imposes any additional obligation on the Depositor or the
Administrators.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrators or the Property Trustee shall promptly
provide to the Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall
be required to enter into any amendment to this Trust Agreement which
affects its own rights, duties or immunities under this Trust
Agreement. The Property Trustee shall be entitled to receive an
Opinion of Counsel and an Officers' Certificate stating that any
amendment to this Trust Agreement is in compliance with this Trust
Agreement.
(h) Any amendments to this Trust Agreement shall become
effective when notice of such amendment is given to the holders of
the Trust Securities.
SECTION 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust
Securities Certificates shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the
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remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF
THE HOLDERS, THE ISSUER TRUST, THE DEPOSITOR, THE ISSUER TRUSTEES AND
THE ADMINISTRATORS SHALL GOVERNED BY AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE AND ALL RIGHTS AND REMEDIES
SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICT OF LAWS OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION
THAT WOULD CALL FOR THE APPLICATION OF THE LAW OF ANY JURISDICTION
OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER, THAT THERE SHALL
NOT BE APPLICABLE TO THE HOLDERS, THE ISSUER TRUST, THE DEPOSITOR,
THE ISSUER TRUSTEES, THE ADMINISTRATORS OR THIS TRUST AGREEMENT ANY
PROVISION OF THE LAWS (STATUTORY OR COMMON) OF THE STATE OF DELAWARE
PERTAINING TO TRUSTS THAT RELATE TO OR REGULATE, IN A MANNER
INCONSISTENT WITH THE TERMS HEREOF (A) THE FILING WITH ANY COURT OR
GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES OF
TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS
FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE
NECESSITY FOR OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL
CONCERNING THE ACQUISITION, HOLDING OR DISPOSITION OF REAL OR
PERSONAL PROPERTY, (D) FEES OR OTHER SUMS PAYABLE TO TRUSTEES,
OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E) THE ALLOCATION OF
RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL, (F) RESTRICTIONS OR
LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR CONCENTRATION OF
TRUST INVESTMENTS OR REQUIREMENTS RELATING TO THE TITLING, STORAGE OR
OTHER MANNER OF HOLDING OR INVESTING TRUST ASSETS OR (G) THE
ESTABLISHMENT OF FIDUCIARY OR OTHER STANDARDS OF RESPONSIBILITY OR
LIMITATIONS ON THE ACTS OR POWERS OF TRUSTEES THAT ARE INCONSISTENT
WITH THE LIMITATIONS OR LIABILITIES OR AUTHORITIES AND POWERS OF THE
ISSUER TRUSTEES OR THE ADMINISTRATOR AS SET FORTH OR REFERENCED IN
THIS TRUST AGREEMENT. SECTION 3540 OF TITLE 12 OF THE DELAWARE CODE
SHALL NOT APPLY TO THE ISSUER TRUST.
SECTION 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall
be a day that is not a Business Day, then such payment need not be
made on such date but may be made on the next succeeding day that is
a Business Day (except as otherwise provided in Sections 4.2(d)),
with the same force and effect as though made on the date fixed for
such payment, and no Distributions shall accumulate on such unpaid
amount for the period after such date.
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SECTION 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to
the benefit of any successor to the Depositor, the Issuer Trust, the
Administrators and any Issuer Trustee, including any successor by
operation of law. Except in connection with a consolidation, merger
or sale involving the Depositor that is permitted under Article VIII
of the Indenture and pursuant to which the assignee agrees in writing
to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
SECTION 10.7. Headings.
The Article and Section headings are for convenience only and
shall not affect the construction of this Trust Agreement.
SECTION 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication that by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon any Holder or the Depositor may be given
or served in writing by deposit thereof, first class postage prepaid,
in the United States mail, hand delivery or facsimile transmission,
in each case, addressed, (a) in the case of a Holder of Capital
Securities, to such Holder as such Holder's name and address may
appear on the Securities Register; and (b) in the case of the Holder
of Common Securities or the Depositor, to First Empire State
Corporation, One M&T Plaza, Buffalo, New York 14240, Attention:
Office of the Secretary, facsimile no.: (716) 842-5376 or to such
other address as may be specified in a written notice by the
Depositor to the Property Trustee. Such notice, demand or other
communication to or upon a Holder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery,
mailing or transmission. Such notice, demand or other communication
to or upon the Depositor shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the
Depositor.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Issuer Trust, the Property Trustee,
the Delaware Trustee, the Administrators, or the Issuer Trust shall
be given in writing addressed (until another address is published by
the Issuer Trust) as follows: (a) with respect to the Property
Trustee to Bankers Trust Company, Four Albany Street, 4th Floor, New
York, NY 10006, Attention: Corporate Trust and Agency Group Corporate
Market Services; (b) with respect to the Delaware Trustee to Bankers
Trust (Delaware), 1001 Jefferson Street, Suite 550, Wilmington,
Delaware 19801,
- 69 -
Attention: Lisa Wilkins; and (c) with respect to the Administrators,
to them at the address above for notices to the Depositor, marked
"Attention: Office of the Secretary". Such notice, demand or other
communication to or upon the Issuer Trust or the Property Trustee
shall be deemed to have been sufficiently given or made only upon
actual receipt of the writing by the Issuer Trust, the Property
Trustee, or such Administrator.
SECTION 10.9 Agreement Not to Petition.
Each of the Issuer Trustees, the Administrators and the
Depositor agree for the benefit of the Holders that, until at least
one year and one day after the Issuer Trust has been terminated in
accordance with Article IX, they shall not file, or join in the
filing of, a petition against the Issuer Trust under any bankruptcy,
insolvency, reorganization or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively,
"Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Issuer Trust under any Bankruptcy Law. In the
event the Depositor takes action in violation of this Section 10.9,
the Property Trustee agrees, for the benefit of Holders, that at the
expense of the Depositor, it shall file an answer with the bankruptcy
court or otherwise properly contest the filing of such petition by
the Depositor against the Issuer Trust or the commencement of such
action and raise the defense that the Depositor has agreed in writing
not to take such action and should be estopped and precluded
therefrom and such other defenses, if any, as counsel for the Issuer
Trustee or the Issuer Trust may assert. If any Issuer Trustee or
Administrator takes action in violation of this Section 10.9, the
Depositor agrees, for the benefit of the Holders, that at the expense
of the Depositor, it shall file an answer with the bankruptcy court
or otherwise properly contest the filing of such petition by such
Person against the Depositor or the commencement of such action and
raise the defense that such Person has agreed in writing not to take
such action and should be estopped and precluded therefrom and such
other defenses, if any, as counsel for the Issuer Trustee or the
Issuer Trust may assert. The provisions of this Section 10.9 shall
survive the termination of this Trust Agreement.
SECTION 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act.
(a) Trust Indenture Act; Application. (i) This Trust Agreement
is subject to the provisions of the Trust Indenture Act that are
required to be a part of this Trust Agreement and shall, to the
extent applicable, be governed by such provisions; (ii) if and to the
extent that any provision of this Trust Agreement limits, qualifies
or conflicts with the duties imposed
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by ss.ss. 310 to 317, inclusive, of the Trust Indenture Act, such
imposed duties shall control; (iii) for purposes of this Trust
Agreement, the Property Trustee, to the extent permitted by
applicable law and/or the rules and regulations of the Commission,
shall be the only Issuer Trustee which is a trustee for the purposes
of the Trust Indenture Act; and (iv) the application of the Trust
Indenture Act to this Trust Agreement shall not affect the nature of
the Capital Securities and the Common Securities as equity securities
representing undivided beneficial interests in the assets of the
Issuer Trust.
(b) Lists of Holders of Capital Securities. (i) Each of the
Depositor and the Administrators on behalf of the Trust shall provide
the Property Trustee with such information as is required under ss.
312(a) of the Trust Indenture Act at the times and in the manner
provided in ss. 312(a) and (ii) the Property Trustee shall company
with its obligations under ss.ss. 310(b), 311 and 312(b) of the Trust
Indenture Act.
(c) Reports by the Property Trustee. Within 60 days after
November 30 of each year, the Property Trustee shall provide to the
Holders of the Trust Securities such reports as are required by ss.
313 of the Trust Indenture Act, if any, in the form, in the manner
and at the times provided by ss. 313 of the Trust Indenture Act. The
Property Trustee shall also comply with the requirements of ss.
313(d) of the Trust Indenture Act.
(d) Periodic Reports to Property Trustee. Each of the Depositor
and the Administrators on behalf of the Issuer Trust shall provide to
the Property Trustee, the Commission and the Holders of the Trust
Securities, as applicable, such documents, reports and information as
required by ss. 314(a)(1) - (3) (if any) of the Trust Indenture Act
and the compliance certificates required by ss. 314(a)(4) and (c) of
the Trust Indenture Act (provided that any certificate to be provided
pursuant to ss. 314(a)(4) of the Trust Indenture Act shall be
provided within 120 days of the end of each fiscal year of the Issuer
Trust.
(e) Evidence of Compliance with Conditions Precedent. Each of
the Depositor and the Administrators on behalf of the Issuer Trust
shall provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Trust
Agreement which relate to any of the matters set forth in ss. 314(c)
of the Trust Indenture Act. Any certificate or opinion required to be
given pursuant to ss. 314(c) shall comply with ss. 314(e) of the
Trust Indenture Act.
(f) Disclosure of Information. The disclosure of information as
to the names and addresses of the Holders of Trust Securities in
accordance with ss. 312 of the Trust Indenture Act, regardless of the
source from which such information was
- 71 -
derived, shall not be deemed to be a violation of any existing law or
any law hereafter enacted which does not specifically refer to ss.
312 of the Trust Indenture Act, nor shall the Property Trustee be
held accountable by reason of mailing any material pursuant to a
request made under ss. 312(b) of the Trust Indenture Act.
SECTION 10.11. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT
ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE
THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AGREEMENT AND THE
INDENTURE, AND THE AGREEMENT TO THE SUBORDINATION PROVISIONS AND
OTHER TERMS OF THE GUARANTEE AGREEMENT AND THE INDENTURE, AND SHALL
CONSTITUTE THE AGREEMENT OF THE ISSUER TRUST, SUCH HOLDER AND SUCH
OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE
BINDING,
- 72 -
OPERATIVE AND EFFECTIVE AS BETWEEN THE ISSUER TRUST AND SUCH HOLDER
AND SUCH OTHERS.
FIRST EMPIRE STATE CORPORATION,
as Depositor
By:
-----------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as Property Trustee, and
not in its individual capacity
By:
-----------------------------
Name:
Title:
BANKERS TRUST (DELAWARE),
as Delaware Trustee, and not
in its individual capacity
By:
-----------------------------
Name:
Title:
Agreed to and Accepted by,
-----------------------------
Name:
Title: Administrator
-----------------------------
Name:
Title: Administrator
- 73 -
Exhibit A
CERTIFICATE OF TRUST
Exhibit B
FORM OF CERTIFICATE DEPOSITARY AGREEMENT
- 2 -
Exhibit C
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE
DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR
IN COMPLIANCE WITH APPLICABLE LAW AND
SECTION 5.11 OF THE TRUST AGREEMENT
Certificate Number Number of Common Securities
C-__
Certificate Evidencing Common Securities
of
First Empire Capital Trust II
8.277% Common Securities
(liquidation amount $1,000 per Common Security)
First Empire Capital Trust II, a statutory business trust
formed under the laws of the State of Delaware (the "Issuer
Trust"), hereby certifies that First Empire State Corporation (the
"Holder") is the registered owner of _________ (_____) common
securities of the Issuer Trust representing undivided beneficial
interests in the Issuer Trust and has designated the 8.277% Common
Securities (liquidation amount $1,000 per Common Security) (the
"Common Securities"). Except in accordance with Section 5.11 of
the Trust Agreement (as defined below) the Common Securities are
not transferable and any attempted transfer hereof other than in
accordance therewith shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this
certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Trust Agreement of the
Issuer Trust, dated as of June 6, 1997, as the same may be amended
from time to time (the "Trust Agreement") among First Empire State
Corporation, as Depositor, Bankers Trust Company, as Property
Trustee, Bankers Trust (Delaware), as Delaware Trustee, and the
Holders of Trust Securities, including the designation of the
terms of the Common Securities as set forth therein. The Issuer
Trust will furnish a copy of the
- 3 -
Trust Agreement to the Holder without charge upon written request
to the Issuer Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the Holder is bound by
the Trust Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set
forth in the Trust Agreement.
IN WITNESS WHEREOF, one of the Administrators of the Issuer
Trust has executed this certificate this 6th day of June, 1997.
FIRST EMPIRE CAPITAL TRUST II
By:
-----------------------------
Name:
Administrator
COUNTERSIGNED AND REGISTERED:
BANKERS TRUST COMPANY,
as Securities Registrar
By: ________________________
Name:
Authorized Officer
- 4 -
Exhibit D
[IF THE CAPITAL SECURITIES CERTIFICATE IS TO BE A GLOBAL
CAPITAL SECURITIES CERTIFICATE, INSERT -- This Capital Securities
Certificate is a Global Capital Securities Certificate within the
meaning of the Trust Agreement hereinafter referred to and is
registered in the name of a Depositary or a nominee of a
Depositary. This Capital Security Certificate is exchangeable for
Capital Securities Certificates registered in the name of a person
other than the Depositary or its nominee only in the limited
circumstances described in the Trust Agreement and may not be
transferred except as a whole by the Depositary to a nominee of
the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary, except in the limited
circumstances described in the Trust Agreement.
Unless this Capital Security Certificate is presented by an
authorized representative of The Depository Trust Company, a New
York Corporation ("DTC"), to First Empire Capital Trust II or its
agent for registration of transfer, exchange or payment, and any
Capital Security Certificate issued is registered in the name of
such nominee as is requested by an authorized representative of
DTC (and any payment is made to such entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO A PERSON IS WRONGFUL
inasmuch as the registered owner hereof, has an interest herein.]
NO EMPLOYEE BENEFIT OR OTHER PLAN OR INDIVIDUAL RETIREMENT
ACCOUNT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH, A
"PLAN"), NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS"
BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY (A "PLAN ASSET
ENTITY"), AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN, MAY
ACQUIRE OR HOLD THIS CAPITAL SECURITIES CERTIFICATE OR ANY
INTEREST HEREIN, UNLESS SUCH PURCHASE OR HOLDING IS COVERED BY THE
EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23, 95-60,
91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION WITH RESPECT
TO SUCH PURCHASE OR HOLDING AND, IN THE CASE OF ANY PURCHASER OR
HOLDER RELYING ON ANY EXEMPTION OTHER THAN PTCE 96-23, 95-60,
91-38, 90-1 OR 84-14, HAS COMPLIED
- 5 -
WITH ANY REQUEST BY THE DEPOSITOR OR THE ISSUER TRUST FOR AN
OPINION OF COUNSEL OR OTHER EVIDENCE WITH RESPECT TO THE
APPLICABILITY OF SUCH EXEMPTION. ANY PURCHASER OR HOLDER OF THIS
CAPITAL SECURITIES CERTIFICATE OR ANY INTEREST HEREIN THAT IS A
PLAN ASSET ENTITY OR IS PURCHASING SUCH SECURITIES ON BEHALF OF OR
WITH "PLAN ASSETS" OF ANY PLAN WILL BE DEEMED TO HAVE REPRESENTED
BY ITS PURCHASE AND HOLDING HEREOF THAT (A) THE PURCHASE AND
HOLDING OF THE CAPITAL SECURITIES IS COVERED BY THE EXEMPTIVE
RELIEF PROVIDED BY PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION, (B) THE COMPANY AND THE
ADMINISTRATORS ARE NOT "FIDUCIARIES" WITHIN THE MEANING OF SECTION
3(21) OF ERISA AND THE REGULATIONS THEREUNDER, WITH RESPECT TO
SUCH PERSON'S INTEREST IN THE CAPITAL SECURITIES OR THE JUNIOR
SUBORDINATED DEBENTURES, AND (C) IN PURCHASING THE CAPITAL
SECURITIES SUCH PERSON APPROVES THE PURCHASE OF THE JUNIOR
SUBORDINATED DEBENTURES AND THE APPOINTMENT OF THE ISSUER
TRUSTEES.
Certificate Number Number of Capital Securities
P-__ ---------------
$---------------
aggregate liquidation amount
CUSIP NO._________________
Certificate Evidencing Capital Securities
of
First Empire Capital Trust II
8.277% Capital Securities
(liquidation amount $1,000 per Capital Security)
First Empire Capital Trust II, a statutory business trust
formed under the laws of the State of Delaware (the "Issuer Trust"),
hereby certifies that ____________________ (the "Holder") is the
registered owner of $______________ in aggregate liquidation amount
of capital securities of the Trust representing a preferred undivided
beneficial interest in the assets of the Issuer Trust and has
designated the First Empire Capital Trust II 8.277% Capital
Securities (liquidation amount $1,000 per Capital Security) (the
"Capital Securities"). The Capital Securities are transferable on the
books and records of the Issuer Trust, in person or by a duly
authorized attorney, upon surrender of this certificate
- 6 -
duly endorsed and in proper form for transfer as provided in
Section 5.5 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Capital Securities are set forth
in, and this certificate and the Capital Securities represented
hereby are issued and shall in all respects be subject to the
terms and provisions of, the Amended and Restated Trust Agreement
of the Issuer Trust, dated as of June 6, 1997, as the same may be
amended from time to time (the "Trust Agreement"), among First
Empire State Corporation, as Depositor, Bankers Trust Company, as
Property Trustee, Bankers Trust (Delaware), as Delaware Trustee,
and the Holders of Trust Securities, including the designation of
the terms of the Capital Securities as set forth therein. The
Holder is entitled to the benefits of the Guarantee Agreement
entered into by First Empire State Corporation, a New York
corporation, and Bankers Trust Company, as guarantee trustee,
dated as of June 6, 1997 (the "Guarantee Agreement"), to the
extent provided therein. The Issuer Trust will furnish a copy of
the Issuer Trust Agreement and the Guarantee Agreement to the
Holder without charge upon written request to the Issuer Trust at
its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by
the Trust Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set
forth in the Trust Agreement.
- 7 -
IN WITNESS WHEREOF, one of the Administrators of the Issuer
Trust has executed this certificate this 6th day of June, 1997.
FIRST EMPIRE CAPITAL TRUST II
By:
-----------------------------
Name:
Administrator
COUNTERSIGNED AND REGISTERED:
BANKERS TRUST COMPANY,
as Securities Registrar
By: ________________________
Name:
Authorized Officer
- 8 -
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Capital Security to:
--------------------------------------------------------------------
(Insert assignee's social security or tax
identification number)
--------------------------------------------------------------------
--------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints _______________________________
--------------------------------------------------------------------
agent to transfer this Capital Security Certificate on the books of
the Issuer Trust. The agent may substitute another to act for him or
her.
Date:__________________
Signature:
--------------------------------------------
(Sign exactly as your name appears on
the other side of this Capital Security
Certificate)
The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations
and credit unions with membership in an approved signature
guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.
- 9 -
Exhibit 4.2
================================================================================
JUNIOR SUBORDINATED INDENTURE
Between
FIRST EMPIRE STATE CORPORATION
and
BANKERS TRUST COMPANY
(as Trustee)
dated as of
June 6, 1997
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION................................. 2
SECTION 1.1. Definitions......................................... 2
SECTION 1.2. Compliance Certificate and Opinions................. 14
SECTION 1.3. Forms of Documents Delivered to
Trustee............................................. 14
SECTION 1.4. Acts of Holders..................................... 15
SECTION 1.5. Notices, Etc. to Trustee and Company................ 18
SECTION 1.6. Notice to Holders; Waiver........................... 18
SECTION 1.7. Conflict with Trust Indenture Act................... 19
SECTION 1.8. Effect of Headings and Table of
Contents............................................ 19
SECTION 1.9. Successors and Assigns.............................. 19
SECTION 1.10. Separability Clause................................. 20
SECTION 1.11. Benefits of Indenture............................... 20
SECTION 1.12. Governing Law....................................... 20
SECTION 1.13. Non-Business Days................................... 20
ARTICLE II SECURITY FORMS...................................... 20
SECTION 2.1. Forms Generally..................................... 20
SECTION 2.2. Form of Face of Security............................ 22
SECTION 2.3. Form of Reverse of Security......................... 27
SECTION 2.4. Additional Provisions Required in
Global Security..................................... 31
SECTION 2.5. Form of Trustee's Certificate of
Authentication...................................... 32
ARTICLE III THE SECURITIES...................................... 32
SECTION 3.1. Title and Terms..................................... 32
SECTION 3.2. Denominations....................................... 36
SECTION 3.3. Execution, Authentication, Delivery
and Dating.......................................... 36
SECTION 3.4. Temporary Securities................................ 38
SECTION 3.5. Global Securities................................... 39
SECTION 3.6. Registration, Transfer and Exchange
Generally; Certain Transfers and
Exchanges; Securities Act Legends................... 40
SECTION 3.7. Mutilated, Lost and Stolen Securities............... 42
SECTION 3.8. Payment of Interest and Additional
Interest; Interest Rights Preserved................. 43
SECTION 3.9. Persons Deemed Owners............................... 45
SECTION 3.10. Cancellation........................................ 46
SECTION 3.11. Computation of Interest............................. 46
SECTION 3.12. Deferrals of Interest Payment Dates................. 46
SECTION 3.13. Right of Set-Off.................................... 48
SECTION 3.14. Agreed Tax Treatment................................ 48
SECTION 3.15. Shortening or Extension of Stated
Maturity............................................ 49
SECTION 3.16. CUSIP Numbers....................................... 49
ARTICLE IV SATISFACTION AND DISCHARGE.......................... 49
SECTION 4.1. Satisfaction and Discharge of Indenture............. 49
SECTION 4.2. Application of Trust Money.......................... 51
ARTICLE V REMEDIES............................................ 51
SECTION 5.1. Events of Default................................... 51
SECTION 5.2. Acceleration of Maturity; Rescission
and Annulment....................................... 52
SECTION 5.3. Collection of Indebtedness and Suits
for Enforcement by Trustee.......................... 54
SECTION 5.4. Trustee May File Proofs of Claim.................... 55
SECTION 5.5. Trustee May Enforce Claim Without
Possession of Securities............................ 56
SECTION 5.6. Application of Money Collected...................... 56
SECTION 5.7. Limitation on Suits................................. 57
SECTION 5.8. Unconditional Right of Holders to
Receive Principal, Premium and
Interest; Direct Action by Holders
of Capital Securities............................... 57
SECTION 5.9. Restoration of Rights and Remedies.................. 58
SECTION 5.10. Rights and Remedies Cumulative...................... 58
SECTION 5.11. Delay or Omission Not Waiver........................ 59
SECTION 5.12. Control by Holders.................................. 59
SECTION 5.13. Waiver of Past Defaults............................. 59
SECTION 5.14. Undertaking for Costs............................... 60
SECTION 5.15. Waiver of Usury, Stay or Extension Laws............. 61
ARTICLE VI THE TRUSTEE......................................... 61
SECTION 6.1. Certain Duties and Responsibilities................. 61
SECTION 6.2. Notice of Defaults.................................. 62
SECTION 6.3. Certain Rights of Trustee........................... 63
SECTION 6.4. Not Responsible for Recitals or
Issuance of Securities.............................. 64
SECTION 6.5. May Hold Securities................................. 64
SECTION 6.6. Money Held in Trust................................. 64
SECTION 6.7. Compensation and Reimbursement...................... 65
SECTION 6.8. Disqualification; Conflicting
Interests........................................... 66
SECTION 6.9. Corporate Trustee Required;
Eligibility......................................... 66
SECTION 6.10. Resignation and Removal; Appointment
of Successor........................................ 67
SECTION 6.11. Acceptance of Appointment by
- ii -
Successor.......................................... 69
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business............................. 70
SECTION 6.13. Preferential Collection of Claims
Against Company.................................... 71
SECTION 6.14. Appointment of Authenticating Agent................ 71
ARTICLE VII HOLDER'S LISTS AND REPORTS BY TRUSTEE,
PAYING AGENT AND COMPANY........................... 73
SECTION 7.1. Company to Furnish Trustee Names and
Addresses of Holders............................... 73
SECTION 7.2. Preservation of Information,
Communications to Holders.......................... 73
SECTION 7.3. Reports by Trustee and Paying Agent................ 74
SECTION 7.4. Reports by Company................................. 74
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE.................................. 75
SECTION 8.1. Company May Consolidate, Etc., Only
on Certain Terms................................... 75
SECTION 8.2. Successor Company Substituted...................... 76
ARTICLE IX SUPPLEMENTAL INDENTURES............................ 77
SECTION 9.1. Supplemental Indentures Without Consent
of Holders......................................... 77
SECTION 9.2. Supplemental Indentures With Consent
of Holders......................................... 78
SECTION 9.3. Execution of Supplemental Indentures............... 80
SECTION 9.4. Effect of Supplemental Indentures.................. 80
SECTION 9.5. Conformity with Trust Indenture Act................ 81
SECTION 9.6. Reference in Securities to
Supplemental Indentures............................ 81
ARTICLE X COVENANTS.......................................... 81
SECTION 10.1. Payment of Principal, Premium and
Interest........................................... 81
SECTION 10.2. Maintenance of Office or Agency.................... 81
SECTION 10.3. Money for Security Payments to be
Held in Trust...................................... 82
SECTION 10.4. Statement as to Compliance......................... 84
SECTION 10.5. Waiver of Certain Covenants........................ 84
SECTION 10.6. Additional Sums.................................... 84
SECTION 10.7. Additional Covenants............................... 85
SECTION 10.8. Original Issue Discount............................ 87
ARTICLE XI REDEMPTION OF SECURITIES........................... 87
SECTION 11.1. Applicability of This Article...................... 87
SECTION 11.2 Election to Redeem; Notice to Trustee.............. 87
SECTION 11.3. Selection of Securities to be Redeemed............. 88
SECTION 11.4. Notice of Redemption............................... 89
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SECTION 11.5. Deposit of Redemption Price......................... 89
SECTION 11.6. Payment of Securities Called for
Redemption.......................................... 90
SECTION 11.7. Right of Redemption of Securities
Initially Issued to an Issuer Trust................. 90
ARTICLE XII SINKING FUNDS....................................... 91
ARTICLE XIII SUBORDINATION OF SECURITIES......................... 91
SECTION 13.1. Securities Subordinate to Senior
Indebtedness........................................ 91
SECTION 13.2. No Payment When Senior Indebtedness
in Default; Payment Over of Proceeds
Upon Dissolution, Etc............................... 91
SECTION 13.3. Payment Permitted If No Default..................... 94
SECTION 13.4. Subrogation to Rights of Holders of
Senior Indebtedness................................. 94
SECTION 13.5. Provisions Solely to Define Relative
Rights.............................................. 95
SECTION 13.6. Trustee to Effectuate Subordination................. 95
SECTION 13.7. No Waiver of Subordination Provisions............... 95
SECTION 13.8. Notice to Trustee................................... 96
SECTION 13.9. Reliance on Judicial Order or
Certificate of Liquidating Agent.................... 97
SECTION 13.10. Trustee Not Fiduciary for Holders of
Senior Indebtedness................................. 97
SECTION 13.11. Rights of Trustee as Holder of Senior
Indebtedness; Preservation of
Trustee's Rights.................................... 98
SECTION 13.12. Article Applicable to Paying Agents................. 98
SECTION 13.13. Certain Conversions or Exchanges
Deemed Payment...................................... 98
ANNEX A FORM OF RESTRICTED SECURITIES
CERTIFICATE
- iv -
Certain Sections of this Junior Subordinated Indenture relating
to Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Junior Subordinated
Act Section Indenture Section
----------- -----------------
(ss.) 310(a)(1)................................. 6.9
(a)(2).................................. 6.9
(a)(3).................................. Not Applicable
(a)(4).................................. Not Applicable
(a)(5).................................. 6.9
(b)..................................... 6.8, 6.10
(ss.) 311(a).................................... 6.13
(b)..................................... 6.13
(b)(2).................................. 7.3(a)
(ss.) 312(a).................................... 7.1, 7.2(a)
(b)..................................... 7.2(b)
(c)..................................... 7.2(c)
(ss.) 313(a).................................... 7.3(a)
(a)(4).................................. 7.3(a)
(b)..................................... 7.3(b)
(c)..................................... 7.3(a)
(d)..................................... 7.3(c)
(ss.) 314(a).................................... 7.4
(b)..................................... 7.4
(c)(1).................................. 1.2
(c)(2).................................. 1.2
(c)(3).................................. Not Applicable
(e)..................................... 1.2
(ss.) 315(a).................................... 6.1(a)
(b)..................................... 6.2, 7.3
(c)..................................... 6.1(b)
(d)..................................... 6.1(c)
(e)..................................... 5.14
(ss.) 316(a).................................... 5.12
(a)(1)(A)............................... 5.12
(a)(1)(B)............................... 5.13
(a)(2).................................. Not Applicable
(b)..................................... 5.8
(c)..................................... 1.4(f)
(ss.) 317(a)(1)................................. 5.3
(a)(2).................................. 5.4
(b)..................................... 10.3
(ss.) 318(a).................................... 1.7
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
- v -
JUNIOR SUBORDINATED INDENTURE
THIS JUNIOR SUBORDINATED INDENTURE, dated as of June 6, 1997,
between FIRST EMPIRE STATE CORPORATION, a New York corporation (the
"Company"), having its principal office at One M&T Plaza, Buffalo, New
York 14240, and BANKERS TRUST COMPANY, as Trustee, having its principal
office at Four Albany Street, 4th Floor, New York, New York 10006 (the
"Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to
time of its unsecured junior subordinated debt securities in series
(hereinafter called the "Securities") of substantially the tenor
hereinafter provided, including Securities issued to evidence loans
made to the Company from the proceeds from the issuance from time to
time by one or more business trusts (each an "Issuer Trust") of
undivided preferred beneficial interests in the assets of such Issuer
Trusts (the "Capital Securities") and common undivided interests in the
assets of such Issuer Trusts (the "Common Securities" and, collectively
with the Capital Securities, the "Trust Securities"), and to provide
the terms and conditions upon which the Securities are to be
authenticated, issued and delivered; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof, and intending to be legally bound
hereby, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the
singular;
(2) All other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) The words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
(4) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles as in effect at the time of computation;
(5) Whenever the context may require, any gender shall be deemed
to include the other;
(6) Unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture; and
(7) The words "hereby", "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
"Act" when used with respect to any Holder has the meaning
specified in Section 1.4.
"Additional Interest" means the interest, if any, that shall
accrue on any interest on the Securities of any series the payment of
which has not been made on the applicable Interest Payment Date and
which shall accrue at the rate per annum specified or determined as
specified in such Security.
"Additional Sums" has the meaning specified in Section 10.6.
- 2 -
"Additional Taxes" means any additional taxes, duties and other
governmental charges to which an Issuer Trust has become subject from
time to time as a result of a Tax Event.
"Administrator" means, in respect of any Issuer Trust, each Person
appointed in accordance with the related Trust Agreement, solely in
such Person's capacity as Administrator of such Issuer Trust and not in
such Person's individual capacity, or any successor Administrator
appointed as therein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent Member" means any member of, or participant in,
the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein,
the rules and procedures of the Depositary for such Global Security, in
each case to the extent applicable to such transaction and as in effect
from time to time.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Board of Directors" means the board of directors of the Company
or the Executive Committee of the board of directors of the Company (or
any other committee of the board of directors of the Company performing
similar functions) or, for purposes of this Indenture, a committee
designated by the board of directors of the Company (or such
committee), comprised of two or more members of the board of directors
of the Company or officers of the Company, or both.
"Board Resolution" means a copy of a resolution certified by the
Secretary or any Assistant Secretary of the Company to have been duly
adopted by the Board of Directors, or such committee of the Board of
Directors or officers of the Company to which authority to act on
behalf of the Board of Directors
- 3 -
has been delegated, and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday,
(ii) a day on which banking institutions in the City of New York or the
City of Buffalo, New York are authorized or required by law or
executive order to remain closed, or (iii) a day on which the Corporate
Trust Office of the Trustee, or, with respect to the Securities of a
series initially issued to an Issuer Trust, the "Corporate Trust
Office" (as defined in the related Trust Agreement) of the Property
Trustee or the Delaware Trustee under the related Trust Agreement, is
closed for business.
"Capital Securities" has the meaning specified in the first
recital of this Indenture.
"Capital Treatment Event" means, in respect of any Issuer Trust,
the reasonable determination by the Company that, as a result of the
occurrence of any amendment to, or change (including any announced
prospective change) in, the laws (or any rules or regulations
thereunder) of the United States or any political subdivision thereof
or therein, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying
such laws or regulations, which amendment or change is effective or
such pronouncement, action or decision is announced on or after the
date of the issuance of the Capital Securities of such Issuer Trust,
there is more than an insubstantial risk that the Company will not be
entitled to treat an amount equal to the Liquidation Amount (as such
term is defined in the related Trust Agreement) of such Capital
Securities as "Tier 1 Capital" (or the then equivalent thereof) for
purposes of the risk-based capital adequacy guidelines of the Board of
Governors of the Federal Reserve System or the New York State Banking
Department, as then in effect and applicable to the Company.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Common Securities" has the meaning specified in the first recital
of this Indenture.
"Common Stock" means the common stock, par value $5.00 per share,
of the Company.
- 4 -
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor entity shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor entity.
"Company Request" and "Company Order" mean, respectively, the
written request or order signed in the name of the Company by its
Chairman of the Board of Directors, its Vice Chairman of the Board of
Directors, its President or a Vice President, and by its Cashier or an
Assistant Cashier, its Controller or an Assistant Controller, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee
at which at any particular time its corporate trust business shall be
administered.
"Creditor" has the meaning specified in Section 6.7.
"Defaulted Interest" has the meaning specified in Section 3.8.
"Delaware Trustee" means, with respect to any Issuer Trust, the
Person identified as the "Delaware Trustee" in the related Trust
Agreement, solely in its capacity as Delaware Trustee of such Issuer
Trust under such Trust Agreement and not in its individual capacity, or
its successor in interest in such capacity, or any successor Delaware
trustee appointed as therein provided.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more
Global Securities, the Person designated as Depositary by the Company
pursuant to Section 3.1 with respect to such series (or any successor
thereto).
"Discount Security" means any security that provides for an amount
less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
5.2.
"Dollar" or "$" means the currency of the United States of America
that, as at the time of payment, is legal tender for the payment of
public and private debts.
The term "entity" includes a bank, corporation, association,
company, limited liability company, joint-stock company or business
trust.
- 5 -
"Event of Default," unless otherwise specified in the supplemental
indenture creating a series of Securities, has the meaning specified in
Article V.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.4.
"Extension Period" has the meaning specified in Section 3.12.
"Global Security" means a Security in the form prescribed in
Section 2.4 evidencing all or part of a series of Securities, issued to
the Depositary or its nominee for such series, and registered in the
name of such Depositary or its nominee.
"Guarantee" means, with respect to any Issuer Trust, the Guarantee
Agreement executed by the Company for the benefit of the Holders of the
Capital Securities issued by such Issuer Trust as modified, amended or
supplemented from time to time.
"Holder" means a Person in whose name a Security is registered in
the Securities Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of each particular series
of Securities established as contemplated by Section 3.1.
"Institutional Accredited Investor" means an institutional
accredited investor within the meaning of Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act.
"Interest Payment Date" means, as to each series of Securities,
the Stated Maturity of an installment of interest on such Securities.
"Investment Company Event" means the receipt by an Issuer Trust of
an Opinion of Counsel (as defined in the relevant Trust Agreement)
experienced in such matters to the effect that, as a result of the
occurrence of a change in law or regulation or a written change
(including any announced
- 6 -
prospective change) in interpretation or application of law or
regulation by any legislative body, court, governmental agency or
regulatory authority, there is more than an insubstantial risk that
such Issuer Trust is or will be considered an "investment company" that
is required to be registered under the Investment Company Act, which
change or prospective change becomes effective or would become
effective, as the case may be, on or after the date of the issuance of
the Capital Securities of such Issuer Trust.
"Investment Company Act" means the Investment Company Act of 1940
and any statute successor thereto, in each case as amended from time to
time.
"Issuer Trust" has the meaning specified in the first recital of
this Indenture.
"Maturity" when used with respect to any Security means the date
on which the principal of such Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified
in Section 5.1(3).
"Officers' Certificate" means a certificate signed by the Chairman
of the Board and Chief Executive Officer, President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary, of the Depositor, and delivered to the party
provided herein. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Indenture
shall include:
(a) a statement by each officer signing the Officers' Certificate
that such officer has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by such officer in rendering the Officers'
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
- 7 -
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for or an employee of the Company or any Affiliate of the
Company.
"Original Issue Date" means the date of issuance specified as such
in each Security.
"Outstanding" means, when used in reference to any Securities, as
of the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent in
trust for the Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or that have been paid
pursuant to Section 3.6, unless proof satisfactory to the Trustee is
presented that any such Securities are held by Holders in whose hands
such Securities are valid, binding and legal obligations of the
Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or such other obligor
(other than, for the avoidance of doubt, the Issuer Trust to which
Securities of the applicable series were initially issued) shall be
disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or
waiver, only Securities that the Trustee knows to be so owned shall be
so disregarded. Securities so owned that have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or such
other obligor (other than, for the avoidance of doubt, such Issuer
Trust). Upon the written request of the
- 8 -
Trustee, the Company shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known by
the Company to be owned or held by or for the account of the Company,
or any other obligor on the Securities or any Affiliate of the Company
or such obligor (other than, for the avoidance of doubt, such Issuer
Trust), and, subject to the provisions of Section 6.1, the Trustee
shall be entitled to accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any
such determination.
"Outstanding Capital Securities" means the $150,000,000 aggregate
liquidation amount of 8.234% Capital Securities issued by First Empire
Capital Trust I.
"Paying Agent" means the Trustee or any Person authorized by the
Company to pay the principal of (or premium, if any) or interest on, or
other amounts in respect of any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency
or political subdivision thereof.
"Place of Payment" means, with respect to the Securities of any
series, the place or places where the principal of (and premium, if
any) and interest on the Securities of such series are payable pursuant
to Section 3.1.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security. For the purposes of this
definition, any security authenticated and delivered under Section 3.7
in lieu of a mutilated, destroyed, lost or stolen Security shall be
deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Principal Subsidiary Bank" means (i) any banking subsidiary of
the Company the consolidated assets of which constitute 20% or more of
the consolidated assets of the Company and its consolidated
subsidiaries, (ii) any other banking subsidiary designated as a
Principal Subsidiary Bank pursuant to a Board Resolution and set forth
in an Officers' Certificate delivered to the Trustee, and (iii) any
banking subsidiary of the Company that owns, directly or indirectly,
any voting securities, or options, warrants or rights to subscribe for
or purchase voting securities, of any Principal Subsidiary Bank under
clause (i) or (ii), and in the case of
- 9 -
clause (i), (ii) or (iii) their respective successors (whether by
consolidation, merger, conversion, transfer of substantially all their
assets and business or otherwise) so long as any such successor is a
banking subsidiary (in the case of clause (i) or (ii)) or a subsidiary
(in the case of clause (iii)) of the Company.
"Proceeding" has the meaning specified in Section 13.2.
"Property Trustee" means, with respect to any Issuer Trust, the
Person identified as the "Property Trustee" in the related Trust
Agreement, solely in its capacity as Property Trustee of such Issuer
Trust under such Trust Agreement and not in its individual capacity, or
its successor in interest in such capacity, or any successor property
trustee appointed as therein provided.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to
this Indenture or the terms of such Security.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date with respect to the Securities of a series means, unless
otherwise provided pursuant to Section 3.1 with respect to Securities
of such series, the date that is the May 15 or November 15 next
preceding such Interest Payment Date (whether or not a Business Day).
"Responsible Officer", when used with respect to the Property
Trustee means any officer assigned to the Corporate Trust Office,
including any managing director, vice president, assistant vice
president, assistant treasurer, assistant secretary or any other
officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and having
direct responsibility for the administration of this Indenture, and
also, with respect to a particular matter, any other officer to whom
such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Restricted Security" means each Security required pursuant to
Section 3.6(c) to bear a Restricted Securities Legend.
"Restricted Securities Certificate" means a certificate
substantially in the form set forth in Annex A.
- 10 -
"Restricted Securities Legend" means a legend substantially in the
form of the legend required in the form of Security set forth in
Section 2.2 to be placed upon a Restricted Security.
"Rights Plan" means any plan of the Company providing for the
issuance by the Company to all holders of its Common Stock, par value
$5.00 per share, of rights entitling the holders thereof to subscribe
for or purchase shares of any class or series of capital stock of the
Company which rights (i) are deemed to be transferred with such shares
of such Common Stock, (ii) are not exercisable, and (iii) are also
issued in respect of future issuances of such Common Stock, in each
case until the occurrence of a specified event or events.
"Securities" or "Security" means any debt securities or debt
security, as the case may be, authenticated and delivered under this
Indenture.
"Securities Act" means the Securities Act of 1933, as modified,
amended or supplemented from time to time.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 3.6.
"Senior Indebtedness" means, whether recourse is to all or a
portion of the assets of the Company and whether or not contingent, (i)
every obligation of the Company for money borrowed, (ii) every
obligation of the Company evidenced by bonds, debentures, notes or
other similar instruments, including obligations incurred in connection
with the acquisition of property, assets or businesses, (iii) every
reimbursement obligation of the Company with respect to letters of
credit, bankers' acceptances or similar facilities issued for the
account of the Company, (iv) every obligation of the Company 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), (v) every capital lease obligation of the
Company, (vi) every obligation of the Company for claims (as defined in
Section 101(4) of the United States Bankruptcy Code of 1978, as
amended) in respect of derivative products such as interest and foreign
exchange rate contracts, commodity contracts and similar arrangements,
and (vii) every obligation of the type referred to in clauses (i)
through (vi) of another person and all dividends of another person the
payment of which, in either case, the Company has guaranteed or is
responsible or liable, directly or indirectly, as obligor or otherwise;
provided that "Senior Indebtedness" shall not
- 11 -
include (i) any obligations which, by their terms, are expressly stated
to rank pari passu in right of payment with, or to not be superior in
right of payment to, the Junior Subordinated Debentures, (ii) any
Senior Indebtedness 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, (iii) any indebtedness of the Company to any of its
subsidiaries, (iv) indebtedness to any employee of the Company, or (v)
any indebtedness in respect of debt securities issued to any trust, or
a trustee of such trust, partnership or other entity affiliated with
the Company that is a financing entity of the Company in connection
with the issuance of such financing entity of securities that are
similar to the Capital Securities including the Outstanding Capital
Securities.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.8.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified pursuant to the terms of such Security as the fixed date on
which the principal of such Security or such installment of principal
or interest is due and payable, as such date may, in the case of such
principal, be shortened or extended as provided pursuant to the terms
of such Security and this Indenture.
"Subsidiary" means an entity more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company
or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For purposes of this definition, "voting stock"
means stock that ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of
stock has such voting power by reason of any contingency.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt
as that evidenced by, such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under
Section 3.7 in exchange for or in lieu of a mutilated, destroyed, lost
or stolen Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
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"Tax Event" means the receipt by an Issuer Trust of an Opinion of
Counsel (as defined in the relevant Trust Agreement) experienced in
such matters 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 or taxing authority thereof or therein, or as a result of
any official or administrative pronouncement or action 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 Capital Securities of
such Issuer Trust, there is more than an insubstantial risk that (i)
such Issuer Trust is, or will be within 90 days of the delivery of such
Opinion of Counsel, subject to United States Federal income tax with
respect to income received or accrued on the corresponding series of
Securities issued by the Company to such Issuer Trust, (ii) interest
payable by the Company on such corresponding series of Securities is
not, or within 90 days of the delivery of such Opinion of Counsel will
not be, deductible by the Company, in whole or in part, for United
States Federal income tax purposes, or (iii) such Issuer Trust is, or
will be within 90 days of the delivery of such Opinion of Counsel,
subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"Trust Agreement" means, with respect to any Issuer Trust, the
trust agreement or other governing instrument of such Issuer Trust.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture, solely in its capacity as such and not in
its individual capacity, until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder and, if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
modified, amended or supplemented from time to time, except as provided
in Section 9.5.
"Trust Securities" has the meaning specified in the first recital
of this Indenture.
"Vice President," when used with respect to the Company, means any
duly appointed vice president, whether or not
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designated by a number or a word or words added before or
after the title "vice president."
SECTION 1.2. Compliance Certificate and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent (including covenants compliance with which
constitutes a condition precedent), if any, provided for in this
Indenture relating to the proposed action have been complied with and
an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent (including covenants compliance with which
constitutes a condition precedent), if any, have been complied with,
except that in the case of any such application or request as to which
the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificates provided pursuant to Section 10.4) shall include:
(1) a statement by each individual signing such certificate or
opinion that such individual has read such covenant or condition and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions of
such individual contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he or she
has made such examination or investigation as 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
(4) a statement as to whether, in the opinion of such individual,
such condition or covenant has been complied with.
SECTION 1.3. Forms of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified
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by, or covered by the opinion of, only one such Person, or that they be
so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to matters upon which his or
her certificate or opinion is based are erroneous. Any such certificate
or Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect
to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions,
or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
to or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments is or are delivered to the Trustee, and,
where it is hereby expressly required, to the Company. Such instrument
or instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section
6.1) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by the certificate of any notary public or other
officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to
him or her the execution thereof. Where such execution is by a Person
acting in other than his or her individual capacity, such certificate
or affidavit shall also constitute sufficient proof of his or her
authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the
same, may also be provided in any other manner that the Trustee deems
sufficient and in accordance with such reasonable rules as the Trustee
may determine.
(d) The ownership of Securities shall be proved by the Securities
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall
bind every future Holder of the same Security and the Holder of every
Security issued upon the transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
(f) The Company may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any series
entitled to give, make or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders of
Securities of such series, provided that the Company may not set a
record date for, and the provisions of this paragraph shall not apply
with respect to, the giving or making of any notice, declaration,
request or direction referred to in the next succeeding paragraph. If
any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and
no other Holders, shall be entitled to take the relevant action,
whether or not such Holders remain Holders after such record date,
provided that no such action shall be effective hereunder unless taken
on or prior to the applicable Expiration Date (as defined below) by
Holders of the requisite principal amount of Outstanding Securities of
such series on such record date. Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any
action for which a record date has
- 16 -
previously been set pursuant to this paragraph (whereupon the record
date previously set shall automatically and with no action by any
Person be cancelled and of no effect), and nothing in this paragraph
shall be construed to render ineffective any action taken by Holders of
the requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Trustee
in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 1.6.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series
entitled to join in the giving or making of (i) any Notice of Default,
(ii) any declaration of acceleration referred to in Section 5.2, (iii)
any request to institute proceedings referred to in Section 5.7(2), or
(iv) any direction referred to in Section 5.12, in each case with
respect to Securities of such series. If any record date is set
pursuant to this paragraph, the Holders of Outstanding Securities of
such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction,
whether or not such Holders remain Holders after such record date,
provided that no such action shall be effective hereunder unless taken
on or prior to the applicable Expiration Date by Holders of the
requisite principal amount of Outstanding Securities of such series on
such record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action for
which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect) and nothing in
this paragraph shall be construed to render ineffective any action
taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the Company's expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date
to be given to the Company in writing and to each Holder of Securities
of the relevant series in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the
party hereto that sets such record date may designate any day as the
"Expiration Date" and from time to
- 17 -
time may change the Expiration Date to any earlier or later day,
provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities of the relevant series in the
manner set forth in Section 1.6 on or prior to the existing Expiration
Date. If an Expiration Date is not designated with respect to any
record date set pursuant to this Section, the party hereto that set
such record date shall be deemed to have initially designated the 180th
day after such record date as the Expiration Date with respect thereto,
subject to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
(g) Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do
so with regard to all or any part of the principal amount of such
Security or by one or more duly appointed agents each of which may do
so pursuant to such appointment with regard to all or any part of such
principal amount.
SECTION 1.5. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, any holder of Capital Securities or
the Company shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or
(2) the Company by the Trustee, any Holder or any holder of
Capital Securities shall be sufficient for every purpose (except as
otherwise provided in Section 5.1) hereunder if in writing and mailed,
first class, postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing
to the Trustee by the Company.
SECTION 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed,
- 18 -
first class postage prepaid, to each Holder affected by such event, at
the address of such Holder as it appears in the Securities Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. If, by reason of the
suspension of or irregularities in regular mail services or for any
other reason, it shall be impossible or impracticable to mail notice of
any event to Holders when said notice is required to be given pursuant
to any provision of this Indenture or of the relevant Securities, then
any manner of giving such notice as shall be satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice. In
any case where notice to Holders is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled
to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance
upon such waiver.
SECTION 1.7. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to
be a part of and govern this Indenture, the provision of the Trust
Indenture Act shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case
may be.
SECTION 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
- 19 -
SECTION 1.10. Separability Clause.
If any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and
their successors and assigns, the holders of Senior Indebtedness, the
Holders of the Securities and, to the extent expressly provided in
Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and 9.2, the holders of Capital
Securities, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 1.12. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
SECTION 1.13. Non-Business Days.
If any Interest Payment Date, Redemption Date or Stated Maturity
of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or the Securities) payment of
interest or principal (and premium, if any) or other amounts in respect
of such Security need not be made on such date, but may be made on the
next succeeding Business Day (and no interest shall accrue in respect
of the amounts whose payment is so delayed for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be, until such next succeeding Business Day) except
that, if such Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day
(in each case with the same force and effect as if made on the Interest
Payment Date or Redemption Date or at the Stated Maturity).
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally.
The Securities of each series and the Trustee's
certificate of authentication shall be in substantially the
- 20 -
forms set forth in this Article, or in such other form or forms as
shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters,
numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with
applicable tax laws or the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
securities, as evidenced by their execution of the Securities. If the
form of Securities of any series is established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of
the Company Order contemplated by Section 3.3 with respect to the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be
substantially in the form set forth in this Article.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods, if required
by any securities exchange on which the Securities may be listed, on a
steel engraved border or steel engraved borders or may be produced in
any other manner permitted by the rules of any securities exchange on
which the Securities may be listed, all as determined by the officers
executing such Securities, as evidenced by their execution of such
Securities.
Securities distributed to holders of Global Capital Securities (as
defined in the applicable Trust Agreement) upon the dissolution of an
Issuer Trust shall be distributed in the form of one or more Global
Securities registered in the name of a Depositary or its nominee, and
deposited with the Securities Registrar, as custodian for such
Depositary, or with such Depositary, for credit by the Depositary to
the respective accounts of the beneficial owners of the Securities
represented thereby (or such other accounts as they may direct).
Securities distributed to holders of Capital Securities other than
Global Capital Securities upon the dissolution of an Issuer Trust shall
not be issued in the form of a Global Security or any other form
intended to facilitate book-entry trading in beneficial interests in
such Securities.
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SECTION 2.2. Form of Face of Security.
FIRST EMPIRE STATE CORPORATION
[Title of Security]
[If the Security is a Restricted Security, insert -- THE
SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) BY ANY
INITIAL INVESTOR THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT, (I) TO A PERSON WHO THE
TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (II) IN AN OFFSHORE TRANSACTION COMPLYING WITH THE PROVISIONS OF
RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, OR (III)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (B) BY AN INITIAL
INVESTOR THAT IS A QUALIFIED INSTITUTIONAL BUYER OR BY ANY SUBSEQUENT
INVESTOR, AS SET FORTH IN (A) ABOVE AND, IN ADDITION, TO AN
INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER
JURISDICTIONS OF THE UNITED STATES. THE HOLDER OF THIS SECURITY AGREES
THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS. SECURITIES OWNED
BY AN INITIAL INVESTOR THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER MAY
NOT BE HELD IN GLOBAL FORM AND MAY NOT BE TRANSFERRED WITHOUT
CERTIFICATION THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS, AS PROVIDED IN THE INDENTURE REFERRED TO BELOW. NO
REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION
PROVIDED BY RULE 144 FOR RESALES OF THE CAPITAL SECURITIES.]
No. $
FIRST EMPIRE STATE CORPORATION, a New York corporation
(hereinafter called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _________________________________
______________________, or registered assigns, the principal sum of
________ Dollars on ________, [if the Security is a Global Security,
then insert, if applicable--, or such other principal amount
represented hereby as may be set forth in the records of the Securities
Registrar hereinafter referred to in accordance with the Indenture,]
[; provided that the Company may (i) shorten the Stated Maturity of the
principal of this Security to a date not earlier than ________, and
- 22 -
(ii) extend the Stated Maturity of the principal of this Security at
any time on one or more occasions, subject to certain conditions
specified in Section 3.15 of the Indenture, but in no event to a date
later than _________]. The Company further promises to pay interest on
said principal from ______________________ , or from the most recent
Interest Payment Date to which interest has been paid or duly provided
for, [monthly] [quarterly] [semi-annually] [if applicable, insert--
(subject to deferral as set forth herein)] in arrears on [insert
applicable Interest Payment Dates] of each year, commencing ___________
at the rate of ___% per annum, [if applicable insert--together with
Additional Sums, if any, as provided in Section 10.6 of the Indenture,]
until the principal hereof is paid or duly provided for or made
available for payment [if applicable, insert--; provided that any
overdue principal, premium or Additional Sums and any overdue
installment of interest shall bear Additional Interest at the rate of %
per annum (to the extent that the payment of such interest shall be
legally enforceable), compounded [monthly] [quarterly] [semi-annually],
from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on demand].
The amount of interest payable for any period less than a full interest
period shall be computed on the basis of a 360-day year of twelve
30-day months and the actual days elapsed in a partial month in such
period. The amount of interest payable for any full interest period
shall be computed by dividing the applicable rate per annum by
[twelve/four/two]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest installment [if applicable,
insert--, which shall be the [______________ or ____________] (whether
or not a Business Day), as the case may be, next preceding such
Interest Payment Date]. Any such interest not so punctually paid or
duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less
than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be
listed, and upon such notice as may be required by such exchange, all
as more fully provided in said Indenture.
- 23 -
[If applicable, insert--So long as no Event of Default has
occurred and is continuing, the Company shall have the right, at any
time during the term of this Security, from time to time to defer the
payment of interest on this Security for up to __________ consecutive
[monthly] [quarterly] [semi-annual] interest payment periods with
respect to each deferral period (each an "Extension Period") [if
applicable, insert--, during which Extension Periods the Company shall
have the right to make partial payments of interest on any Interest
Payment Date, and] at the end of which the Company shall pay all
interest then accrued and unpaid including Additional Interest, as
provided below; provided, however, that no Extension Period shall
extend beyond the Stated Maturity of the principal of this Security [If
Stated Maturity can be shortened or extended, insert--, as then in
effect,] and no such Extension Period may end on a date other than an
Interest Payment Date; and provided, further, however, that during any
such Extension Period, the Company shall not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's capital
stock, or (ii) make any payment of principal of or interest or premium,
if any, on or repay, repurchase or redeem any debt securities of the
Company that rank pari passu in all respects with or junior in interest
to this Security, including the Company's obligations associated with
the Outstanding Capital Securities (other than (a) repurchases,
redemptions or other acquisitions of shares of capital stock of the
Company in connection with any employment contract, benefit plan or
other similar arrangement with or for the benefit of any one or more
employees, officers, directors or consultants, in connection with a
dividend reinvestment or stockholder stock purchase plan or in
connection with the issuance of capital stock of the Company (or
securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to the
applicable Extension Period, (b) as a result of an exchange or
conversion of any class or series of the Company's capital stock (or
any capital stock of a Subsidiary of the Company) for any class or
series of the Company's capital stock or of any class or series of the
Company's indebtedness for any class or series of the Company's capital
stock, (c) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged, (d) any declaration of a dividend in connection with any
Rights Plan, or the issuance of rights, stock or other property under
any Rights Plan, or the redemption or repurchase of rights pursuant
thereto, or (e) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock
- 24 -
issuable upon exercise of such warrants, options or other rights is the
same stock as that on which the dividend is being paid or ranks pari
passu with or junior to such stock). Prior to the termination of any
such Extension Period, the Company may further defer the payment of
interest, provided that no Extension Period shall exceed ____________
consecutive [monthly] [quarterly] [semi-annual] interest payment
periods, extend beyond the Stated Maturity of the principal of this
Security or end on a date other than an Interest Payment Date. Upon the
termination of any such Extension Period and upon the payment of all
accrued and unpaid interest and any Additional Interest then due on any
Interest Payment Date, the Company may elect to begin a new Extension
Period, subject to the above conditions. No interest shall be due and
payable during an Extension Period, except at the end thereof, but each
installment of interest that would otherwise have been due and payable
during such Extension Period shall bear Additional Interest (to the
extent that the payment of such interest shall be legally enforceable)
at the rate of ___% per annum, compounded [monthly] [quarterly]
[semi-annually] and calculated as set forth in the first paragraph of
this Security, from the date on which such amounts would otherwise have
been due and payable until paid or made available for payment. The
Company shall give the Holder of this Security and the Trustee notice
of its election to begin any Extension Period at least one Business Day
prior to the next succeeding Interest Payment Date on which interest on
this Security would be payable but for such deferral [if applicable,
insert--or so long as such securities are held by [insert name of
applicable Issuer Trust], at least one Business Day prior to the
earlier of (i) the next succeeding date on which Distributions on the
Capital Securities of such Issuer Trust would be payable but for such
deferral, and (ii) the date on which the Property Trustee of such
Issuer Trust is required to give notice to holders of such Capital
Securities of the record date or the date such Distributions are
payable, but in any event not less than one Business Day prior to such
record date.]
Payment of the principal of (and premium, if any) and interest on
this Security will be made at the office or agency of the Company
maintained for that purpose in the United States, in such coin or
currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts [if applicable,
insert--; provided, however that at the option of the Company payment
of interest may be made (i) by check mailed to the address of the
Person entitled thereto as such address shall appear in the Securities
Register, or (ii) if to a Holder of $1,000,000 or more in aggregate
principal amount of this Security, by wire transfer in immediately
available funds upon written request
- 25 -
to the Trustee not later than 15 calendar days prior to the date on
which the interest is payable].
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payments
to the prior payment in full of all Senior Indebtedness, and this
Security is issued subject to the provisions of the Indenture with
respect thereto. Each Holder of this Security, by accepting the same,
(a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee on his or her behalf to take such actions as may be
necessary or appropriate to 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,
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.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
FIRST EMPIRE STATE CORPORATION
By:
---------------------------
Name:
Title:
Attest:
--------------------------------
Secretary or Assistant Secretary
- 26 -
SECTION 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued
in one or more series under the Junior Subordinated Indenture, dated as
of June 6, 1997 (herein called the "Indenture"), between the Company
and Bankers Trust Company, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee,
the holders of Senior Indebtedness and the Holders of the Securities,
and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series
designated on the face hereof [if applicable, insert--, limited in
aggregate principal amount to $ ____________].
All terms used in this Security that are defined in the Indenture
[if applicable, insert-- or in [insert name of trust agreement], dated
as of _________ (as modified, amended or supplemented from time to time
the "Trust Agreement"), relating to [insert name of Issuer Trust] [the
("Issuer Trust") among the Company, as Depositor, the Trustees named
therein and the Holders from time to time of the Trust Securities
issued pursuant thereto] shall have the meanings assigned to them in
the Indenture [if applicable, insert--or the Trust Agreement, as the
case may be].
[If applicable, insert--The Company has the right to redeem this
Security (i) on or after _________, in whole at any time or in part
from time to time, or (ii) in whole (but not in part), at any time
within 90 days following the occurrence and during the continuation of
a Tax Event, Investment Company Event, or Capital Treatment Event, in
each case at a Redemption Price described below, and subject to
possible regulatory approval.
[If applicable, insert--In the case of a redemption on or after
__________, the Redemption Price shall equal the following prices,
expressed in percentages of the principal amount hereof, together with
accrued interest to but excluding the date fixed for redemption, if
redeemed during the 12-month period beginning __________:
Redemption
Year Price
---- ----------
- 27 -
and 100% on or after __________.
In the case of a redemption on or after __________ following a Tax
Event, Investment Company Event or Capital Treatment Event, the
Redemption Price shall equal the Redemption Price then applicable to a
redemption under the
preceding paragraph.
In the case of a redemption prior to __________ following a Tax
Event, Investment Company Event or Capital Treatment Event in respect
of the Issuer Trust, the Redemption Price shall equal the Make-Whole
Amount for a corresponding $__________ principal amount hereof,
together with accrued interest to but excluding the date fixed for
redemption, which Make-Whole Amount will be equal to the greater of (i)
100% of the principal amount hereof, and (ii) as determined by a
Quotation Agent (as defined in the Trust Agreement), the sum of the
present value of 100% of the principal amount that would be payable
with respect hereto on __________, together with the present values of
scheduled payments of interest from the date fixed for redemption to
__________, in each case discounted to the date fixed for redemption on
a [monthly] [quarterly] [semi-annual] basis (assuming a 360-day year
consisting of 30-day months) at the Adjusted Treasury Rate (as defined
in the Trust Agreement).]
[If the Security is subject to redemption of any kind, insert--In
the event of redemption of this Security in part only, a new Security
or Securities of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert--The Indenture contains provisions for
defeasance at any time [of the entire indebtedness of this Security]
[or] [certain restrictive covenants and Events of Default with respect
to this Security] [, in each case] upon compliance by the Company with
certain conditions set forth in the Indenture.]
The Indenture permits, with certain exceptions as therein
provided, the Company and the Trustee at any time to enter into a
supplemental indenture or indentures for the purpose of modifying in
any manner the rights and obligations of the Company and of the Holders
of the Securities, with the consent of the Holders of not less than a
majority in principal amount of the Outstanding Securities of each
series to be affected by such supplemental indenture. The Indenture
also contains
- 28 -
provisions permitting Holders of specified percentages in principal
amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or
not notation of such consent or waiver is made upon this Security.
[If the Security is not a Discount Security, insert--As provided
in and subject to the provisions of the Indenture, if an Event of
Default with respect to the Securities of this series at the time
Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of this series may declare the
principal amount of all the Securities of this series to be due and
payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders) [if applicable, insert--, provided that,
if upon an Event of Default, the Trustee or such Holders fail to
declare the principal of all the outstanding Securities of this series
to be immediately due and payable, the Holders of at least 25% in
aggregate Liquidation Amount of the Capital Securities then outstanding
shall have the right to make such declaration by a notice in writing to
the Company and the Trustee]; and upon any such declaration the
principal amount of and the accrued interest (including any Additional
Interest) on all the Securities of this series shall become immediately
due and payable, provided that the payment of principal and interest
(including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article XIII of the Indenture.]
[If the Security is a Discount Security, insert--As provided in
and subject to the provisions of the Indenture, if an Event of Default
with respect to the Securities of this series at the time Outstanding
occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of this series may declare an amount of
principal of the Securities of this series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders) [if applicable, insert--, provided that, if upon
an Event of Default, the Trustee or such Holders fail to declare such
principal amount of the
- 29 -
Outstanding Securities of this series to be immediately due and
payable, the holders of at least 25% in aggregate Liquidation Amount of
the Capital Securities then outstanding shall have the right to make
such declaration by a notice in writing to the Company and the Trustee.
The principal amount payable upon such acceleration shall be equal
to--insert formula for determining the amount]. Upon any such
declaration, such amount of the principal of and the accrued interest
(including any Additional Interest) on all the Securities of this
series shall become immediately due and payable, provided that the
payment of such principal and interest (including any Additional
Interest) on all the Securities of this series shall remain
subordinated to the extent provided in Article XIII of the Indenture.
Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in
each case to the extent that the payment of such interest shall be
legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and premium and interest, if any, on
this Security shall terminate.]
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal
of (and premium, if any) and interest (including Additional Interest)
on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Securities Register, upon surrender of this Security for registration
of transfer at the office or agency of the Company maintained under
Section 10.2 of the Indenture for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to
the Company and the Securities Registrar duly executed by, the Holder
hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Securities of this series, of like tenor, of
authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $_________ and any integral
multiple of $_________ in excess thereof. As provided in the Indenture
and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of
Securities of this
- 30 -
series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered
as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall
be affected by notice to the contrary.
The Company and, by its acceptance of this Security or a
beneficial interest therein, the Holder of, and any Person that
acquires a beneficial interest in, this Security agrees that for United
States Federal, state and local tax purposes it is intended that this
Security constitute indebtedness.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
THIS SECURITY IS A DIRECT AND UNSECURED OBLIGATION OF THE COMPANY,
DOES NOT EVIDENCE DEPOSITS AND IS NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION OR ANY OTHER INSURER OR GOVERNMENT AGENCY. THIS
SECURITY WILL BE SUBORDINATE TO THE CLAIMS OF DEPOSITORS AND GENERAL
CREDITORS OF THE COMPANY AND WILL BE INELIGIBLE AS COLLATERAL TO SECURE
A LOAN FROM THE COMPANY.
SECTION 2.4. Additional Provisions Required in Global Security.
Unless otherwise specified as contemplated by Section 3.1, any
Global Security issued hereunder shall, in addition to the provisions
contained in Sections 2.2 and 2.3, bear a legend in substantially the
following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
- 31 -
INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
SECTION 2.5. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: _______________ BANKERS TRUST COMPANY,
as Trustee
By:
---------------------------
Authorized Officer
ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to
Section 3.3, set forth or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities as a series:
(a) the title of the securities of such series, which shall
distinguish the Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
- 32 -
Securities of the series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.6
and except for any Securities that, pursuant to Section 3.3, are deemed
never to have been authenticated and delivered hereunder); provided,
however, that the authorized aggregate principal amount of such series
may be increased above such amount by a Board Resolution to such
effect;
(c) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest;
(d) the Stated Maturity or Maturities on which the principal of
the Securities of such series is payable or the method of determination
thereof, and any dates on which or circumstances under which, the
Company shall have the right to extend or shorten such Stated Maturity
or Maturities;
(e) the rate or rates, if any, at which the Securities of such
series shall bear interest, if any, the rate or rates and extent to
which Additional Interest, if any, shall be payable with respect to any
Securities of such series, the date or dates from which any such
interest or Additional Interest shall accrue, the Interest Payment
Dates on which such interest shall be payable, the right, pursuant to
Section 3.12 or as otherwise set forth therein, of the Company to defer
or extend an Interest Payment Date, and the Regular Record Date for the
interest payable on any Interest Payment Date or the method by which
any of the foregoing shall be determined;
(f) the place or places where the principal of (and premium, if
any) and interest or Additional Interest on the Securities of such
series shall be payable, the place or places where the Securities of
such series may be presented for registration of transfer or exchange,
any restrictions that may be applicable to any such transfer or
exchange in addition to or in lieu of those set forth herein and the
place or places where notices and demands to or upon the Company in
respect of the Securities of such series may be made;
(g) the period or periods within or the date or dates on which, if
any, the price or prices at which and the terms and conditions upon
which the Securities of such series may be redeemed, in whole or in
part, at the option of the Company, and if other than by a Board of
Resolution, the manner in which any election by the Company to redeem
such Securities shall be evidenced;
- 33 -
(h) the obligation or the right, if any, of the Company to redeem,
repay or purchase the Securities of such series pursuant to any sinking
fund, amortization or analogous provisions, or at the option of a
Holder thereof, and the period or periods within which, the price or
prices at which, the currency or currencies (including currency unit or
units) in which and the other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
(i) the denominations in which any Securities of such series shall
be issuable;
(j) if other than Dollars, the currency or currencies (including
any currency unit or units) in which the principal of (and premium, if
any) and interest and Additional Interest, if any, on the Securities of
the series shall be payable, or in which the Securities of the series
shall be denominated and the manner of determining the equivalent
thereof in Dollars for purposes of the definition of Outstanding;
(k) the additions, modifications or deletions, if any, in the
Events of Default or covenants of the Company set forth herein with
respect to the Securities of such series;
(l) if, other than the principal amount thereof, the portion of
the principal amount of Securities of such series that shall be payable
upon declaration of acceleration of the Maturity thereof;
(m) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to
be the principal amount of such Securities as of any such date for any
purpose thereunder or hereunder, including the principal amount thereof
which shall be due and payable upon any Maturity other than the Stated
Maturity or which shall be deemed to be Outstanding as of any date
prior to the Stated Maturity (or, in any such case, the manner in which
such amount deemed to be the principal amount shall be determined);
(n) if applicable, that the Securities of the series, in whole or
in any specified part, shall be defeasible and, if other than by a
Board Resolution, the manner in which any election by the Company to
defease such Securities shall be evidenced;
(o) the additions or changes, if any, to this Indenture with
respect to the Securities of such series as shall be
- 34 -
necessary to permit or facilitate the issuance of the Securities of
such series in bearer form, registrable or not registrable as to
principal, and with or without interest coupons;
(p) any index or indices used to determine the amount of payments
of principal of and premium, if any, on the Securities of such series
or the manner in which such amounts will be determined;
(q) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any legend or legends that shall be
borne by any such Global Security in addition to or in lieu of that set
forth in Section 2.4 and any circumstances in addition to or in lieu of
those set forth in Section 3.5 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any
transfer of such Global Security in whole or in part may be registered,
in the name or names of Persons other than the Depositary for such
Global Security or a nominee thereof;
(r) the appointment of any Paying Agent or agents for the
Securities of such series;
(s) the terms of any right to convert or exchange Securities of
such series into any other securities or property of the Company, and
the additions or changes, if any, to this Indenture with respect to the
Securities of such series to permit or facilitate such conversion or
exchange;
(t) if such Securities are to be issued to an Issuer Trust, the
form or forms of the Trust Agreement and Guarantee relating thereto;
(u) if, other than as set forth herein, the relative degree, if
any, to which the Securities or the series shall be senior to or be
subordinated to other series of Securities in right of payment, whether
such other series of Securities are Outstanding or not;
(v) any addition to or change in the Events of Default which
applies to any Securities of the series and any change in the right of
the Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 5.2;
- 35 -
(w) any addition to or change in the covenants set forth in
Article X which applies to Securities of the series; and
(x) any other terms of the Securities of such series (which terms
shall not be inconsistent with the provisions of this Indenture, except
as permitted by Section 9.1(6)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided
herein or in or pursuant to such Board Resolution and set forth, or
determined in the manner provided, in such Officers' Certificate or in
any indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of
the Officers' Certificate setting forth the terms of the series.
The securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article XIII.
SECTION 3.2. Denominations.
The Securities of each series shall be in registered form without
coupons and shall be issuable in denominations specified as
contemplated by Section 3.1(i).
SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or
one of its Vice Presidents, under its corporate seal reproduced or
impressed thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of
such Securities. At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Securities of
any series executed by the Company to the Trustee for
- 36 -
authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the
Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by
or pursuant to one or more Board Resolutions as permitted by Sections
2.1 and 3.1, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that
such form has been established in conformity with the provisions
of this Indenture;
(2) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 3.1, that
such terms have been established in conformity with the provisions
of this Indenture; and
(3) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner that is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and the preceding
paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Company
Order and Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the authentication of each Security
of such series if such documents are delivered at or prior to the
authentication
- 37 -
upon original issuance of the first Security of such series to be
issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such
Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by the manual signature of
one of its authorized officers, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such security
has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.10, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 3.4. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon receipt of a Company Order the
Trustee shall authenticate and deliver, temporary Securities that are
printed, lithographed, typewritten, mimeographed or otherwise produced,
in any denomination, substantially of the tenor of the definitive
Securities of such series in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities, the
temporary Securities shall be exchangeable for definitive Securities
upon surrender of the temporary Securities at the office or agency of
the Company designated for that purpose without charge to the Holder.
Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more definitive
securities of the same series, of any authorized denominations having
the same Original Issue Date and Stated Maturity and having the same
terms as such temporary Securities. Until so exchanged, the temporary
Securities of
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any series shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of such series.
SECTION 3.5. Global Securities.
(a) Each Global Security issued under this Indenture shall be
registered in the name of the Depositary designated by the Company for
such Global Security or a nominee thereof and delivered to such
Depositary or a nominee thereof or custodian therefor, and each such
Global Security shall constitute a single Security for all purposes of
this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary
for such Global Security or a nominee thereof unless (i) such
Depositary advises the Trustee in writing that such Depositary is no
longer willing or able to properly discharge its responsibilities as
Depositary with respect to such Global Security, and the Company is
unable to locate a qualified successor, (ii) the Company executes and
delivers to the Trustee a Company Order stating that the Company elects
to terminate the book-entry system through the Depositary, or (iii)
there shall have occurred and be continuing an Event of Default.
(c) If any Global Security is to be exchanged for other Securities
or cancelled in whole, it shall be surrendered by or on behalf of the
Depositary or its nominee to the Securities Registrar for exchange or
cancellation as provided in this Article III. If any Global Security is
to be exchanged for other Securities or cancelled in part, or if
another Security is to be exchanged in whole or in part for a
beneficial interest in any Global Security, then either (i) such Global
Security shall be so surrendered for exchange or cancellation as
provided in this Article III or (ii) the principal amount thereof shall
be reduced, subject to Section 3.6(b)(v), or increased by an amount
equal to the portion thereof to be so exchanged or cancelled, or equal
to the principal amount of such other Security to be so exchanged for a
beneficial interest therein, as the case may be, by means of an
appropriate adjustment made on the records of the Securities Registrar,
whereupon the Trustee, in accordance with the Applicable Procedures,
shall instruct the Depositary or its authorized representative to make
a corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Security by the Depositary, accompanied
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by registration instructions, the Trustee shall, subject to Section
3.6(b) and as otherwise provided in this Article III, authenticate and
deliver any Securities issuable in exchange for such Global Security
(or any portion thereof) in accordance with the instructions of the
Depositary. The Trustee shall not be liable for any delay in delivery
of such instructions and may conclusively rely on, and shall be fully
protected in relying on, such instructions.
(d) Every Security authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Security or
any portion thereof, whether pursuant to this Article III, Section 9.6
or 11.6 or otherwise, shall be authenticated and delivered in the form
of, and shall be, a Global Security, unless such Security is registered
in the name of a Person other than the Depositary for such Global
Security or a nominee thereof.
(e) The Depositary or its nominee, as the registered owner of a
Global Security, shall be the Holder of such Global Security for all
purposes under this Indenture and the Securities, and owners of
beneficial interests in a Global Security shall hold such interests
pursuant to the Applicable Procedures. Accordingly, any such owner's
beneficial interest in a Global Security shall be shown only on, and
the transfer of such interest shall be effected only through, records
maintained by the Depositary or its nominee or agent. Neither the
Trustee nor the Securities Registrar shall have any liability in
respect of any transfers effected by the Depositary.
(f) The rights of owners of beneficial interests in a Global
Security shall be exercised only through the Depositary and shall be
limited to those established by law and agreements between such owners
and the Depositary and/or its Agent Members.
SECTION 3.6. Registration, Transfer and Exchange
Generally; Certain Transfers and
Exchanges; Securities Act Legends.
(a) The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
registration of Securities and transfers of Securities. Such register
is herein sometimes referred to as the "Securities Register." The
Trustee is hereby appointed "Securities Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
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Upon surrender for registration of transfer of any Security at the
offices or agencies of the Company designated for that purpose, the
Company shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more
new Securities of the same series of any authorized denominations of
like tenor and aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of like
tenor and aggregate principal amount, upon surrender of the Securities
to be exchanged at such office or agency. Whenever any securities are
so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities that the Holder making
the exchange is entitled to receive.
All Securities issued upon any transfer or exchange of Securities
shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such transfer or exchange.
Every Security presented or surrendered for transfer or exchange
shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar, duly executed
by the Holder thereof or such Holder's attorney duly authorized in
writing.
No service charge shall be made to a Holder for any transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Securities.
Neither the Company nor the Trustee shall be required, pursuant to
the provisions of this Section, (i) to issue, register the transfer of
or exchange any Security of any series during a period beginning at the
opening of business 15 days before the day of selection for redemption
of Securities of that series pursuant to Article XI and ending at the
close of business on the day of mailing of the notice of redemption, or
(ii) to register the transfer of or exchange any Security so selected
for redemption in whole or in part, except, in the case of any such
Security to be redeemed in part, any portion thereof not to be
redeemed.
(b) Certain Transfers and Exchanges. Notwithstanding
any other provision of this Indenture, transfers and exchanges
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of Securities and beneficial interests in a Global Security shall be
made only in accordance with this Section 3.6(b).
(i) Non-Global Security to Non-Global Security. A Security
that is not a Global Security may be transferred, in whole or in
part, to a Person who takes delivery in the form of another
Security that is not a Global Security as provided in Section
3.6(a), provided that if the Security to be transferred in whole
or in part is a Restricted Security, the Securities Registrar
shall have received a Restricted Securities Certificate duly
executed by the transferor Holder or such Holder's attorney duly
authorized in writing.
(ii) Exchanges Between Global Security and Non-
Global Security. A beneficial interest in a Global
Security may be exchanged for a Security that is not a
Global Security as provided in Section 3.5.
(iii) Certain Initial Transfers of Non-Global Securities. In
the case of Securities initially issued other than in global form,
an initial transfer or exchange of such Securities that does not
involve any change in beneficial ownership may be made to an
Institutional Accredited Investor or Investors as if such transfer
or exchange were not an initial transfer or exchange; provided
that written certification shall be provided by the transferee and
transferor of such Securities to the Securities Registrar that
such transfer or exchange does not involve a change in beneficial
ownership.
SECTION 3.7. Mutilated, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together
with such security or indemnity as may be required by the Company or
the Trustee to save each of them harmless, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series, of like tenor and aggregate principal
amount, bearing the same legends, and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by
them to save each of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the
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Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same series, of like
tenor and aggregate principal amount and bearing the same legends as
such destroyed, lost or stolen Security, and bearing a number not
contemporaneously outstanding.
If any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 3.7, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of such
series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 3.8. Payment of Interest and Additional
Interest; Interest Rights Preserved.
Interest and Additional Interest on any Security of any series
that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date, shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest in
respect of Securities of such series, except that, unless otherwise
provided in the Securities of such series, interest payable on the
Stated Maturity of the principal of a Security shall be paid to the
Person to whom principal is paid. The initial payment of interest on
any Security of any series that is issued between a Regular Record Date
and the related Interest Payment Date shall be payable as provided in
such Security or
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in the Board Resolution pursuant to Section 3.1 with respect to the
related series of Securities.
Any interest on any Security that is due and payable, but is not
timely paid or duly provided for, on any Interest Payment Date for
Securities of such series (herein called "Defaulted Interest"), shall
forthwith cease to be payable to the registered Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such
series in respect of which interest is in default (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon, the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest, which shall be not
more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first class, postage prepaid,
to each Holder of a Security of such series at the address of such
Holder as it appears in the Securities Register not less than 10
days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a
similar notice to be published at least once in a newspaper,
customarily published in the English language on each Business Day
and of general circulation in the Borough of Manhattan, The City
of New York, but such publication shall not be a condition
precedent to the establishment of such Special
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Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their respective
Predecessor Securities) are registered on such Special Record Date
and shall no longer be payable pursuant to the following clause
(2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of the series in
respect of which interest is in default may be listed and, upon
such notice as may be required by such exchange (or by the Trustee
if the Securities are not listed), if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
clause 2, such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for
or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue interest, that were
carried by such other Security.
SECTION 3.9. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the
Trustee shall treat the Person in whose name any Security is registered
as the owner of such Security for the purpose of receiving payment of
principal of and (subject to Section 3.8) any interest on such Security
and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held
on its behalf by a Depositary shall have any rights under this
Indenture with respect to such Global Security, and such Depositary may
be treated by the Company, the Trustee and any agent of the Company or
the Trustee as the owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other
authorization furnished by a Depositary or impair, as between a
Depositary and such holders of beneficial interests, the operation of
customary practices governing the exercise of
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the rights of the Depositary (or its nominee) as Holder of any
Security.
SECTION 3.10. Cancellation.
All Securities surrendered for payment, redemption, transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities and Securities
surrendered directly to the Trustee for any such purpose shall be
promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and
delivered hereunder that the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled
by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled
Securities shall be destroyed by the Trustee and the Trustee shall
deliver to the Company a certificate of such destruction.
SECTION 3.11. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series for
any period shall be computed on the basis of a 360-day year of twelve
30-day months and the actual number of days elapsed in any partial
month in such period, and interest on the Securities of each series for
a full period shall be computed by dividing the rate per annum by the
number of interest periods that together constitute a full twelve
months.
SECTION 3.12. Deferrals of Interest Payment Dates.
If specified as contemplated by Section 2.1 or Section 3.1 with
respect to the Securities of a particular series, so long as no Event
of Default has occurred and is continuing, the Company shall have the
right, at any time during the term of such series, from time to time to
defer the payment of interest on such Securities for such period or
periods (each an "Extension Period") not to exceed the number of
consecutive quarterly, semi-annual or other periods that equal five
years with respect to each Extension Period, during which Extension
Periods the Company shall, if so specified as contemplated by Section
3.1, have the right to make partial payments of interest on any
Interest Payment Date. No Extension Period shall end on a date other
than an Interest Payment Date. At the end of any such Extension Period,
the Company shall pay all interest then accrued and unpaid on the
Securities
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(together with Additional Interest thereon, if any, at the rate
specified for the Securities of such series to the extent permitted by
applicable law); provided, however, that no Extension Period shall
extend beyond the Stated Maturity of the principal of the Securities of
such series; and provided further, however, that, during any such
Extension Period, the Company shall not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's capital
stock, or (ii) make any payment of principal of or interest or premium,
if any, on or repay, repurchase or redeem any debt securities of the
Company that rank pari passu in all respects with or junior in interest
to the Securities of such series, including the Company's obligations
associated with the Outstanding Capital Securities (other than (a)
repurchases, redemptions or other acquisitions of shares of capital
stock of the Company in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of
any one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or stockholder stock purchase
plan or in connection with the issuance of capital stock of the Company
(or securities convertible into or exercisable for such capital stock)
as consideration in an acquisition transaction entered into prior to
the applicable Extension Period, (b) as a result of an exchange or
conversion of any class or series of the Company's capital stock (or
any capital stock of a Subsidiary of the Company) for any class or
series of the Company's capital stock or of any class or series of the
Company's indebtedness for any class or series of the Company's capital
stock, (c) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged, (d) any declaration of a dividend in connection with any
Rights Plan, or the issuance of rights, stock or other property under
any Rights Plan, or the redemption or repurchase of rights pursuant
thereto, or (e) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon
exercise of such warrants, options or other rights is the same stock as
that on which the dividend is being paid or ranks pari passu with or
junior to such stock). Prior to that termination of any such Extension
Period, the Company may further defer the payment of interest, provided
that no Event of Default has occurred and is continuing and provided
further, that no Extension Period shall exceed the period or periods
specified in such Securities, extend beyond the Stated Maturity of the
principal of such Securities or end on a date other than an Interest
Payment Date. Upon the termination of any such Extension Period and
upon the payment
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of all accrued and unpaid interest and any Additional Interest then due
on any Interest Payment Date, the Company may elect to begin a new
Extension Period, subject to the above conditions. No interest or
Additional Interest shall be due and payable during an Extension
Period, except at the end thereof, but each installment of interest
that would otherwise have been due and payable during such Extension
Period shall bear Additional Interest as and to the extent as may be
specified as contemplated by Section 3.1. The Company shall give the
Holders of the Securities of such series and the Trustee notice of its
election to begin any such Extension Period at least one Business Day
prior to the next succeeding Interest Payment Date on which interest on
Securities of such series would be payable but for such deferral or,
with respect to any Securities of a series issued to an Issuer Trust,
so long as any such Securities are held by such Issuer Trust, at least
one Business Day prior to the earlier of (i) the next succeeding date
on which Distributions on the Capital Securities of such Issuer Trust
would be payable but for such deferral, and (ii) the date on which the
Property Trustee of such Issuer Trust is required to give notice to
holders of such Capital Securities of the record date or the date such
Distributions are payable, but in any event not less than one Business
Day prior to such record date.
The Trustee shall promptly give notice of the Company's election
to begin any such Extension Period to the Holders of the Outstanding
Securities of such series.
SECTION 3.13. Right of Set-Off.
With respect to the Securities of a series initially issued to an
Issuer Trust, notwithstanding anything to the contrary herein, the
Company shall have the right to set off any payment it is otherwise
required to make in respect of any such Security to the extent the
Company has theretofore made, or is concurrently on the date of such
payment making, a payment under the Guarantee relating to such Security
or to a holder of Capital Securities pursuant to an action undertaken
under Section 5.8 of this Indenture.
SECTION 3.14. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company and,
by its acceptance of a Security or a beneficial interest therein, the
Holder of, and any Person that acquires a beneficial interest in, such
Security agree that for United States Federal, state and local tax
purposes it is intended that such Security constitutes indebtedness.
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SECTION 3.15. Shortening or Extension of Stated
Maturity.
If specified as contemplated by Section 2.1 or Section 3.1 with
respect to the Securities of a particular series, the Company shall
have the right to (i) shorten the Stated Maturity of the principal of
the Securities of such series at any time to any date and (ii) extend
the Stated Maturity of the principal of the Securities of such series
at any time at its election for one or more periods, provided that, if
the Company elects to exercise its right to extend the Stated Maturity
of the principal of the Securities of such series pursuant to clause
(ii) above, at the time such election is made and at the time of
extension, such conditions as may be specified in such Securities shall
have been satisfied.
SECTION 3.16. CUSIP Numbers.
The Company, in issuing the Securities, may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notice of redemption and other similar or related materials
as a convenience to Holders; provided that any such notice or other
materials may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption or other materials and that
reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further
effect (except as to any surviving rights of registration of transfer
or exchange of Securities herein expressly provided for and as
otherwise provided in this Section 4.1) and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities that have been
destroyed, lost or stolen and that have been replaced or paid
as provided in Section 3.7 and
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(ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 10.3) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year of the date of
deposit, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company, in the case of subclause (B)(i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the currency or
currencies in which the Securities of such series are payable
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for
cancellation, for the principal (and premium, if any) and interest
(including any Additional Interest) to the date of such deposit
(in the case of Securities that have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 6.7,
the obligations of the Trustee to any Authenticating Agent under
Section 6.14 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section,
the
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obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3,
all money deposited with the Trustee pursuant to Section 4.1 shall be
held in trust and applied by the Trustee, in accordance with the
provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest
and Additional Interest for the payment of which such money or
obligations have been deposited with or received by the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default.
"Event of Default", wherever used herein with respect to the
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security
of that series, including any Additional Interest in respect
thereof, when it becomes due and payable, and continuance of such
default for a period of 30 days (subject to the deferral of any
due date in the case of an Extension Period); or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its
Maturity; or
(3) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of
the Company in the Securities of that series or in this Indenture
for a period of 90 days after the date on which written notice of
such failure, requiring the Company to remedy the same, shall have
been given to the Company by the Trustee by registered or
certified mail or to the Company and the
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Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that
series; or
(4) the occurrence of the appointment of a receiver or other
similar official in any liquidation, insolvency or similar
proceeding with respect to the Company or all or substantially all
of its property; or a court or other governmental agency shall
enter a decree or order and such decree or order shall remain
unstayed and undischarged for a period of 60 days; or
(5) any other Event of Default provided with respect to
Securities of that series.
SECTION 5.2. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default (other than an Event of Default specified
in Section 5.1(4)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then, and in every such case, the
Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series may declare the
principal amount (or, if the Securities of that series are Discount
Securities, such portion of the principal amount as may be specified in
the terms of that series) of all the Securities of that series to be
due and payable immediately, by a notice in writing to the Company (and
to the Trustee if given by Holders), provided that, in the case of the
Securities of a series issued to an Issuer Trust, if, upon an Event of
Default, the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities of such series fail to declare the
principal of all the Outstanding Securities of such series to be
immediately due and payable, the holders of at least 25% in aggregate
Liquidation Amount (as defined in the related Trust Agreement) of the
related series of Capital Securities issued by such Issuer Trust then
outstanding shall have the right to make such declaration by a notice
in writing to the Company and the Trustee; and upon any such
declaration such principal amount (or specified portion thereof) of and
the accrued interest (including any Additional Interest) on all the
Securities of such series shall become immediately due and payable. If
an Event of Default specified in Section 5.1(4) with respect to
Securities of any series at the time Outstanding occurs, the principal
amount of all the Securities of such series (or, if the Securities of
such series are Discount Securities, such portion of the principal
amount of such Securities as may be specified by the terms of that
series) shall automatically, and without any declaration or
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other action on the part of the Trustee or any Holder, become
immediately due and payable. Payment of principal and interest
(including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article XIII notwithstanding
that such amount shall become immediately due and payable as herein
provided.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that
series, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay:
(A) all overdue installments of interests on
all Securities of such series;
(B) any accrued Additional Interest on all
Securities of such series;
(C) the principal of (and premium, if any, on) any
Securities of such series that have become due otherwise than
by such declaration of acceleration and interest and
Additional Interest thereon at the rate borne by the
Securities; and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities
of that series that has become due solely by such acceleration,
have been cured or waived as provided in Section 5.13.
In the case of Securities of a series initially issued to an
Issuer Trust, if the Holders of such Securities fail to annul such
declaration and waive such default, the holders of a majority in
aggregate Liquidation Amount (as defined in the related Trust
Agreement) of the related series of Capital Securities issued by such
Issuer Trust then outstanding shall also have the right to rescind and
annul such declaration and its consequences by written notice to the
Company and the
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Trustee, subject to the satisfaction of the conditions set forth in
clauses (1) and (2) above of this section 5.2.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of
interest (including any Additional Interest) on any Security of
any series when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal
of (and premium, if any, on) any Security at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to the Trustee,
for the benefit of the Holders of such Securities, the whole
amount then due and payable on such Securities for principal (and
premium, if any) and interest (including any Additional Interest),
and, in addition thereto, all amounts owing the Trustee under
Section 6.7.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid, and may prosecute such proceeding to judgment
or final decree, and may enforce the same against the Company or any
other obligor upon such Securities and collect the monies adjudged or
decreed to be payable in the manner provided by law out of the property
of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of
Securities of such series by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
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SECTION 5.4. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
or administrative proceeding relative to the Company or any other
obligor upon the Securities or the property of the Company or of such
other obligor or their creditors,
(a) the Trustee (irrespective of whether the principal of the
Securities of any series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment
of overdue principal (and premium, if any) or interest (including any
Additional Interest)) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest (including any
Additional Interest) owing and unpaid in respect to the Securities
and to file such other papers or documents as may be necessary or
advisable and to take any and all actions as are authorized under
the Trust Indenture Act in order to have the claims of the Holders
and any predecessor to the Trustee under Section 6.7 allowed in
any such judicial or administrative proceedings; and
(ii) in particular, the Trustee shall be authorized to
collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same in
accordance with Section 5.6; and
(b) any custodian, receiver, assignee, trustee, liquidator,
sequestrator, conservator (or other similar official) in any such
judicial or administrative proceeding is hereby authorized by each
Holder to make such payments to the Trustee for distribution in
accordance with Section 5.6, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay
to the Trustee any amount due to it and any predecessor Trustee under
Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in
any such
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proceeding; provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar
official and be a member of a creditors' or other similar committee.
SECTION 5.5. Trustee May Enforce Claim Without
Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, subject to Article XIII and
after provision for the payment of all the amounts owing the Trustee
and any predecessor Trustee under Section 6.7, its agents and counsel,
be for the ratable benefit of the Holders of the Securities in respect
of which such judgment has been recovered.
SECTION 5.6 Application of Money Collected.
Any money or property collected or to be applied by the Trustee
with respect to a series of Securities pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money or property on
account of principal (or premium, if any) or interest (including any
Additional Interest), upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and
any predecessor Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the amounts
then due and unpaid upon Securities of such series for principal (and
premium, if any) and interest (including any Additional Interest) in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such series of Securities
for principal (and premium, if any) and interest (including any
Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons
entitled thereto.
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SECTION 5.7 Limitation on Suits.
Subject to Section 5.8, no Holder of any Securities of any series
shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture or for the appointment of a
receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders
of a majority in aggregate principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing itself of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holders of
Securities, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all such Holders.
SECTION 5.8. Unconditional Right of Holders to Receive
Principal, Premium and Interest; Direct
Action by Holders of Capital Securities.
Notwithstanding any other provision in this Indenture,
the Holder of any Security of any series shall have the right,
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which is absolute and unconditional, to receive payment of the
principal of (and premium, if any) and (subject to Sections 3.8 and
3.12) interest (including any Additional Interest) on such Security on
the respective Stated Maturities expressed in such Security (or in the
case of redemption, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such right shall not be
impaired without the consent of such Holder. In the case of Securities
of a series issued to an Issuer Trust, any registered holder of the
series of Capital Securities issued by such Issuer Trust shall have the
right, upon the occurrence of an Event of Default described in Section
5.1(1) or 5.1(2), to institute a suit directly against the Company for
enforcement of payment to such holder of principal of (premium, if any)
and (subject to Sections 3.8 and 3.12) interest (including any
Additional Interest) on the Securities having a principal amount equal
to the aggregate Liquidation Amount (as defined in the related Trust
Agreement) of such Capital Securities held by such holder.
SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Capital Securities
issued by any Issuer Trust has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined
adversely to the Trustee, such Holder or such holder of Capital
Securities, then, and in every such case, the Company, the Trustee,
such Holders and such holder of Capital Securities shall, subject to
any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all
rights and remedies of the Trustee, such Holder and such holder of
Capital Securities shall continue as though no such proceeding had been
instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.7,
no right or remedy herein conferred upon or reserved to the Trustee or
the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
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SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any Security
with respect to the Securities of the related series or any holder of
any Capital Security to exercise any right or remedy accruing upon any
Event of Default with respect to the Securities of the related series
shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the
Trustee or to the Holders and the right and remedy given to the holders
of Capital Securities by Section 5.8 may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee, the
Holders or the holders of Capital Securities, as the case may be.
SECTION 5.12. Control by Holders.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series shall have the right
to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such
series, provided that:
(1) such direction shall not be in conflict with
any rule of law or with this Indenture,
(2) the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such
direction, and
(3) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow such direction if a
Responsible Officer or Officers of the Trustee shall, in good
faith, determine that the proceeding so directed would be unjustly
prejudicial to the Holders not joining in any such direction or
would involve the Trustee in personal liability.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series affected thereby
and, in the case of any Securities of a series initially issued to an
Issuer Trust, the holders of a majority in aggregate Liquidation Amount
(as defined in the related Trust Agreement) of the Capital Securities
issued by
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such Issuer Trust may waive any past default hereunder and its
consequences with respect to such series except a default:
(1) in the payment of the principal of (or premium, if any)
or interest (including any Additional Interest) on any Security of
such series (unless such default has been cured and the Company
has paid to or deposited with the Trustee a sum sufficient to pay
all matured installments of interest (including Additional
Interest) and all principal of (and premium, if any, on) all
Securities of that series due otherwise than by acceleration), or
(2) in respect of a covenant or provision hereof that under
Article IX cannot be modified or amended without the consent of
each Holder of any Outstanding Security of such series affected.
Any such waiver shall be deemed to be on behalf of the Holders of
all the Securities of such series, or in the case of waiver by holders
of Capital Securities issued by such Issuer Trust, by all holders of
Capital Securities issued by such Issuer Trust.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture, but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that
any court may, in its discretion, require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may, in its discretion,
assess reasonable costs, including reasonable attorneys' fees, against
any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant, but
the provisions of this Section shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in aggregate principal
amount of the Outstanding Securities of any series, or to any suit
instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest (including
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any Additional Interest) on any Security on or after the respective
Stated Maturities expressed in such Security.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay
or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture, but in the case of any such
certificates or opinions that by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would
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exercise or use under the circumstances in the conduct of his
or her own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct except that
(1) this subsection shall not be construed to limit
the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of Holders pursuant to Section 5.12
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of a series.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if there shall be reasonable grounds
for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 6.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of
the Trustee of the occurrence of any default hereunder with respect to
the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and addresses
appear in the Securities Register, notice of such default, unless such
default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or
premium, if any) or interest (including any Additional Interest) on any
Security of such series, the
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Trustee shall be protected in withholding such notice if and so long as
the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of
the Holders of Securities of such series; and provided further, that,
in the case of any default of the character specified in Section
5.1(3), no such notice to Holders of Securities of such series shall be
given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event that is, or
after notice or lapse of time or both would become, an Event of Default
with respect to Securities of such series.
SECTION 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, Security or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction;
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(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, indenture, Security or other paper or document, but the
Trustee in its discretion may make such inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company, personally
or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
SECTION 6.4. Not Responsible for Recitals or Issuance
of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the
statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
SECTION 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Securities Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 6.8 and 6.13, may otherwise deal
with the Company with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Securities Registrar or
such other agent.
SECTION 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received
by it hereunder except as otherwise agreed with the Company.
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SECTION 6.7. Compensation and Reimbursement.
(a) The Company agrees to pay to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder in
such amounts as the Company and the Trustee shall agree from time to
time (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust).
(b) Since the Trust is being formed solely to facilitate an
investment in the Trust Securities, the Company, as borrower, hereby
covenants to pay all debts and obligations (other than with respect to
the Capital Securities and the Common Securities) and all costs and
expenses of the Issuer Trust (including without limitation all costs
and expenses relating to the organization of the Issuer Trust, the fees
and expenses of the trustees and all costs and expenses relating to the
operation of the Issuer Trust) and to pay any and all taxes, duties,
assessments or governmental charges of whatever nature (other than
withholding taxes) imposed on the Issuer Trust by the United States, or
any taxing authority, so that the net amounts received and retained by
the Issuer Trust and the Property Trustee after paying such expenses
will be equal to the amounts the Issuer Trust and the Property Trustee
would have received had no such costs or expenses been incurred by or
imposed on the Issuer Trust. The foregoing obligations of the Company
are for the benefit of, and shall be enforceable by, any person to whom
any such debts, obligations, costs, expenses and taxes are owed (each,
a "Creditor") whether or not such Creditor has received notice thereof.
Any such Creditor may enforce such obligations of the Company directly
against the Company, and the Company irrevocably waives any right or
remedy to require that any such Creditor take any action against the
Issuer Trust or any other person before proceeding against the Company.
The Company shall execute such additional agreements as may be
necessary or desirable to give full effect to the foregoing.
(c) The Company shall indemnify the Trustee for, and hold it
harmless against, any loss, liability or expense (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel) incurred without negligence or bad faith, arising
out of or in connection with the acceptance or administration of this
trust or the performance of its duties hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder. This indemnification shall
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survive the termination of this Indenture or the resignation or removal
of the Trustee.
(d) The Company agrees to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 5.1(4) occurs, the expenses and
the compensation for the services are intended to constitute expenses
of administration under the Bankruptcy Reform Act of 1978 or any
successor statute.
SECTION 6.8. Disqualification; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder
shall be subject to the provisions of Section 310(b) of the Trust
Indenture Act. Nothing herein shall prevent the Trustee from filing
with the Commission the application referred to in the second to last
paragraph of said Section 310(b).
SECTION 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be:
(a) an entity organized and doing business under the laws of the
United States of America or of any state or territory thereof or of the
District of Columbia, authorized under such laws to exercise corporate
trust powers and subject to supervision or examination by Federal,
state, territorial or District of Columbia authority, or
(b) an entity or other Person organized and doing business under
the laws of a foreign government that is permitted to act as Trustee
pursuant to a rule, regulation or order of the Commission, authorized
under such laws to exercise corporate trust powers, and subject to
supervision or examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to supervision
or examination applicable to United States institutional trustees;
in either case having a combined capital and surplus of at
least $50,000,000, subject to supervision or examination by
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Federal or state authority. If such entity publishes reports of
condition at least annually, pursuant to law or to the requirements of
the aforesaid supervising or examining authority, then, for the
purposes of this Section, the combined capital and surplus of such
entity shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any
time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article. Neither the
Company nor any Person directly or indirectly controlling, controlled
by or under common control with the Company shall serve as Trustee for
the Securities of any series issued hereunder.
SECTION 6.10. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee under
Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of such
series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the
Company or by any such Holder, or
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(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, (i) the Company, acting pursuant to the
authority of a Board Resolution, may remove the Trustee with respect to
the Securities of all series issued hereunder, or (ii) subject to
Section 5.14, any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of such Holder and all others
similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to the Securities of all series
issued hereunder and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause with respect to the Securities of one or more series, the
Company, by a Board Resolution, shall promptly appoint a successor
Trustee with respect to the Securities of that or those series. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment, become the successor Trustee with respect to the
Securities of such series and supersede the successor Trustee appointed
by the Company. If no successor Trustee with respect to the Securities
of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided,
any Holder who has been a bona fide Holder of a Security of such series
for at least six months may, subject to Section 5.14, on behalf of such
Holder and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities
of any series by mailing written notice of such event by first-class
mail, postage prepaid, to the Holders of Securities of such series as
their names and addresses appear in the Securities Register. Each
notice
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shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust
Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to
the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect
to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest
in, each successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more than
one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees or co-trustees of
the same trust and that each such Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the
execution
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and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided
therein and each removal of the retiring Trustee, without any further
act, deed or conveyance, shall become vested with all the rights,
powers, trusts, and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may
be.
(d) No successor Trustee shall accept its appointment unless, at
the time of such acceptance, such successor Trustee shall be qualified
and eligible under this Article.
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business.
Any entity into which the Trustee may be merged or converted or
with which it may be consolidated, or any entity resulting from any
merger, conversion or consolidation to which the Trustee shall be a
party, or any entity succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such entity shall be otherwise qualified
and eligible under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated, and in case
any Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any
predecessor Trustee or in the name of such successor Trustee, and in
all cases the certificate of authentication shall have the full force
which it is provided anywhere in the Securities or in this Indenture
that the certificate of the Trustee shall have.
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SECTION 6.13. Preferential Collection of Claims Against
Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall
be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
SECTION 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities, which shall be authorized
to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue and upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 3.6, and
Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be an entity organized
and doing business under the laws of the United States of America, or
of any state or territory thereof or of the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section the combined capital
and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any entity into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any entity resulting
from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any entity succeeding to all
or substantially all of the corporate trust business of an
Authenticating Agent shall
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be the successor Authenticating Agent hereunder, provided such entity
shall be otherwise eligible under this Section, without the execution
or filing of any paper or any further act on the part of the Trustee or
the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent, which shall be acceptable
to the Company and shall give notice of such appointment in the manner
provided in Section 1.6 to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve. Any successor
Authenticating Agent upon acceptance hereunder shall become vested with
all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under
the provision of this Section.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section,
and the Trustee shall be entitled to be reimbursed for such payment,
subject to the provisions of Section 6.7.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the
following form:
This is one of the Securities referred to in the within mentioned
Indenture.
Dated: _________________ BANKERS TRUST COMPANY,
as Trustee
By:
-----------------------------
As Authenticating Agent
Name:
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Title:
By:
-----------------------------
Authorized Officer
Name:
Title:
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE,
PAYING AGENT AND COMPANY
SECTION 7.1. Company to Furnish Trustee Names and
Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after January 15 and July
15 in each year, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such dates,
and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished, excluding from any such list
names and addresses received by the Trustee in its capacity as
Securities Registrar.
SECTION 7.2. Preservation of Information,
Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in
the most recent list furnished to the Trustee as provided in Section
7.1 and the names and addresses of Holders received by the Trustee in
its capacity as Securities Registrar. The Trustee may destroy any list
furnished to it as provided in Section 7.1 upon receipt of a new list
so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities,
and the corresponding rights and privileges of the Trustee, shall be as
provided in the Trust Indenture Act.
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(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them shall be held accountable
by reason of the disclosure of information as to the names and
addresses of the Holders made pursuant to the Trust Indenture Act.
SECTION 7.3. Reports by Trustee and Paying Agent.
(a) The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act, at the times and in the manner
provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of
not more than 12 months shall be transmitted no later than January 31
in each calendar year, commencing with the first January 31 after the
first issuance of Securities under this Indenture.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities
exchange upon which any Securities are listed and also with the
Commission. The Company will notify the Trustee when any Securities are
listed on any securities exchange.
(d) The Paying Agent shall comply with all withholding, backup
withholding, tax and information reporting requirements under the
Internal Revenue Code of 1986, as amended, and the Treasury Regulations
issued thereunder with respect to payments on, or with respect to, the
Securities.
SECTION 7.4. Reports by Company.
The Company shall file or cause to be filed with the Trustee and
with the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and in the
manner provided in the Trust Indenture Act. In the case of information,
documents or reports required to be filed with the Commission pursuant
to Section 13(a) or Section 15(d) of the Exchange Act, the Company
shall file or cause the filing of such information, documents or
reports with the Trustee within 15 days after the same are required to
be filed with the Commission.
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ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, Etc., Only on
Certain Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and no Person shall
consolidate with or merge into the Company or convey, transfer or lease
its properties and assets substantially as an entirety to the Company,
unless:
(1) If the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the entity
formed by such consolidation or into which the Company is merged
or the Person that acquires by conveyance or transfer, or that
leases, the properties and assets of the Company substantially as
an entirety shall be an entity organized and existing under the
laws of the United States of America or any state thereof or the
District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of
the principal of (and premium, if any), and interest (including
any Additional Interest) on all the Securities of every series and
the performance of every covenant of this Indenture on the part of
the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event that, after notice or lapse of
time, or both, would constitute an Event of Default, shall have
occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and any such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with and, in the case of a
transaction subject to this Section 8.1 but not requiring a
supplemental indenture under paragraph (1) of this Section 8.1, an
Officer's Certificate or Opinion of Counsel to the effect that the
surviving, resulting or successor entity is legally bound by the
Indenture and the Securities; and the Trustee, subject to Section
6.1,
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may rely upon such Officers' Certificates and Opinions of Counsel
as conclusive evidence that such transaction complies with this
Section 8.1.
SECTION 8.2. Successor Company Substituted.
Upon any consolidation or merger by the Company with or into any
other Person, or any conveyance, transfer or lease by the Company of
its properties and assets substantially as an entirety to any Person in
accordance with Section 8.1, the successor entity formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person
had been named as the Company herein; and in the event of any such
conveyance, transfer or lease the Company shall be discharged from all
obligations and covenants under the Indenture and the Securities.
Such successor Person may cause to be executed, and may issue
either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder that theretofore shall not have been
signed by the Company and delivered to the Trustee; and, upon the order
of such successor Person instead of the Company and subject to all the
terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities that
previously shall have been signed and delivered by the officers of the
Company to the Trustee for authentication pursuant to such provisions
and any Securities that such successor Person thereafter shall cause to
be executed and delivered to the Trustee on its behalf for the purpose
pursuant to such provisions. All the Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as
the Securities theretofore or thereafter issued in accordance with the
terms of this Indenture.
In case of any such consolidation, merger, sale, conveyance or
lease, such changes in phraseology and form may be made in the
Securities thereafter to be issued as may be appropriate.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to
time, may amend or waive any provision of this Indenture or may enter
into one or more indentures supplemental hereto, in form satisfactory
to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants
of the Company herein and in the Securities contained; or
(2) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee or to surrender any right or power
herein conferred upon the Company; or
(3) to establish the form or terms of Securities of
any series as permitted by Sections 2.1 or 3.1; or
(4) to facilitate the issuance of Securities of any
series in certificated or other definitive form; or
(5) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of the series specified) or to
surrender any right or power herein conferred upon the Company; or
(6) to add any additional Events of Default for the benefit
of the Holders of all or any series of Securities (and if such
additional Events of Defaults are to be for the benefit of less
than all series of Securities, stating that such additional Events
of Default are expressly being included solely for the benefit of
the series specified); or
(7) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall (a)
become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental
indenture that is
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entitled to the benefit of such provision or (b) not
apply to any Outstanding Securities; or
(8) to cure any ambiguity, to correct or supplement any
provision herein that may be defective or inconsistent with any
other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture,
provided that such action pursuant to this clause (8) shall not
adversely affect the interest of the Holders of Securities of any
series in any material respect or, in the case of the Securities
of a series issued to an Issuer Trust and for so long as any of
the corresponding series of Capital Securities issued by such
Issuer Trust shall remain outstanding, the holders of such Capital
Securities; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of
one or more series and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than
one Trustee, pursuant to the requirements of Section 6.11(b); or
(10) to comply with the requirements of the Commission in
order to effect or maintain the qualification of this Indenture
under the Trust Indenture Act.
SECTION 9.2. Supplemental Indentures with Consent of
Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders
of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security of each series affected thereby,
(1) change the Stated Maturity of the principal of,
or any installment of interest (including any Additional
Interest) on, any Security, or reduce the principal
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amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of
principal of a Discount Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2, or change the place of payment where, or
the coin or currency in which, any Security or interest thereon is
payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or,
in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in aggregate principal amount of
the Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance
with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture,
or
(3) modify any of the provisions of this Section, Section
5.13 or Section 10.5, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Security affected thereby;
provided, further, that, in the case of the Securities of a series
issued to an Issuer Trust, so long as any of the corresponding
series of Capital Securities issued by such Issuer Trust remains
outstanding, (i) no such amendment shall be made that adversely
affects the holders of such Capital Securities in any material
respect, and no termination of this Indenture shall occur, and no
waiver of any Event of Default or compliance with any covenant
under this Indenture shall be effective, without the prior consent
of the holders of at least a majority of the aggregate Liquidation
Amount (as defined in the related Trust Agreement) of such Capital
Securities then outstanding unless and until the principal of (and
premium, if any, on) the Securities of such series and all accrued
and (subject to Section 3.8) unpaid interest (including any
Additional Interest) thereon have been paid in full, and (ii) no
amendment shall be made to Section 5.8 of this Indenture that
would impair the rights of the holders of Capital Securities
issued by an Issuer Trust provided therein without the prior
consent of the holders of each such Capital Security then
outstanding unless and until the principal of (and premium, if
any, on) the Securities of such series and
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all accrued and (subject to Section 3.8) unpaid interest
(including any Additional Interest) thereon have been paid in
full.
A supplemental indenture that changes or eliminates any covenant
or other provision of this Indenture that has expressly been included
solely for the benefit of one or more particular series of Securities
or any corresponding series of Capital Securities of an Issuer Trust
that holds the Securities of any series, or that modifies the rights of
the Holders of Securities of such series or holders of such Capital
Securities of such corresponding series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series or holders
of Capital Securities of any other such corresponding series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture, and that all conditions
precedent herein provided for relating to such action have been
complied with. The Trustee may, but 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.
SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
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SECTION 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 9.6. Reference in Securities to Supplemental
Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if
required by the Company, bear a notation in form approved by the
Company as to any matter provided for in such supplemental indenture.
If the Company shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and
Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest (including any Additional Interest) on
the Securities of that series in accordance with the terms of such
Securities and this Indenture.
SECTION 10.2. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may
be presented or surrendered for payment, where Securities of that
series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The Company
initially appoints the Trustee, acting through its Corporate Trust
Office, as its agent for said purposes. The Company will give prompt
written notice to the Trustee of any change in the location of any such
office or agency. If at any time the Company shall fail to maintain
such office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands
may be
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made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or
surrendered for any or all of such purposes, and may from time to time
rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation
to maintain an office or agency in each Place of Payment for Securities
of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation and any change in the
location of any such office or agency.
SECTION 10.3. Money for Security Payments to be Held in
Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due
date of the principal of (and premium, if any) or interest (including
Additional Interest) on any of the Securities of such series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or interest
(including Additional Interest) so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided,
and will promptly notify the Trustee of its failure so to act.
Whenever the Company shall have one or more Paying Agents, it
will, prior to 10:00 a.m., New York City time, on each due date of the
principal of (or premium, if any) or interest, including Additional
Interest on any Securities, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest,
including Additional Interest so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal (and
premium, if any) or interest, including Additional Interest, and
(unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
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(1) hold all sums held by it for the payment of the principal of
(and premium, if any, or interest (including Additional Interest) on
the Securities of a series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon such Securities) in the making of any payment of
principal (and premium, if any) or interest (or Additional Interest) in
respect of any Security of any Series;
(3) at any time during the continuance of any default with respect
to a series of Securities, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying
Agent with respect to such series; and
(4) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent.
The Company may, at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums
to be held by the Trustee upon the same terms as those upon which such
sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company in trust for the payment of the principal of (and
premium, if any) or interest (including Additional Interest) on any
Security and remaining unclaimed for two years after such principal
(and premium, if any) or interest (including Additional Interest) has
become due and payable shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law)
be paid on Company Request to the Company, or (if then held by the
Company) shall (unless otherwise required by mandatory provision of
applicable escheat or abandoned or unclaimed property law) be
discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being
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required to make any such repayment, may at the expense of the Company
cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, the City of New York, notice
that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 10.4. Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date
hereof, an Officers' Certificate covering the preceding calendar year,
stating whether or not to the best knowledge of the signers thereof the
Company is in default in the performance, observance or fulfillment of
or compliance with any of the terms, provisions, covenants and
conditions of this Indenture, and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which
they may have knowledge. For the purpose of this Section 10.4,
compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.
SECTION 10.5. Waiver of Certain Covenants.
Subject to the rights of holders of Capital Securities specified
in Section 9.2, if any, the Company may omit in any particular instance
to comply with any covenant or condition provided pursuant to Section
3.1, 9.1(3) or 9.1(4) with respect to the Securities of any series, if
before or after the time for such compliance the Holders of at least a
majority in aggregate principal amount of the Outstanding Securities of
such series shall, by Act of such Holders, either waive such compliance
in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant
or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company in
respect of any such covenant or condition shall remain in full force
and effect.
SECTION 10.6. Additional Sums.
In the case of the Securities of a series initially issued to an
Issuer Trust, so long as no Event of Default has occurred and is
continuing and except as otherwise specified as contemplated by Section
2.1 or Section 3.1, if (i) an
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Issuer Trust is the Holder of all of the Outstanding Securities of such
series, and (ii) a Tax Event described in clause (i) or (iii) of the
definition of the term "Tax Event" in Section 1.1 hereof has occurred
and is continuing in respect of such Issuer Trust, the Company shall
pay to such Issuer Trust (and its permitted successors or assigns under
the related Trust Agreement) for so long as such Issuer Trust (or its
permitted successor or assignee) is the registered holder of the
Outstanding Securities of such series, such additional sums as may be
necessary in order that the amount of Distributions (including any
Additional Amounts (as defined in such Trust Agreement)) then due and
payable by such Issuer Trust on the related Capital Securities and
Common Securities that at any time remain outstanding in accordance
with the terms thereof shall not be reduced as a result of such
Additional Taxes (the "Additional Sums"). Whenever in this Indenture or
the Securities there is a reference in any context to the payment of
principal of or interest on the Securities, such mention shall be
deemed to include mention of the payments of the Additional Sums
provided for in this paragraph to the extent that, in such context,
Additional Sums are, were or would be payable in respect thereof
pursuant to the provisions of this paragraph and express mention of the
payment of Additional Sums (if applicable) in any provisions hereof
shall not be construed as excluding Additional Sums in those provisions
hereof where such express mention is not made; provided, however, that
the deferral of the payment of interest pursuant to Section 3.12 on the
Securities shall not defer the payment of any Additional Sums that may
be due and payable.
SECTION 10.7. Additional Covenants.
The Company covenants and agrees with each Holder of Securities of
each series that it shall not (x) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any shares of the Company's capital stock, or
(y) make any payment of principal of or interest or premium, if any, on
or repay, repurchase or redeem any debt securities of the Company that
rank pari passu in all respects with or junior in interest to the
Securities of such series, including the Company's obligations
associated with the Outstanding Capital Securities (other than (a)
repurchases, redemptions or other acquisitions of shares of capital
stock of the Company in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of
any one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or stockholder stock purchase
plan or in connection with the issuance of capital stock of
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the Company (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered
into prior to the applicable Extension Period or other event referred
to below, (b) as a result of an exchange or conversion of any class or
series of the Company's capital stock (or any capital stock of a
Subsidiary of the Company) for any class or series of the Company's
capital stock or of any class or series of the Company's indebtedness
for any class or series of the Company's capital stock, (c) the
purchase of fractional interests in shares of the Company's capital
stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (d) any declaration
of a dividend in connection with any Rights Plan, or the issuance of
rights, stock or other property under any Rights Plan, or the
redemption or repurchase of rights pursuant thereto, or (e) any
dividend in the form of stock, warrants, options or other rights where
the dividend stock or the stock issuable upon exercise of such
warrants, options or other rights is the same stock as that on which
the dividend is being paid or ranks pari passu with or junior to such
stock) if at such time (i) there shall have occurred any event (A) of
which the Company has actual knowledge that with the giving of notice
or the lapse of time, or both, would constitute an Event of Default
with respect to the Securities of such series, and (B) which the
Company shall not have taken reasonable steps to cure, (ii) if the
Securities of such series are held by an Issuer Trust, the Company
shall be in default with respect to its payment of any obligations
under the Guarantee relating to the Capital Securities issued by such
Issuer Trust, or (iii) the Company shall have given notice of its
election to begin an Extension Period with respect to the Securities of
such series as provided herein and shall not have rescinded such
notice, or such Extension Period, or any extension thereof, shall be
continuing.
The Company also covenants with each Holder of Securities of a
series issued to an Issuer Trust (i) to hold, directly or indirectly,
100% of the Common Securities of such Issuer Trust, provided that any
permitted successor of the Company as provided under Section 8.2 may
succeed to the Company's ownership of such Common Securities, (ii) as
holder of such Common Securities, not to voluntarily terminate, windup
or liquidate such Issuer Trust, other than (a) in connection with a
distribution of the Securities of such series to the holders of the
related Capital Securities in liquidation of such Issuer Trust, or (b)
in connection with certain mergers, consolidations or amalgamations
permitted by the related Trust Agreement, and (iii) to use its
reasonable efforts, consistent with the terms and provisions of such
Trust Agreement, to
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cause such Issuer Trust to continue not to be taxable as a corporation
for United States Federal income tax purposes.
SECTION 10.8. Original Issue Discount.
On or before December 15 of each year during which any Securities
are outstanding, the Company shall furnish to each Paying Agent such
information as may be reasonably requested by each Paying Agent in
order that each Paying Agent may prepare the information which it is
required to report for such year on Internal Revenue Service Forms 1096
and 1099 pursuant to Section 6049 of the Internal Revenue Code of 1986,
as amended. Such information shall include the amount of original issue
discount includible in income for each authorized minimum denomination
of principal amount at Stated Maturity of outstanding Securities during
such year.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. Applicability of This Article.
Redemption of Securities of any series as permitted or required by
any form of Security issued pursuant to this Indenture shall be made in
accordance with such form of Security and this Article; provided,
however, that, if any provision of any such form of Security shall
conflict with any provision of this Article, the provision of such form
of Security shall govern.
SECTION 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, not less
than 30 nor more than 60 days prior to the Redemption Date (unless a
shorter notice shall be satisfactory to the Trustee), notify the
Trustee and, in the case of Securities of a series held by an Issuer
Trust, the Property Trustee under the related Trust Agreement, of such
date and of the principal amount of Securities of the applicable series
to be redeemed and provide the additional information required to be
included in the notice or notices contemplated by Section 11.4;
provided that, in the case of any series of Securities initially issued
to an Issuer Trust, for so long as such Securities are held by such
Issuer Trust, such notice shall be given not less than 45 nor more than
75 days prior to such Redemption Date (unless a shorter notice shall be
satisfactory to the Property Trustee under the
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related Trust Agreement). In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided
in the terms of such Securities, the Company shall furnish the Trustee
with an Officers' Certificate and an Opinion of Counsel evidencing
compliance with such restriction.
SECTION 11.3. Selection of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed,
the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be
less than the minimum authorized denomination) for such Security.
The Trustee shall promptly notify the Company in writing of the
Securities selected for partial redemption and the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the redemption
of Securities shall relate, in the case of any Security redeemed or to
be redeemed only in part, to the portion of the principal amount of
such Security that has been or is to be redeemed.
SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not later than the thirtieth day, and not earlier than
the sixtieth day, prior to the Redemption Date, to each Holder of
Securities to be redeemed, at the address of such Holder as it appears
in the Securities Register.
With respect to Securities of such series to be redeemed, each
notice of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price or, if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to the Indenture
together with a statement that it is an estimate and that the actual
Redemption Price will be
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calculated on the third Business Day prior to the Redemption Date (if
such an estimate of the Redemption Price is given, a subsequent notice
shall be given as set forth above setting forth the Redemption Price
promptly following the calculation thereof);
(c) if less than all Outstanding Securities of such particular
series are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the particular
Securities to be redeemed;
(d) that, on the Redemption Date, the Redemption Price will become
due and payable upon each such Security or portion thereof, and that
interest thereon, if any, shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(f) such other provisions as may be required in respect of the
terms of a particular series of Securities; and
(g) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company
and shall be irrevocable. The notice, if mailed in the manner provided
above, shall be conclusively presumed to have been duly given, whether
or not the Holder receives such notice. In any case, a failure to give
such notice by mail or any defect in the notice to the Holder of any
Security designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other
Security.
SECTION 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on the Redemption Date
specified in the notice of redemption given as provided in Section
11.4, the Company will deposit with the Trustee or with one or more
Paying Agents (or if the Company is acting as its own Paying Agent, the
Company will segregate and hold in trust as provided in Section 10.3)
an amount of money sufficient to pay the Redemption Price of, and any
accrued interest (including Additional Interest) on, all the Securities
(or portions thereof) that are to be redeemed on that date.
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SECTION 11.6. Payment of Securities Called for
Redemption.
If any notice of redemption has been given as provided in Section
11.4, the Securities or portion of Securities with respect to which
such notice has been given shall become due and payable on the date and
at the place or places stated in such notice at the applicable
Redemption Price, together with accrued interest (including any
Additional Interest) to the Redemption Date. On presentation and
surrender of such Securities at a Place of Payment in said notice
specified, the said Securities or the specified portions thereof shall
be paid and redeemed by the Company at the applicable Redemption Price,
together with accrued interest (including any Additional Interest) to
the Redemption Date; provided, however, that, unless otherwise
specified as contemplated by Section 3.1, installments of interest
(including Additional Interest) whose Stated Maturity is on or prior to
the Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close
of business on the relevant record dates according to their terms and
the provisions of Section 3.8.
Upon presentation of any Security redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to
the Holder thereof, at the expense of the Company, a new Security or
Securities of the same series, of authorized denominations, in
aggregate principal amount equal to the unredeemed portion of the
Security so presented and having the same Original Issue Date, Stated
Maturity and terms.
If any Security called for redemption shall not be so paid under
surrender thereof for redemption, the principal of and premium, if any,
on such Security shall, until paid, bear interest from the Redemption
Date at the rate prescribed therefor in the Security.
SECTION 11.7. Right of Redemption of Securities
Initially Issued to an Issuer Trust.
In the case of the Securities of a series initially issued to an
Issuer Trust, except as otherwise specified as contemplated by Section
3.1, the Company, at its option, may redeem such Securities (i) on or
after the date specified in such Security, in whole at any time or in
part from time to time, or (ii) upon the occurrence and during the
continuation of a Tax Event, an Investment Company Event or a Capital
Treatment Event, at any time within 90 days following the occurrence
and during the continuation of such Tax Event,
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Investment Company Event or Capital Treatment Event, in whole (but not
in part), in each case at a Redemption Price specified in such
Security, together with accrued interest (including Additional
Interest) to the Redemption Date.
If less than all the Securities of any such series are to be
redeemed, the aggregate principal amount of such Securities remaining
Outstanding after giving effect to such redemption shall be sufficient
to satisfy any provisions of the Trust Agreement related to the Issuer
Trust to which such Securities were issued.
ARTICLE XII
SINKING FUNDS
Except as may be provided in any supplemental or amended
indenture, no sinking fund shall be established or maintained for the
retirement of Securities of any series.
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinate to Senior
Indebtedness.
The Company covenants and agrees, and each Holder of a Security,
by its acceptance thereof, likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article, the
payment of the principal of (and premium, if any) and interest
(including any Additional Interest) on each and all of the Securities
of each and every series are hereby expressly made subordinate and
subject in right of payment to the prior payment in full of all Senior
Indebtedness.
SECTION 13.2. No Payment When Senior Indebtedness in
Default; Payment Over of Proceeds Upon
Dissolution, Etc.
If the Company shall default in the payment of any principal of
(or premium, if any) or interest on any Senior Indebtedness when the
same becomes due and payable, whether at maturity or at a date fixed
for prepayment or by declaration of acceleration or otherwise, then,
upon written notice of such default to the Company by the holders of
Senior Indebtedness or any trustee therefor, unless and until such
default shall have been cured or waived or shall have ceased to exist,
no direct or indirect payment (in cash, property,
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securities, by set-off or otherwise) shall be made or agreed to be made
on account of the principal of (or premium, if any) or interest
(including Additional Interest) on any of the Securities, or in respect
of any redemption, repayment, retirement, purchase or other acquisition
of any of the Securities.
In the event of (i) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relating to the Company, its creditors or its property, (ii)
any proceeding for the liquidation, dissolution or other winding up of
the Company, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings, (iii) any assignment by the
Company for the benefit of creditors or (iv) any other marshalling of
the assets of the Company (each such event, if any, herein sometimes
referred to as a "Proceeding"), all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such
proceedings) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall be
made to any Holder of any of the Securities on account thereof. Any
payment or distribution, whether in cash, securities or other property
(other than securities of the Company or any other entity provided for
by a plan of reorganization or readjustment, the payment of which is
subordinate, at least to the extent provided in these subordination
provisions with respect to the indebtedness evidenced by the
Securities, to the payment of all Senior Indebtedness at the time
outstanding and to any securities issued in respect thereof under any
such plan of reorganization or readjustment), which would otherwise
(but for these subordination provisions) be payable or deliverable in
respect of the Securities of any series shall be paid or delivered
directly to the holders of Senior Indebtedness in accordance with the
priorities then existing among such holders until all Senior
Indebtedness (including any interest thereon accruing after the
commencement of any Proceeding) shall have been paid in full.
In the event of any Proceeding, after payment in full of all sums
owing with respect to Senior Indebtedness, the Holders of the
Securities, together with the holders of any obligations of the Company
ranking on a parity with the Securities, shall be entitled to be paid
from the remaining assets of the Company the amounts at the time due
and owing on account of unpaid principal of (and premium, if any) and
interest on the Securities and such other obligations before any
payment or other distribution; whether in cash, property or otherwise,
shall be made on account of any capital stock or any obligations of the
Company ranking junior to the
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Securities, and such other obligations. If, notwithstanding the
foregoing, any payment or distribution of any character or any
security, whether in cash, securities or other property (other than
securities of the Company or any other entity provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in these subordination provisions with
respect to the indebtedness evidenced by the Securities, to the payment
of all Senior Indebtedness at the time outstanding and to any
securities issued in respect thereof under any plan of reorganization
or readjustment), shall be received by the Trustee or any Holder in
contravention of any of the terms hereof and before all Senior
Indebtedness shall have been paid in full, such payment or distribution
or security shall be received in trust for the benefit of, and shall be
paid over or delivered and transferred to, the holders of the Senior
Indebtedness at the time outstanding in accordance with the priorities
then existing among such holders for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay
all such Senior Indebtedness in full. In the event of the failure of
the Trustee or any Holder to endorse or assign any such payment,
distribution or security, each holder of Senior Indebtedness is hereby
irrevocably authorized to endorse or assign the same.
The Trustee and the Holders shall take such action (including,
without limitation, the delivery of this Indenture to an agent for the
holders of Senior Indebtedness or consent to the filing of a financing
statement with respect hereto) as may, in the opinion of counsel
designated by the holders of a majority in principal amount of the
Senior Indebtedness at the time outstanding, be necessary or
appropriate to assure the effectiveness of the subordination effected
by these provisions.
The provisions of this Section 13.2 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Company in
respect of any security interest the creation of which is not
prohibited by the provisions of this Indenture.
The securing of any obligations of the Company, otherwise ranking
on a parity with the Securities or ranking junior to the Securities
shall not be deemed to prevent such obligations form constituting,
respectively, obligations ranking on a parity with the Securities or
ranking junior to the Securities.
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SECTION 13.3. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture
or in any of the Securities shall prevent (a) the Company, at any time,
except during the pendency of the conditions described in the first
paragraph of Section 13.2 or of any Proceeding referred to in Section
13.2, from making payments at any time of principal of (and premium, if
any) or interest (including Additional Interest) on the Securities, or
(b) the application by the Trustee of any monies deposited with it
hereunder to the payment of or on account of the principal of (and
premium, if any) or interest (including any Additional Interest) on the
Securities or the retention of such payment by the Holders, if, at the
time of such application by the Trustee, it did not have knowledge that
such payment would have been prohibited by the provisions of this
Article.
SECTION 13.4. Subrogation to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full of all amounts due or to become due
on all Senior Indebtedness, or the provision for such payment in cash
or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Indebtedness, the Holders of the Securities shall be
subrogated to the extent of the payments or distributions made to the
holders of such Senior Indebtedness pursuant to the provisions of this
Article (equally and ratably with the holders of all indebtedness of
the Company that by its express terms is subordinated to Senior
Indebtedness of the Company to substantially the same extent as the
Securities are subordinated to the Senior Indebtedness and is entitled
to like rights of subrogation by reason of any payments or
distributions made to holders of such Senior Indebtedness) to the
rights of the holders of such Senior Indebtedness to receive payments
and distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of (and premium if any) and
interest (including Additional Interest) on the Securities shall be
paid in full. For purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash,
property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article,
and no payments pursuant to the provisions of this Article to the
holders of Senior Indebtedness by Holders of the Securities or the
Trustee, shall, as among the Company, its creditors other than holders
of Senior Indebtedness, and the Holders of the Securities, be deemed to
be a payment or distribution by the Company to or on account of the
Senior Indebtedness.
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SECTION 13.5. Provisions Solely to Define Relative
Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the
Securities on the one hand and the holders of Senior Indebtedness on
the other hand. Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall (a) impair, as
between the Company and the Holders of the Securities, the obligations
of the Company, which are absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and
interest (including any Additional Interest) on the Securities as and
when the same shall become due and payable in accordance with their
terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than their
rights in relation to the holders of Senior Indebtedness; or (c)
prevent the Trustee or the Holder of any Security (or to the extent
expressly provided herein, the holder of any Capital Security) from
exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, including filing and voting claims in any
Proceeding, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION 13.6. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof
authorizes and directs the Trustee on his or her behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate
the subordination provided in this Article and appoints the Trustee his
or her attorney-in-fact for any and all such purposes.
SECTION 13.7. No Waiver of Subordination Provisions.
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 be otherwise
charged with.
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Without in any way limiting the generality of the immediately
preceding 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 Securities of any series, without
incurring responsibility to such Holders of the Securities and without
impairing or releasing the subordination provided in this Article or
the obligations hereunder of such Holders of the Securities to the
holders of Senior Indebtedness, do any one or more of the following:
(i) change the manner, place or terms of payment or extent the time of
payment of, or renew or alter, Senior Indebtedness, or otherwise amend
or supplement in any manner Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Indebtedness;
(iii) release any Person liable in any manner for the collection of
Senior Indebtedness; and (iv) exercise or refrain from exercising any
rights against the Company and any other Person.
SECTION 13.8. Notice to Trustee.
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 to or by the Trustee in respect of
the Securities. Notwithstanding the provisions of this Article or any
other provision of this Indenture, the Trustee shall not be charged
with knowledge of the existence of any facts that would prohibit the
making of any payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have received written
notice thereof from the Company or a holder of Senior Indebtedness or
from any trustee, agent or representative therefor; provided, however,
that if the Trustee shall not have received the notice provided for in
this Section at least two Business Days prior to the date upon which by
the terms hereof any monies may become payable for any purpose
(including, the payment of the principal of (and premium, if any, on)
or interest (including any Additional Interest) on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such monies and to apply
the same to the purpose for which they were received and shall not be
affected by any notice to the contrary that may be received by it
within two Business Days prior to such date.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself or herself to be a
- 96 -
holder of Senior Indebtedness (or a trustee or attorney-in-fact
therefor) to establish that such notice has been given by a holder of
Senior Indebtedness (or a trustee or attorney-in-fact therefor). In the
event that the Trustee determines in good faith that further evidence
is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Indebtedness held by such Person, the extent to
which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person
under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 13.9. Reliance on Judicial Order or Certificate
of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred
to in this Article, the Trustee, subject to the provisions of Section
6.1, and the Holders of the Securities shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in
which such Proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, conservator, liquidating trustee, custodian,
assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of
the Senior 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.
SECTION 13.10. Trustee Not Fiduciary for Holders of
Senior Indebtedness.
The Trustee, in its capacity as trustee under this Indenture,
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if it shall in
good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other Person cash, property or securities
to which any holders of Senior Indebtedness shall be entitled by virtue
of this Article or otherwise.
- 97 -
SECTION 13.11. Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's
Rights.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article with respect to any Senior
Indebtedness that may at any time be 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.
SECTION 13.12. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article shall in such case (unless the
context otherwise requires) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition
to or in place of the Trustee.
SECTION 13.13. Certain Conversions or Exchanges Deemed
Payment.
For purposes of this Article only, (a) the issuance and delivery
of junior securities upon conversion or exchange of Securities of any
series shall not be deemed to constitute a payment or distribution on
account of the principal of (or premium, if any, on) or interest
(including any Additional Interest) on such Securities or on account of
the purchase or other acquisition of such Securities, and (b) the
payment, issuance or delivery of cash, property or securities (other
than junior securities) upon conversion or exchange of a Security of
any series shall be deemed to constitute payment on account of the
principal of such security. For the purposes of this Section, the term
"junior securities" means (i) shares of any stock of any class of the
Company, and (ii) securities of the Company that are subordinated in
right of payment to all Senior Indebtedness that may be outstanding at
the time of issuance or delivery of such securities to substantially
the same extent as, or to a greater extent than, the Securities are so
subordinated as provided in this Article.
* * * *
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be
- 98 -
an original, but all such counterparts shall together
constitute but one and the same instrument.
[Remainder of page left intentionally blank; signatures appear
on following page.]
- 99 -
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above
written.
Attest: __________________ FIRST EMPIRE STATE CORPORATION
By: _______________________________
Name:
Title:
Attest: __________________ BANKERS TRUST COMPANY, as
Trustee, and not in its
individual capacity
By: _______________________________
Name:
Title:
- 100 -
ANNEX A
FORM OF RESTRICTED SECURITIES CERTIFICATE
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Section 3.6(b) of
the Indenture referred to below)
[ ],
as Securities Registrar
[address]
Re: [Title of Securities] of First Empire State
Corporation (the "Securities")
Reference is made to the Junior Subordinated Indenture, dated as
of June 6, 1997 (the "Indenture"), between First Empire State
Corporation, a New York corporation, and Bankers Trust Company, as
Trustee. Terms used herein and defined in the Indenture or in
Regulation S, Rule 144A or Rule 144 under the U.S. Securities Act of
1933 (the "Securities Act") are used here as so defined.
This certificate relates to $ aggregate principal amount
of Securities, which are evidenced by the following certificate(s)
(the "Specified Securities"):
CUSIP No(s).
CERTIFICATE No(s).
CURRENTLY IN GLOBAL FORM: Yes _____ No ____ (check one)
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole
beneficial owner of the Specified Securities or (ii) it is acting on
behalf of all the beneficial owners of the Specified Securities and is
duly authorized by them to do so. Such beneficial owner or owners are
referred to herein collectively as the "Owner". If the Specified
Securities are represented by a Global Security, they are held through
a Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are
- 101 -
not represented by a Global Security, they are registered in
the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in
the form of a Restricted Security. In connection with such transfer,
the Owner hereby certifies that, unless such transfer is being effected
pursuant to an effective registration statement under the Securities
Act, it is being effected in accordance with Rule 144A, Rule 904 of
Regulation S or Rule 144 under the Securities Act and all applicable
securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies that
(1) Rule 144A Transfers. If the transfer is being
effected in accordance with Rule 144A:
(A) the Specified Securities are being transferred to a
person that the Owner and any person acting on its behalf
reasonably believe is a "qualified institutional buyer"
within the meaning of Rule 144A, acquiring for its own
account or for the account of a qualified institutional
buyer; and
(B) the Owner and any person acting on its behalf have
taken reasonable steps to ensure that the Transferee is aware
that the Owner may be relying on Rule 144A in connection with
the transfer; and
(2) Rule 904 Transfers. If the transfer is being
effected in accordance with Rule 904:
(A) the Owner is not a distributor of the Securities, an
affiliate of the Company or any such distributor or a person
acting in behalf of any of the foregoing;
(B) the offer of the Specified Securities was
not made to a person in the United States;
(C) either;
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner
and any person acting on its behalf reasonably believed
that the Transferee was outside the United States, or
- 102 -
(ii) the transaction is being executed in, on or
through the facilities of the Eurobond market, as
regulated by the Association of International Bond
Dealers, or another designated offshore securities
market and neither the Owner nor any person acting on
its behalf know that the transaction has been
prearranged with a buyer in the United States;
(D) no directed selling efforts within the meaning of
Rule 902 of Regulation S have been made in the United States
by or on behalf of the Owner or any affiliate thereof; and
(E) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
(3) Rule 144 Transfers. If the transfer is being
effected pursuant to Rule 144:
(A) the transfer is occurring after a holding period of
at least two years (computed in accordance with paragraph (d)
of Rule 144) has elapsed since the date the Specified
Securities were acquired from the Company or from an
affiliate (as such term is defined in Rule 144) of the
Company, whichever is later, and is being effected in
accordance with the applicable amount, manner of sale and
notice requirements of paragraphs (e), (f) and (h) of Rule
144;
(B) the transfer is occurring after a holding period by
the Owner of at least three years has elapsed since the date
the Specified Securities were acquired from the Company or
from an affiliate (as such term is defined in Rule 144) of
the Company, whichever is later, and the Owner is not, and
during the preceding three months has not been, an affiliate
of the Company; or
(C) the Owner is a Qualified Institutional Buyer under
Rule 144A or has acquired the Securities otherwise in
accordance with Sections (1), (2) or (3) hereof and is
transferring the Securities to an institutional accredited
investor in a transaction exempt from the requirements of the
Securities Act.
- 103 -
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and the Initial Purchasers
(as defined in the Trust Agreement relating to the Issuer Trust to
which the Securities were initially issued).
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this
certificate.)
Dated: ____________________ By: ______________________________
Name:
Title:
(If the Undersigned is a corporation, partnership
or fiduciary, the title of the person signing on
behalf of the Undersigned must be stated.)
- 104 -
Exhibit 4.3
================================================================================
GUARANTEE AGREEMENT
Between
FIRST EMPIRE STATE CORPORATION
(as Guarantor)
and
BANKERS TRUST COMPANY
(as Guarantee Trustee)
dated as of
June 6, 1997
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I. DEFINITIONS
Section 1.1. Definitions................................ 2
ARTICLE II. TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application........... 5
Section 2.2. List of Holders............................ 6
Section 2.3. Reports by the Guarantee Trustee........... 6
Section 2.4. Periodic Reports to the Guarantee Trustee.. 6
Section 2.5. Evidence of Compliance with Conditions
Precedent.................................. 6
Section 2.6. Events of Default; Waiver.................. 7
Section 2.7. Event of Default; Notice................... 7
Section 2.8. Conflicting Interests...................... 7
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE
TRUSTEE
Section 3.1. Powers and Duties of the Guarantee
Trustee.................................... 7
Section 3.2. Certain Rights of Guarantee Trustee........ 9
Section 3.3. Indemnity.................................. 11
Section 3.4. Expenses................................... 11
ARTICLE IV. GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee; Eligibility............. 11
Section 4.2. Appointment, Removal and Resignation
of the Guarantee Trustee................... 12
ARTICLE V. GUARANTEE
Section 5.1. Guarantee.................................. 13
Section 5.2. Waiver of Notice and Demand................ 13
Section 5.3. Obligations Not Affected................... 13
Section 5.4. Rights of Holders.......................... 14
Section 5.5. Guarantee of Payment....................... 15
Section 5.6. Subrogation................................ 15
Section 5.7. Independent Obligations.................... 15
ARTICLE VI. COVENANTS AND SUBORDINATION
Section 6.1. Subordination.............................. 16
Section 6.2. Pari Passu Guarantees...................... 16
ARTICLE VII. TERMINATION
Section 7.1. Termination................................ 16
ARTICLE VIII. MISCELLANEOUS
Section 8.1. Successors and Assigns..................... 16
Section 8.2. Amendments................................. 17
Section 8.3. Notices.................................... 17
Section 8.4. Benefit.................................... 18
Section 8.5. Interpretation............................. 18
Section 8.6. Governing Law.............................. 19
Section 8.7. Counterparts............................... 19
- ii -
Certain Sections of this Guarantee Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Guarantee Agreement
Act Section Section
--------------- -------------------
(ss.) 310(a)(1)................................. 4.1(a)
(a)(2).................................. 4.1(a)
(a)(3).................................. Not Applicable
(a)(4).................................. Not Applicable
(b)..................................... 2.8, 4.1(c)
(ss.) 311(a).................................... Not Applicable
(b)..................................... Not Applicable
(ss.) 312(a).................................... 2.2(a)
(b)..................................... 2.2(b)
(c)..................................... Not Applicable
(ss.) 313(a).................................... 2.3
(a)(4).................................. 2.3
(b)..................................... 2.3
(c)..................................... 2.3
(d)..................................... 2.3
(ss.) 314(a).................................... 2.4
(b)..................................... 2.4
(c)(1).................................. 2.5
(c)(2).................................. 2.5
(c)(3).................................. 2.5
(e)..................................... 1.1, 2.5, 3.2
(ss.) 315(a).................................... 3.1(d)
(b)..................................... 2.7
(c)..................................... 3.1(c)
(d)..................................... 3.1(d)
(e)..................................... Not Applicable
(ss.) 316(a).................................... 1.1,2.6, 5.4
(a)(1)(A)............................... 5.4
(a)(1)(B)............................... 5.4
(a)(2).................................. Not Applicable
(b)..................................... 5.3
(c)..................................... Not Applicable
(ss.) 317(a)(1)................................. Not Applicable
(a)(2).................................. Not Applicable
(b)..................................... Not Applicable
(ss.) 318(a).................................... 2.1
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Guarantee Agreement.
- iii -
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of June 6, 1997 is
executed and delivered by FIRST EMPIRE STATE CORPORATION, a New York
corporation (the "Guarantor") having its principal office at One M&T
Plaza, Buffalo, New York 14240 and BANKERS TRUST COMPANY, a New York
banking corporation, as trustee (the "Guarantee Trustee"), for the
benefit of the Holders (as defined herein) from time to time of the
Capital Securities (as defined herein) of First Empire Capital Trust
II, a Delaware statutory business trust (the "Issuer Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement
(the "Trust Agreement"), dated as of June 6, 1997, among First Empire
State Corporation, as Depositor, Bankers Trust Company, as Property
Trustee (the "Property Trustee"), Bankers Trust (Delaware), as Delaware
Trustee (the "Delaware Trustee") (collectively, the "Issuer Trustees")
and the Holders from time to time of preferred undivided beneficial
ownership interests in the assets of the Issuer Trust, the Issuer Trust
is issuing $100,000,000 aggregate Liquidation Amount (as defined
herein) of its 8.277% Capital Securities, Liquidation Amount $1,000 per
capital security (the "Capital Securities"), representing preferred
undivided beneficial ownership interests in the assets of the Issuer
Trust and having the terms set forth in the Trust Agreement;
WHEREAS, the Capital Securities will be issued by the Issuer
Trust and the proceeds thereof, together with the proceeds from the
issuance of the Issuer Trust's Common Securities (as defined herein),
will be used to purchase the Junior Subordinated Debentures due June 1,
2027 (as defined in the Trust Agreement) (the "Junior Subordinated
Debentures") of the Guarantor which will be deposited with Bankers
Trust Company, as Property Trustee under the Trust Agreement, as trust
assets; and
WHEREAS, as incentive for the Holders to purchase the Capital
Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth herein, to pay to the Holders of the
Capital Securities the Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the purchase of the
Capital Securities by each Holder, which purchase the Guarantor hereby
acknowledges shall benefit the Guarantor, and intending to be legally
bound hereby, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time of the
Capital Securities.
ARTICLE I. DEFINITIONS
SECTION 1.1. Definitions.
As used in this Guarantee Agreement, the terms set forth
below shall, unless the context otherwise requires, have the following
meanings. Capitalized terms used but not otherwise defined herein shall
have the meanings assigned to such terms in the Trust Agreement as in
effect on the date hereof.
"Additional Amounts" has the meaning specified in the
Trust Agreement.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Capital Securities" shall have the meaning specified in the
first recital of this Guarantee Agreement.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer Trust.
"Distributions" means preferential cumulative cash
distributions accumulating from June 6, 1997 and payable semi-annually
in arrears on June 1 and December 1 of each year, commencing December
1, 1997, at the annual rate of 8.277% of the Liquidation Amount.
"Event of Default" means (i) a default by the Guarantor in
any of its payment obligations under this Guarantee Agreement, or (ii)
a default by the Guarantor in any other obligation hereunder that
remains unremedied for 30 days.
"Guarantee Agreement" means this Guarantee Agreement, as
modified, amended or supplemented from time to time.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Capital
Securities, to the extent not paid or made by or on behalf of the
Issuer Trust: (i) any accrued and unpaid Distributions (as defined in
the Trust Agreement) required to be paid on the Capital
- 2 -
Securities, to the extent the Issuer Trust shall have funds on hand
available therefor at such time, (ii) the Redemption Price, with
respect to the Capital Securities called for redemption by the Issuer
Trust to the extent that the Issuer Trust shall have funds on hand
available therefor at such time, and (iii) upon a voluntary or
involuntary termination, winding-up or liquidation of the Issuer Trust,
unless Junior Subordinated Debentures are distributed to the Holders,
the lesser of (a) the aggregate of the Liquidation Amount and all
accumulated and unpaid Distributions to the date of payment to the
extent the Issuer Trust shall have funds on hand available to make such
payment at such time and (b) the amount of assets of the Issuer Trust
remaining available for distribution to Holders in liquidation of the
Issuer Trust (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means Bankers Trust Company, until a
Successor Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee Agreement and
thereafter means each such Successor Guarantee Trustee.
"Guarantor" shall have the meaning specified in the first
paragraph of this Guarantee Agreement.
"Holder" means any holder, as registered on the books and
records of the Issuer Trust, of any Capital Securities; provided,
however, that, in determining whether the holders of the requisite
percentage of Capital Securities have given any request, notice,
consent or waiver hereunder, "Holder" shall not include the Guarantor,
the Guarantee Trustee, or any Affiliate of the Guarantor or the
Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated as
of June 6, 1997, between First Empire State Corporation and Bankers
Trust Company, as trustee, as may be modified, amended or supplemented
from time to time.
"Issuer Trust" shall have the meaning specified in the first
paragraph of this Guarantee Agreement.
"Liquidation Amount" means the stated amount of $1,000
per Capital Security.
"Majority in Liquidation Amount of the Capital Securities"
means, except as provided by the Trust Indenture Act, Capital
Securities representing more than 50% of the aggregate Liquidation
Amount of all then outstanding Capital Securities issued by the Issuer
Trust.
"Like Amount" means (i) with respect to a redemption of
Trust Securities, Trust Securities having a Liquidation Amount
- 3 -
equal to that portion of the principal amount of Junior Subordinated
Debentures to be contemporaneously redeemed in accordance with the
Indenture, allocated to the Common Securities and to the Capital
Securities based upon the relative Liquidation Amounts of such classes
and (ii) with respect to a distribution of Junior Subordinated
Debentures to Holders of Trust Securities in connection with a
dissolution or liquidation of the Issuer Trust, Junior Subordinated
Debentures having a principal amount equal to the Liquidation Amount of
the Trust Securities of the Holder to whom such Junior Subordinated
Debentures are distributed.
"Officers' Certificate" means a certificate signed by the
Chief Executive Officer, President or a Senior Vice President or Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary of the Company, and delivered to the
Guarantee Trustee. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Guarantee
Agreement shall include:
(a) a statement by each officer signing the Officers'
Certificate that such officer has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by such officer in
rendering the Officers' Certificate;
(c) a statement that such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such
officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint
stock company, limited liability company, trust, unincorporated
association, or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Redemption Date" means, with respect to any Capital Security
to be redeemed, the date fixed for such redemption by or pursuant to
the Trust Agreement; provided that each Junior Subordinated Debenture
Redemption Date and the stated maturity of the Junior Subordinated
Debentures shall be a Redemption Date for a Like Amount of Capital
Securities.
- 4 -
"Redemption Price" shall have the meaning specified in
the Trust Agreement.
"Responsible Officer" means, when used with respect to the
Guarantee Trustee, any officer assigned to the Corporate Trust Office,
including any managing director, vice president, assistant vice
president, assistant treasurer, assistant secretary or any other
officer of the Guarantee Trustee customarily performing functions
similar to those performed by any of the above designated officers and
having direct responsibility for the administration of this Indenture,
and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Senior Indebtedness" shall have the meaning specified
in the Indenture.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee under
Section 4.1.
"Trust Agreement" means the Amended and Restated Trust
Agreement, dated June 6, 1997, executed by First Empire State
Corporation, as Depositor, Bankers Trust (Delaware), as Delaware
Trustee, and Bankers Trust Company, as Property Trustee.
"Trust Indenture Act" means the Trust Indenture Act of
1939 (15 U.S.C. ss.ss. 77aaa-77bbbb), as amended.
"Trust Securities" means the Common Securities and the
Capital Securities.
ARTICLE II. TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to
be a part of and govern this Guarantee Agreement, the provision of the
Trust Indenture Act shall control. If any provision of this Guarantee
Agreement modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as
the case may be.
- 5 -
SECTION 2.2. List of Holders.
(a) The Guarantor will furnish or cause to be furnished to
the Guarantee Trustee a list of Holders at the following times:
(i) semi-annually, not more than 15 days after May 15
and November 15 in each year, a list, in such form as the Guarantee
Trustee may reasonably require, of the names and addresses of the
Holders as of such May 15 and November 15; and
(ii) at such other times as the Guarantee Trustee may
request in writing, within 30 days after the receipt by the Guarantor
of any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished.
(b) The Guarantee Trustee shall comply with the requirements
of Section 312(b) of the Trust Indenture Act.
SECTION 2.3. Reports by the Guarantee Trustee.
Not later than January 31 of each year, commencing January
31, 1998, the Guarantee Trustee shall provide to the Holders such
reports, if any, as are required by Section 313 of the Trust Indenture
Act in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, and the
Holders such documents, reports and information, if any, as required by
Section 314 of the Trust Indenture Act and the compliance certificate
required by Section 314 of the Trust Indenture Act, in the form, in the
manner and at the times required by Section 314 of the Trust Indenture
Act.
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such
evidence of compliance with such conditions precedent, if any, provided
for in this Guarantee Agreement that relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
- 6 -
SECTION 2.6. Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the
Capital Securities may, by vote, on behalf of the Holders, waive any
past Event of Default and its consequences. Upon such waiver, any such
Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent
therefrom.
SECTION 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders, notices of all Events of Default known
to the Guarantee Trustee, unless such Events of Default have been cured
before the giving of such notice; provided that, except in the case of
a default in the payment of a Guarantee Payment, the Guarantee Trustee
shall be protected in withholding such notice if and so long as the
Board of Directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Guarantee Trustee in good
faith determines that the withholding of such notice is in the
interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless a Responsible Officer charged
with the administration of this Guarantee Agreement shall have received
written notice of such Event of Default.
SECTION 2.8. Conflicting Interests.
The Trust Agreement shall be deemed to be specifically
described in this Guarantee Agreement for the purposes of clause (i) of
the first proviso contained in Section 310(b) of the Trust Indenture
Act.
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee Trustee shall
not transfer this Guarantee Agreement to any Person except a Holder
exercising his or her rights pursuant to Section 5.4(iv) or to a
Successor Guarantee Trustee on acceptance by such Successor Guarantee
Trustee of its appointment to act as Successor Guarantee Trustee
hereunder. The right, title
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and interest of the Guarantee Trustee, as such, hereunder shall
automatically vest in any Successor Guarantee Trustee, upon acceptance
by such Successor Guarantee Trustee of its appointment hereunder, and
such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing,
the Guarantee Trustee shall enforce this Guarantee Agreement for the
benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have
occurred, shall be obligated to perform only such duties as are
specifically set forth in this Guarantee Agreement (including pursuant
to Section 2.1), and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. If an Event of
Default has occurred (that has not been cured or waived pursuant to
Section 2.6), the Guarantee Trustee shall exercise such of the rights
and powers vested in it by this Guarantee Agreement, and use the same
degree of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of his or
her own affairs.
(d) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee 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 any 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 Guarantee
Trustee shall be determined solely by the express provisions of this
Guarantee Agreement (including pursuant to Section 2.1), and the
Guarantee Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Guarantee Agreement (including pursuant to Section 2.1); and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
Guarantee Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or opinions that by
any provision hereof or of the Trust Indenture Act are specifically
required to be furnished
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to the Guarantee Trustee, the Guarantee Trustee shall be under a duty
to examine the same to determine whether or not they conform to the
requirements of this Guarantee Agreement;
(ii) The Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee Trustee
was negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii) The Guarantee 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 Liquidation Amount of the Capital Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee Agreement;
and
(iv) No provision of this Guarantee Agreement shall
require the Guarantee 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 the
Guarantee Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not assured to it under the
terms of this Guarantee Agreement or adequate indemnity against such
risk or liability is not reasonably assured to it.
SECTION 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely and
shall be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document reasonably
believed by it to be genuine and to have been signed, sent or presented
by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated
by this Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or omitting to take
any action hereunder, the Guarantee Trustee
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(unless other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request from the
Guarantee Trustee, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal
counsel, and the advice or written opinion of such legal counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in accordance with such advice
or opinion. Such legal counsel may be legal counsel to the Guarantor or
any of its Affiliates and may be one of its employees. The Guarantee
Trustee shall have the right at any time to seek instructions
concerning the administration of this Guarantee Agreement from any
court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such Holder
shall have provided to the Guarantee Trustee such security and
indemnity as would satisfy a reasonable person in the position of the
Guarantee Trustee, against the costs, expenses (including attorneys'
fees and expenses) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Guarantee Trustee.
(vi) The Guarantee Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through its agents or attorneys, and the Guarantee
Trustee shall not be responsible for any negligence or wilful
misconduct on the part of any such agent or attorney appointed with due
care by it hereunder.
(viii) Whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Guarantee Trustee (A) may request
instructions from the Holders, (B) may refrain
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from enforcing such remedy or right or taking such other action until
such instructions are received and (C) shall be fully protected in
acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed
to impose any duty or obligation on the Guarantee Trustee to perform
any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act
or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Guarantee Trustee shall
be construed to be a duty to act in accordance with such power and
authority.
SECTION 3.3. Indemnity.
The Guarantor agrees to indemnify the Guarantee Trustee for,
and to hold it harmless against, any loss, liability or expense
incurred without negligence, wilful misconduct or bad faith on the part
of the Guarantee Trustee, arising out of or in connection with the
acceptance or administration of this Guarantee Agreement, including the
costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or
duties hereunder. The Guarantee Trustee will not claim or exact any
lien or charge on any Guarantee Payments as a result of any amount due
to it under this Guarantee Agreement.
SECTION 3.4. Expenses.
The Guarantor shall from time to time reimburse the Guarantee
Trustee for its expenses and costs (including reasonable attorneys' or
agents' fees) incurred in connection with the performance of its duties
hereunder.
ARTICLE IV. GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee
which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of
at least $50,000,000, and shall be a corporation meeting the
requirements of Section 310(c) of the Trust Indenture
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Act. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority, then, for the purposes of this Section and to the
extent permitted by the Trust Indenture Act, the combined capital and
surplus of such corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section
4.2.
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee
Trustee.
(a) No resignation or removal of the Guarantee Trustee and no
appointment of a Successor Guarantee Trustee pursuant to this Article
shall become effective until the acceptance of appointment by the
Successor Guarantee Trustee by written instrument executed by the
Successor Guarantee Trustee and delivered to the Holders and the
Guarantee Trustee.
(b) Subject to the immediately preceding paragraph, a
Guarantee Trustee may resign at any time by giving written notice
thereof to the Holders. The Guarantee Trustee shall appoint a successor
by requesting from at least three Persons meeting the eligibility
requirements such Person's expenses and charges to serve as the
Guarantee Trustee, and selecting the Person who agrees to the lowest
expenses and charges. If the instrument of acceptance by the Successor
Guarantee Trustee shall not have been delivered to the Guarantee
Trustee within 60 days after the giving of such notice of resignation,
the Guarantee Trustee may petition, at the expense of the Guarantor,
any court of competent jurisdiction for the appointment of a Successor
Guarantee Trustee.
(c) The Guarantee Trustee may be removed for cause at any
time by Act (within the meaning of Section 6.8 of the Trust Agreement)
of the Holders of at least a Majority in Liquidation Amount of the
Capital Securities, delivered to the Guarantee Trustee.
(d) If a resigning Guarantee Trustee shall fail to appoint a
successor, or if a Guarantee Trustee shall be removed or
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become incapable of acting as Guarantee Trustee, or if any vacancy
shall occur in the office of any Guarantee Trustee for any cause, the
Holders of the Capital Securities, by Act of the Holders of record of
not less than 25% in aggregate Liquidation Amount of the Capital
Securities then outstanding delivered to such Guarantee Trustee, shall
promptly appoint a successor Guarantee Trustee. If no Successor
Guarantee Trustee shall have been so appointed by the Holders of the
Capital Securities and such appointment accepted by the Successor
Guarantee Trustee, any Holder, on behalf of himself and all others
similarly situated, may petition any court of competent jurisdiction
for the appointment of a Successor Guarantee Trustee.
ARTICLE V. GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay
in full to the Holders the Guarantee Payments (without duplication of
amounts theretofore paid by or on behalf of the Issuer Trust), as and
when due, regardless of any defense, right of set-off or counterclaim
which the Issuer Trust may have or assert, except the defense of
payment. The Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to
the Holders or by causing the Issuer Trust to pay such amounts to the
Holders. The Guarantor shall give prompt written notice to the
Guarantee Trustee in the event it makes any direct payment hereunder.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the
Guarantee Agreement and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a
proceeding first against the Guarantee Trustee, the Issuer Trust or any
other Person before proceeding against the Guarantor, protest, notice
of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the
Guarantor under this Guarantee Agreement shall in no way be affected or
impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer Trust of any express or
implied agreement, covenant, term or condition
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relating to the Capital Securities to be performed or observed by
the Issuer Trust;
(b) the extension of time for the payment by the Issuer Trust
of all or any portion of the Distributions (other than an extension of
time for payment of Distributions that results from the extension of
any interest payment period on the Junior Subordinated Debentures as so
provided in the Indenture), Redemption Price, Liquidation Distribution
or any other sums payable under the terms of the Capital Securities or
the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Capital Securities;
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Capital Securities, or any action on the part of the
Issuer Trust granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Issuer Trust or any of the assets of the Issuer Trust;
(e) any invalidity of, or defect or deficiency in, the
Capital Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor
(other than payment of the underlying obligation), it being the intent
of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice
to, or obtain the consent of, the Guarantor with respect to the
happening of any of the foregoing.
SECTION 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee
Agreement will be deposited with the Guarantee Trustee to be held for
the benefit of the Holders; (ii) the Guarantee Trustee has the right to
enforce this Guarantee Agreement on
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behalf of the Holders; (iii) the Holders of a Majority in Liquidation
Amount of the Capital Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available
to the Guarantee Trustee in respect of this Guarantee Agreement or
exercising any trust or power conferred upon the Guarantee Trustee
under this Guarantee Agreement; and (iv) any Holder may institute a
legal proceeding directly against the Guarantor to enforce its rights
under this Guarantee Agreement, without first instituting a legal
proceeding against the Guarantee Trustee, the Issuer Trust or any other
Person.
SECTION 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and
not of collection. This Guarantee Agreement will not be discharged
except by payment of the Guarantee Payments in full (without
duplication of amounts theretofore paid by the Issuer Trust) or upon
the distribution of Junior Subordinated Debentures to Holders as
provided in the Trust Agreement.
SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all rights (if any) of
the Holders against the Issuer Trust in respect of any amounts paid to
the Holders by the Guarantor under this Guarantee Agreement; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any
rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment
under this Guarantee Agreement, at the time of any such payment, any
amounts are due and unpaid under this Guarantee Agreement. If any
amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
SECTION 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer Trust with respect to the
Capital Securities and that the Guarantor shall be liable as principal
and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of Section
5.3 hereof.
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ARTICLE VI. COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination.
This Guarantee Agreement will constitute an unsecured
obligation of the Guarantor and will rank subordinate and junior in
right of payment to all Senior Indebtedness of the Guarantor to the
extent and in the manner set forth in the Indenture with respect to the
Junior Subordinated Debentures, and the provisions of Article XIII of
the Indenture will apply, mutatis mutandis, to the obligations of the
Guarantor hereunder. The obligations of the Guarantor hereunder do not
constitute Senior Indebtedness of the Guarantor.
SECTION 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee
Agreement shall rank pari passu with any similar guarantee agreements
issued by the Guarantor on behalf of the holders of preferred or
capital securities issued by the Issuer Trust and with any other
security, guarantee or other obligation that is expressly stated to
rank pari passu with the obligations of the Guarantor under this
Guarantee Agreement.
ARTICLE VII. TERMINATION
SECTION 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further
force and effect upon (i) full payment of the Redemption Price of all
Capital Securities, (ii) the distribution of Junior Subordinated
Debentures to the Holders in exchange for all of the Capital Securities
or (iii) full payment of the amounts payable in accordance with Article
IX of the Trust Agreement upon liquidation of the Issuer Trust.
Notwithstanding the foregoing, this Guarantee Agreement will continue
to be effective or will be reinstated, as the case may be, if at any
time any Holder is required to repay any sums paid with respect to
Capital Securities or this Guarantee Agreement.
ARTICLE VIII. MISCELLANEOUS
SECTION 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the
Holders of the Capital Securities then
- 16 -
outstanding. Except in connection with a consolidation, merger or sale
involving the Guarantor that is permitted under Article VIII of the
Indenture and pursuant to which the assignee agrees in writing to
perform the Guarantor's obligations hereunder, the Guarantor shall not
assign its obligations hereunder, and any purported assignment that is
not in accordance with these provisions shall be void.
SECTION 8.2. Amendments.
Except with respect to any changes that do not materially
adversely affect the rights of the Holders (in which case no consent of
the Holders will be required), this Guarantee Agreement may only be
amended with the prior approval of the Holders of not less than a
Majority in Liquidation Amount of the Capital Securities. The
provisions of Article VI of the Trust Agreement concerning meetings of
the Holders shall apply to the giving of such approval.
SECTION 8.3. Notices.
Any notice, request or other communication required or
permitted to be given hereunder shall be in writing, duly signed by the
party giving such notice, and delivered, telecopied (confirmed by
delivery of the original) or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address or telecopy
number set forth below or such other address or telecopy number or to
the attention of such other Person as the Guarantor may give notice to
the Holders:
First Empire State Corporation
One M&T Plaza
Buffalo, New York 14246
Facsimile No.: (716) 842-5376
Attention: Office of the Secretary
(b) if given to the Issuer Trust, in care of the Guarantee
Trustee, at the Issuer Trust's (and the Guarantee Trustee's) address
set forth below or such other address or telecopy number or to the
attention of such other Person as the Guarantee Trustee on behalf of
the Issuer Trust may give notice to the Holders:
c/o Bankers Trust Company
Four Albany Street - 4th Floor
New York, NY 10006
Facsimile No.: (212) 250-6961
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Attention: Corporate Trust and Agency Group;
Corporate Market Services
with a copy to:
First Empire State Corporation
One M&T Plaza
Buffalo, New York 14246
Facsimile No.: (716) 842-5376
Attention: Office of the Secretary
(c) if given to the Guarantee Trustee:
Bankers Trust Company
Four Albany Street - 4th Floor
New York, NY 10006
Facsimile No.: (212) 250-6961
Attention: Corporate Trust and Agency Group
Corporate Market Services
(d) if given to any Holder, at the address set forth on
the books and records of the Issuer Trust.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by
first class mail, postage prepaid, except that if a notice or other
document is refused delivery or cannot be delivered because of a
changed address of which no notice was given, such notice or other
document shall be deemed to have been delivered on the date of such
refusal or inability to deliver.
SECTION 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the
Holders and is not separately transferable from the Capital Securities.
SECTION 8.5. Interpretation.
In this Guarantee Agreement, unless the context otherwise
requires:
(a) capitalized terms used in this Guarantee Agreement but
not defined in the preamble hereto have the respective meanings
assigned to them in Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement
has the same meaning throughout;
- 18 -
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to Articles
and Sections are to Articles and Sections of this Guarantee Agreement
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise defined
in this Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and
vice versa; and
(g) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders.
SECTION 8.6. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
SECTION 8.7. Counterparts.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one
and the same instrument.
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THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
FIRST EMPIRE STATE CORPORATION,
as Guarantor
By:
----------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as Guarantee Trustee, and not
in its individual capacity
By:
----------------------------------
Name:
Title:
- 20 -
Exhibit No. 99.1
- -------------------------------------------------------------------------------
FIRST EMPIRE STATE CORPORATION ONE M&T PLAZA BUFFALO, NEW YORK 14240
NEWS RELEASE
- -------------------------------------------------------------------------------
CONTACT: Gary S. Paul FOR IMMEDIATE RELEASE
(716) 842-5130 June 6, 1997
BUFFALO, New York--First Empire State Corporation ("First Empire") (AMEX:FES)
announced the completion of a $100 million capital securities offering. The
30-year offering of 8.277 percent fixed-rate, cumulative capital securities was
sold through First Empire Capital Trust II (the "Trust"), a Delaware business
trust that was formed by First Empire. The offering provides investors with call
protection for ten years. Preferential cash distributions will be paid
semi-annually, beginning December 1, 1997.
The Trust was formed solely to issue tax-advantaged securities and advance the
proceeds to First Empire by purchasing its junior subordinated debt. The issue
will qualify as Tier 1 capital for First Empire and be available for general
corporate purposes. Payments on the junior subordinated debt, which are in turn
passed through the Trust to the preferred holders, will be serviced through
existing liquidity and cash flow sources of First Empire.
First Empire, which reported consolidated total assets of $13.1
billion at March 31, 1997, is a bank holding company whose other subsidiaries
include Manufacturers and Traders Trust Company (Buffalo, New York) and M&T
Bank, National Association (Oakfield,
New York).
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