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SUBORDINATED INDENTURE
UNION BANKSHARES, LTD.,
as Issuer
to
AMERICAN SECURITIES TRANSFER & TRUST, INC.,
as Trustee
____% Junior Subordinated Debentures
Dated as of ________________, 1998
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS...............................................................................1
ARTICLE II
DESCRIPTION, TERMS, CONDITIONS, REGISTRATION AND EXCHANGE
OF THE JUNIOR SUBORDINATED DEBENTURES
Section 2.01. Designation and Principal Amount...........................................8
Section 2.02. Maturity...................................................................8
Section 2.03. Form and Payment...........................................................9
Section 2.04. Global Subordinated Debenture..............................................9
Section 2.05. Interest..................................................................11
Section 2.06. Execution, Authentication, Delivery and Dating............................12
Section 2.07. Registration and Transfer.................................................12
Section 2.08. Mutilated, Destroyed, Lost and Stolen Junior Subordinated Debentures......13
ARTICLE III
REDEMPTION OF JUNIOR SUBORDINATED DEBENTURES
Section 3.01. Redemption................................................................14
Section 3.02. Special Event Redemption..................................................14
Section 3.03. Optional Redemption by Company............................................14
Section 3.04. Notice of Redemption......................................................15
Section 3.05. Payment Upon Redemption...................................................16
Section 3.06. No Sinking Fund...........................................................17
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
Section 4.01. Extension of Interest Payment Period......................................17
Section 4.02. Notice of Extension.......................................................17
Section 4.03. Limitation of Transactions During Extension...............................18
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
Section 5.01. Payment of Principal and Interest.........................................18
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TABLE OF CONTENTS
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Section 5.02. Maintenance of Agency.....................................................18
Section 5.03. Paying Agents.............................................................19
Section 5.04. Appointment to Fill Vacancy in Office of Trustee..........................20
Section 5.05. Compliance with Consolidation Provisions..................................20
Section 5.06. Restrictions on Certain Payments..........................................20
Section 5.07. Covenants as to the Trust.................................................20
ARTICLE VI
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND
THE TRUSTEE
Section 6.01. Company to Furnish Trustee Names and Addresses of Securityholders.........21
Section 6.02. Preservation of Information; Communications with Securityholders..........21
Section 6.03. Reports by the Company....................................................21
Section 6.04. Reports by the Trustee....................................................22
ARTICLE VII
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 7.01. Events of Default.........................................................22
Section 7.02. Collection of Indebtedness and Suits for Enforcement by Trustee...........24
Section 7.03. Application of Moneys Collected...........................................26
Section 7.04. Limitation on Suits.......................................................26
Section 7.05. Rights and Remedies Cumulative; Delay or Omission Not Waiver..............27
Section 7.06. Control by Securityholders................................................27
Section 7.07. Undertaking to Pay Costs..................................................28
ARTICLE VIII
FORM OF JUNIOR SUBORDINATED DEBENTURE AND ORIGINAL ISSUE
Section 8.01. Form of Junior Subordinated Debenture.....................................28
Section 8.02. Original Issue of Junior Subordinated Debentures..........................28
ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.01. Certain Duties and Responsibilities of the Trustee........................28
Section 9.02. Certain Rights of Trustee.................................................30
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TABLE OF CONTENTS
(continued)
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Section 9.03. Trustee not Responsible for Recitals or Issuance of the Junior
Subordinated Debentures...................................................31
Section 9.04. May Hold Junior Subordinated Debentures...................................31
Section 9.05. Moneys Held in Trust......................................................31
Section 9.06. Compensation and Reimbursement............................................31
Section 9.07. Reliance on Officers' Certificate.........................................32
Section 9.08. Disqualification; Conflicting Interests...................................32
Section 9.09. Corporate Trustee Required; Eligibility...................................32
Section 9.10. Resignation and Removal; Appointment of Successor.........................32
Section 9.11. Acceptance of Appointment by Successor....................................34
Section 9.12. Merger, Conversion, Consolidation or Succession to Business...............34
Section 9.13. Preferential Collection of Claims Against the Company.....................34
Section 9.14. Appointment of Authenticating Agent.......................................35
ARTICLE X
CONCERNING THE SECURITYHOLDERS
Section 10.01. Evidence of Action by Securityholders.....................................36
Section 10.02. Proof of Execution by Securityholders.....................................37
Section 10.03. Who May be Deemed Owners..................................................37
Section 10.04. Certain Junior Subordinated Debentures Owned by Company Disregarded.......37
Section 10.05. Actions Binding on Future Securityholders.................................38
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without the Consent of Securityholders............38
Section 11.02. Supplemental Indentures With Consent of Securityholders...................39
Section 11.03. Effect of Supplemental Indentures.........................................39
Section 11.04. Junior Subordinated Debentures Affected by Supplemental Indentures........39
Section 11.05. Execution of Supplemental Indentures......................................40
ARTICLE XII
SUCCESSOR CORPORATION
Section 12.01. Company May Consolidate, Etc..............................................40
Section 12.02. Successor Substituted.....................................................40
Section 12.03. Evidence of Consolidation, Etc., to Trustee...............................41
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TABLE OF CONTENTS
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ARTICLE XIII
SATISFACTION AND DISCHARGE
Section 13.01. Satisfaction and Discharge of Indenture...................................41
Section 13.02. Discharge of Obligations..................................................42
Section 13.03. Deposited Moneys to be Held in Trust......................................42
Section 13.04. Payment of Moneys held by Paying Agents...................................42
Section 13.05. Repayment to Company......................................................42
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01. No Recourse...............................................................42
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01. Effect on Successors and Assigns..........................................43
Section 15.02. Actions by Successor......................................................43
Section 15.03. Surrender of Company Powers...............................................43
Section 15.04. Notices...................................................................43
Section 15.05. Governing Law.............................................................44
Section 15.06. Treatment of Junior Subordinated Debentures as Debt.......................44
Section 15.07. Compliance Certificates and Opinions......................................44
Section 15.08. Payments on Business Days.................................................44
Section 15.09. Conflict with Trust Indenture Act.........................................44
Section 15.10. Counterparts..............................................................45
Section 15.11. Separability..............................................................45
Section 15.12. Assignment................................................................45
Section 15.13. Acknowledgment of Rights..................................................45
ARTICLE XVI
SUBORDINATION OF JUNIOR SUBORDINATED DEBENTURES
Section 16.01. Agreement to Subordinate..................................................45
Section 16.02. Default on Senior and Subordinated Debt...................................46
Section 16.03. Liquidation; Dissolution; Bankruptcy......................................46
Section 16.04. Subrogation...............................................................47
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TABLE OF CONTENTS
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Section 16.05. Trustee to Effectuate Subordination.......................................48
Section 16.06. Notice by the Company.....................................................48
Section 16.07. Rights of the Trustee; Holders of Senior and Subordinated Debt............49
Section 16.08. Subordination May Not be Impaired.........................................49
EXHIBIT A FORM OF JUNIOR SUBORDINATED DEBENTURE
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UNION BANKSHARES, LTD.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939,
AS AMENDED, AND SUBORDINATED INDENTURE,
DATED AS OF ________________, 1998
TRUST INDENTURE ACT SECTION SUBORDINATED INDENTURE SECTION
Section 310 15.09
Section 310(b) 9.08
Section 311 15.09
Section 311(a) 9.13
(b) 9.13
Section 312 15.09
Section 312(b) 6.02
Section 313 15.09
Section 313(a) 6.04
(b) 6.04
(c) 6.04
Section 314 15.09
Section 315 15.09
Section 316 15.09
Section 317 15.09
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Subordinated Indenture.
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SUBORDINATED INDENTURE (the "Indenture"), dated as of ________________,
1998, between UNION BANKSHARES, LTD., a Delaware corporation (the "Company") and
AMERICAN SECURITIES TRANSFER & TRUST, INC., a Colorado trust company, as trustee
(the "Trustee");
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of its securities to be known as its ____% Junior Subordinated
Debentures due ________________ 2028 (hereinafter referred to as the "Junior
Subordinated Debentures"), the form and substance of such Junior Subordinated
Debentures and the terms, provisions and conditions thereof to be set forth as
provided in this Indenture; and
WHEREAS, Union Bankshares Capital Trust I, a Delaware statutory
business trust (the "Trust"), has offered to the public $10,000,004 aggregate
liquidation amount of its ____% Cumulative Preferred Securities (the "Preferred
Securities"), representing undivided beneficial interests in the assets of the
Trust and proposes to invest the proceeds from such offering, together with the
proceeds of the issuance and sale by the Trust to the Company of $_____
aggregate liquidation amount of its ____% Common Securities, in $__________
aggregate principal amount of the Junior Subordinated Debentures; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this Indenture and all requirements necessary to make this Indenture a valid
instrument in accordance with its terms, and to make the Junior Subordinated
Debentures, when executed by the Company and authenticated and delivered by the
Trustee, the valid obligations of the Company; and
WHEREAS, to provide the terms and conditions upon which the Junior
Subordinated Debentures are to be authenticated, issued and delivered, the
Company has duly authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of
the Junior Subordinated Debentures by the holders thereof, it is mutually
covenanted and agreed as follows for the equal and ratable benefit of the
holders of Junior Subordinated Debentures:
ARTICLE I
DEFINITIONS
The terms defined in this Section (except as in this Indenture
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section and shall include the plural
as well as the singular. All other terms used in this Indenture that are defined
in the Trust Indenture Act of 1939, as amended, or that are by reference in said
Trust Indenture Act defined in the Securities Act of 1933, as amended (except as
herein otherwise expressly provided or unless the context otherwise requires),
shall have the meanings assigned to
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such terms in said Trust Indenture Act and in said Securities Act as in force at
the date of the execution of this Indenture.
"Accelerated Maturity Date" means, if the Company elects to accelerate
the Maturity Date in accordance with Section 2.02, the date selected by the
Company which is prior to the Scheduled Maturity Date, but is after
________________, 2003.
"Additional Sums" shall have the meaning set forth in Section 2.05(c).
"Administrative Trustees" has the meaning set forth in the Trust
Agreement.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person, (d) a partnership in which the specified Person is a
general partner, (e) any officer or director of the specified Person, and (f) if
the specified Person is an individual, any entity of which the specified Person
is an officer, director or general partner.
"Authenticating Agent" means an authenticating agent with respect to
the Junior Subordinated Debentures appointed by the Trustee pursuant to Section
9.14.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification.
"Business Day" means any day other than a day on which federal or state
banking institutions in the State of Colorado are authorized or obligated by
law, executive order or regulation to close or a day on which the Trustee is
closed.
"Capital Treatment Event" means the reasonable determination by the
Company that, as a result of any amendment to, or change (including any proposed
change) in, the laws (or any regulations thereunder) of the United States or any
political subdivision thereof or therein, or as a result of any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such proposed change, pronouncement or decision is announced on or after the
date of issuance of the Preferred Securities under the Trust Agreement, there is
more than an insubstantial risk of impairment of the Company's ability to treat
the Preferred Securities (or any substantial portion thereof) as "Tier I
Capital" (or the then equivalent thereof) for purposes of the capital adequacy
guidelines of the Federal Reserve, as then in effect and applicable to the
Company.
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"Certificate" means a certificate signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company. The Certificate need not comply with the provisions of Section
15.07.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this Indenture such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Securities" means undivided beneficial interests in the assets
of the Trust which rank pari passu with Preferred Securities issued by the
Trust; provided, however, that upon the occurrence of an Event of Default, the
rights of holders of Common Securities to payment in respect of Distributions
and payments upon liquidation, redemption and otherwise are subordinated to the
rights of holders of Preferred Securities.
"Company" means Union Bankshares, Ltd., a corporation duly organized
and existing under the laws of the State of Delaware, and, subject to the
provisions of Article XII, shall also include its successors and assigns.
"Compounded Interest" shall have the meaning set forth in Section 4.01.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 000 Xxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration.
"Coupon Rate" shall have the meaning set forth in Section 2.05(a).
"Custodian" means any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Debt" means with respect to any Person, whether recourse is to all or
a portion of the assets of such Person and whether or not contingent, (a) every
obligation of such Person for money borrowed; (b) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (c) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (d) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (e) every capital lease obligation of such Person; and (f) every
obligation of the type referred to in clauses (a) through (e) of another Person
and all dividends of another Person the payment of which, in either case, such
Person has guaranteed or for which such Person is responsible or liable,
directly or indirectly, as obligor or otherwise.
"Default" means any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Deferred Interest" shall have the meaning set forth in Section 4.01.
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"Depositary" means, with respect to Junior Subordinated Debentures
issued as a Global Subordinated Debenture, The Depository Trust Company, New
York, New York, another clearing agency, or any successor registered as a
clearing agency under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or other applicable statute or regulation, which, in each case,
shall be designated by the Company pursuant to either Section 2.01 or 2.04.
"Dissolution Event" means that as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance with
the Trust Agreement and the Junior Subordinated Debentures held by the Property
Trustee are to be distributed to the holders of the Trust Securities issued by
the Trust pro rata in accordance with the Trust Agreement.
"Distributions" shall have the meaning set forth in the Trust
Agreement.
"Event of Default" means any event specified in Section 7.01, continued
for the period of time, if any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 4.01.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Global Subordinated Debenture" means a Junior Subordinated Debenture
executed by the Company and delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction, all in accordance with this Indenture,
which shall be registered in the name of the Depositary or its nominee.
"Governmental Obligations" means securities that are (a) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America that, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on any
such Governmental Obligation held by such custodian for the account of the
holder of such depositary receipt; provided, however, that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"Herein," "hereof" and "hereunder," and other words of similar import,
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into in accordance with the terms hereof.
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"Interest Payment Date," when used with respect to any installment of
interest on the Junior Subordinated Debentures, means the date specified in the
Junior Subordinated Debenture as the fixed date on which an installment of
interest with respect to the Junior Subordinated Debentures is due and payable.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Investment Company Event" means the receipt by the Company and the
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 change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in Investment
Company Act Law"), the Trust is or will be considered an "investment company"
that is required to be registered under the Investment Company Act, which Change
in Investment Company Act Law becomes effective on or after the date of original
issuance of the Preferred Securities under the Trust Agreement.
"Junior Subordinated Debentures" means the ____% Junior Subordinated
Debentures due 2028 authenticated and delivered under this Indenture.
"Liquidation Amount" means the stated amount of $7.60 per Trust
Security.
"Maturity Date" shall have the meaning set forth in Section 2.02.
"Non Book-Entry Preferred Securities" shall have the meaning set forth
in Section 2.04(a).
"Officers' Certificate" means a certificate signed by the Chief
Executive Officer, the President or a Vice President and by the Chief Accounting
Officer or the Controller or an Assistant Controller or the Secretary or an
Assistant Secretary of the Company that is delivered to the Trustee in
accordance with the terms hereof. Each such certificate shall include the
statements provided for in Section 15.07, if and to the extent required by the
provisions thereof.
"Opinion of Counsel" means an opinion in writing of legal counsel, who
may be an employee of or counsel for the Company, that is delivered to the
Trustee in accordance with the terms hereof. Each such opinion shall include the
statements provided for in Section 15.07, if and to the extent required by the
provisions thereof.
"Outstanding," when used with reference to Junior Subordinated
Debentures means, subject to the provisions of Section 10.04, as of any
particular time, all Junior Subordinated Debentures theretofore authenticated
and delivered by the Trustee under this Indenture, except (a) Junior
Subordinated Debentures theretofore canceled by the Trustee or any paying agent,
or delivered to the Trustee or any paying agent for cancellation or that have
previously been canceled; (b) Junior Subordinated Debentures or portions thereof
for the payment or redemption of which moneys or Governmental Obligations in the
necessary amount shall have been deposited in trust with the Trustee or with any
paying agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own paying
agent); provided, however, that if such Junior Subordinated Debentures or
portions of such Junior Subordinated Debentures are to be redeemed prior to the
maturity thereof, notice of
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such redemption shall have been given as provided in Article III, or provision
satisfactory to the Trustee shall have been made for giving such notice; and (c)
Junior Subordinated Debentures in lieu of or in substitution for which other
Junior Subordinated Debentures shall have been authenticated and delivered
pursuant to the terms of Section 2.08.
"Person" means any individual, corporation, partnership, joint venture,
joint-stock company, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Junior Subordinated Debenture" means every previous Junior
Subordinated Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Junior Subordinated Debenture; and, for the
purposes of this definition, any Junior Subordinated Debenture authenticated and
delivered under Section 2.08 in lieu of a lost, destroyed or stolen Junior
Subordinated Debenture shall be deemed to evidence the same debt as the lost,
destroyed or stolen Junior Subordinated Debenture.
"Preferred Securities" means undivided beneficial interests in the
assets of the Trust which rank pari passu with Common Securities issued by the
Trust; provided, however, that upon the occurrence of an Event of Default, the
rights of holders of Common Securities to payment in respect of Distributions
and payments upon liquidation, redemption and otherwise are subordinated to the
rights of holders of Preferred Securities.
"Preferred Securities Certificate" has the meaning set forth in the
Trust Agreement.
"Preferred Securities Guarantee" means any guarantee that the Company
may enter into with the Property Trustee or other Persons that operates directly
or indirectly for the benefit of holders of Preferred Securities of the Trust.
"Property Trustee" has the meaning set forth in the Trust Agreement.
"Redemption Price" means the amount equal to 100% of the principal
amount of Junior Subordinated Debentures to be redeemed plus any accrued and
unpaid interest thereon to the date of the redemption of such Junior
Subordinated Debentures.
"Responsible Officer" when used with respect to the Trustee means the
Chairman of the Board of Directors, the President, any Vice President, the
Secretary, the Treasurer, any trust officer, any corporate trust officer or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Scheduled Maturity Date" means ________________, 2028.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 2.07.
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"Securityholder," "Holder," "Registered Holder," or other similar term,
means the Person or Persons in whose name or names particular Junior
Subordinated Debentures shall be registered in the Securities Register.
"Senior and Subordinated Debt" means the principal of (and premium, if
any) and interest, if any (including interest accruing on or after the filing of
any petition in bankruptcy or for reorganization relating to the Company whether
or not such claim for post-petition interest is allowed in such proceeding), on
Debt of the Company, whether incurred on or prior to the date of this Indenture
or thereafter incurred, unless, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided that such
obligations are not superior in right of payment to the Junior Subordinated
Debentures or to other Debt which is pari passu with, or subordinated to, the
Junior Subordinated Debentures; provided, however, that Senior and Subordinated
Debt shall not be deemed to include (a) any Debt of the Company which when
incurred and without respect to any election under section 1111(b) of the United
States Bankruptcy Code of 1978, as amended, was without recourse to the Company,
(b) any Debt of the Company to any of its Subsidiaries, (c) any Debt to any
employee of the Company, (d) any Debt which by its terms is subordinated to any
trade accounts payable or accrued liabilities arising in the ordinary course of
business to the extent that payments made to the holders of such Debt by the
Holders of the Junior Subordinated Debentures as a result of the subordination
provisions of this Indenture would be greater than they otherwise would have
been as a result of any obligation of such holders to pay amounts over to the
obligees on such trade accounts payable or accrued liabilities arising in the
ordinary course of business as a result of subordination provisions to which
such Debt is subject, (e) the Preferred Securities Guarantee, and (f) any other
debt securities issued pursuant to this Indenture.
"Special Event" means a Tax Event, an Investment Company Event or a
Capital Treatment Event.
"Subsidiary" means, with respect to any Person, (a) any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person, or by one or more of its Subsidiaries,
or by such Person and one or more of its Subsidiaries, (b) any general
partnership, joint venture or similar entity, at least a majority of whose
outstanding partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person and one or more
of its Subsidiaries, and (c) any limited partnership of which such Person or any
of its Subsidiaries is a general partner.
"Tax Event" means the receipt by the Company and the Trust of an
Opinion of Counsel 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 administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of issuance of
the Junior Subordinated Debentures there is more than an insubstantial risk that
(a) interest payable by the Company on the Junior Subordinated Debentures is
not, or within 90 days after the date of such Opinion of Counsel will not be,
deductible by the Company, in whole or in part, for United States federal income
tax purposes, (b) the Trust is, or will be within 90 days after the date of such
Opinion of Counsel, subject to
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United States federal income tax with respect to income received or accrued on
the Junior Subordinated Debentures, or (c) the Trust is, or will be within 90
days after the date of such Opinion of Counsel, subject to more than a de
minimis amount of other taxes, duties, assessments or other governmental
charges.
"Trust" means Union Bankshares Capital Trust I, a Delaware statutory
business trust created for the purpose of issuing Trust Securities in connection
with the issuance of Junior Subordinated Debentures under this Indenture.
"Trust Agreement" means the Amended and Restated Trust Agreement, dated
as of ________________, 1998, of the Trust.
"Trustee" means American Securities Transfer & Trust, Inc. and, subject
to the provisions of Article IX, shall also include its successors and assigns,
and, if at any time there is more than one Person acting in such capacity
hereunder, "Trustee" shall mean each such Person.
"Trust Indenture Act," means the Trust Indenture Act of 1939 as in
force at the date of execution of this Indenture; provided, however, that in the
event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Securities" means Common Securities and Preferred Securities of
the Trust.
"Voting Stock," as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than shares,
interests, participations or other equivalents having such power only by reason
of the occurrence of a contingency.
ARTICLE II
DESCRIPTION, TERMS, CONDITIONS, REGISTRATION
AND EXCHANGE OF THE JUNIOR SUBORDINATED DEBENTURES
SECTION 2.01. DESIGNATION AND PRINCIPAL AMOUNT. There is hereby
authorized a series of Securities designated the "____% Junior Subordinated
Debentures due 2028," limited in aggregate principal amount to $_______, which
amount shall be as set forth in any written order of the Company for the
authentication and delivery of Junior Subordinated Debentures pursuant to
Section 8.02 of this Indenture.
SECTION 2.02. MATURITY.
(a) The Maturity Date will be either:
(i) the Scheduled Maturity Date; or
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(ii) if the Company elects to accelerate the
Maturity Date to be a date prior to the Scheduled Maturity Date in
accordance with Section 2.02(b), the Accelerated Maturity Date.
(b) The Company may, at any time before the day which is 90
days before the Scheduled Maturity Date, elect to shorten the Maturity
Date only once to the Accelerated Maturity Date, provided that the
Company has received the prior approval of the Federal Reserve if then
required under applicable capital guidelines or policies of the Federal
Reserve, but in no case shall such Accelerated Maturity Date be a date
before ______, 2003.
(c) If the Company elects to accelerate the Maturity Date in
accordance with Section 2.02(b), the Company shall give notice to the
Registered Holders of the Junior Subordinated Debentures, the Property
Trustee and the Trustee of the acceleration of the Maturity Date and
the Accelerated Maturity Date at least 90 days before the Accelerated
Maturity Date.
SECTION 2.03. FORM AND PAYMENT. Except as provided in Section 2.04,
the Junior Subordinated Debentures shall be issued in fully registered
certificated form without interest coupons. Principal and interest on the Junior
Subordinated Debentures issued in certificated form will be payable, the
transfer of such Junior Subordinated Debentures will be registrable and such
Junior Subordinated Debentures will be exchangeable for Junior Subordinated
Debentures bearing identical terms and provisions at the office or agency of the
Trustee; provided, however, that payment of interest may be made at the option
of the Company by check mailed to the Holder at such address as shall appear in
the Securities Register. Notwithstanding the foregoing, so long as the Holder of
any Junior Subordinated Debentures is the Property Trustee, the payment of the
principal of and interest (including Compounded Interest and Additional Sums, if
any) on such Junior Subordinated Debentures held by the Property Trustee will be
made at such place and to such account as may be designated by the Property
Trustee.
SECTION 2.04. GLOBAL SUBORDINATED DEBENTURE.
(a) In connection with a Dissolution Event:
(i) the Junior Subordinated Debentures in certificated
form may be presented to the Trustee by the Property Trustee in
exchange for a Global Subordinated Debenture in an aggregate
principal amount equal to the aggregate principal amount of all
outstanding Junior Subordinated Debentures (a "Global Subordinated
Debenture"), to be registered in the name of the Depositary, or
its nominee, and delivered by the Trustee to the Depositary for
crediting to the accounts of its participants pursuant to the
instructions of the Administrative Trustees. The Company upon any
such presentation shall execute a Global Subordinated Debenture in
such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance with this
Indenture. Payments on the Junior Subordinated Debentures issued
as a Global Subordinated Debenture will be made to the Depositary;
and
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(ii) if any Preferred Securities are held in non
book-entry certificated form, the Junior Subordinated Debentures
in certificated form may be presented to the Trustee by the
Property Trustee and any Preferred Securities Certificate which
represents Preferred Securities other than Preferred Securities
held by the Depositary or its nominee ("Non Book-Entry Preferred
Securities") will be deemed to represent beneficial interests in
Junior Subordinated Debentures presented to the Trustee by the
Property Trustee having an aggregate principal amount equal to the
aggregate Liquidation Amount of the Non Book-Entry Preferred
Securities until such Preferred Securities Certificates are
presented to the Securities Registrar for transfer or reissuance
at which time such Preferred Securities Certificates will be
canceled and a Junior Subordinated Debenture, registered in the
name of the holder of the Preferred Securities Certificate or the
transferee of the holder of such Preferred Securities Certificate,
as the case may be, with an aggregate principal amount equal to
the aggregate Liquidation Amount of the Preferred Securities
Certificate canceled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in
accordance with this Indenture. On issue of such Junior
Subordinated Debentures, Junior Subordinated Debentures with an
equivalent aggregate principal amount that were presented by the
Property Trustee to the Trustee will be deemed to have been
canceled.
(b) A Global Subordinated Debenture may be transferred, in
whole but not in part, only to another nominee of the Depositary, or to
a successor Depositary selected or approved by the Company or to a
nominee of such successor Depositary.
(c) If at any time the Depositary notifies the Company that
it is unwilling or unable to continue as Depositary or if at any time
the Depositary for such series shall no longer be registered or in good
standing under the Exchange Act or other applicable statute or
regulation, and a successor Depositary for such series is not appointed
by the Company within 90 days after the Company receives such notice or
becomes aware of such condition, as the case may be, the Company will
execute, and the Trustee, upon written notice from the Company, will
authenticate and deliver the Junior Subordinated Debentures in
definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Subordinated Debenture in exchange for
such Global Subordinated Debenture. In addition, the Company may at any
time determine that the Junior Subordinated Debentures shall no longer
be represented by a Global Subordinated Debenture. In such event the
Company will execute, and the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will
authenticate and deliver the Junior Subordinated Debentures in
definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Subordinated Debenture in exchange for
such Global Subordinated Debenture. Upon the exchange of the Global
Subordinated Debenture for such Junior Subordinated Debentures in
definitive registered form without coupons, in authorized
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denominations, the Global Subordinated Debenture shall be canceled by
the Trustee. Such Junior Subordinated Debentures in definitive
registered form issued in exchange for the Global Subordinated
Debenture shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Junior Subordinated Debentures
to the Depositary for delivery to the Persons in whose names such
Junior Subordinated Debentures are so registered.
SECTION 2.05. INTEREST.
(a) Each Junior Subordinated Debenture will bear interest at
the rate of ____% per annum (the "Coupon Rate") from the original date
of issuance until the principal thereof becomes due and payable, and on
any overdue principal and (to the extent that payment of such interest
is enforceable under applicable law) on any overdue installment of
interest at the Coupon Rate, compounded quarterly, payable (subject to
the provisions of Article IV) quarterly in arrears on the fifteenth day
of January, April, July and October in each year (each, an "Interest
Payment Date"), commencing on April 15, 1999, to the Person in whose
name such Junior Subordinated Debenture or any Predecessor Junior
Subordinated Debenture is registered at the close of business on the
regular record date for such interest installment, which, in respect of
(i) Junior Subordinated Debentures of which the Property Trustee is the
Holder and the Preferred Securities are in book-entry-only form or (ii)
a Global Subordinated Debenture, shall be the close of business on the
Business Day next preceding that Interest Payment Date. Notwithstanding
the foregoing sentence, if (A) the Junior Subordinated Debentures are
held by the Property Trustee and the Preferred Securities are no longer
in book-entry only form or (B) the Junior Subordinated Debentures are
not represented by a Global Subordinated Debenture, the record date for
such interest installment shall be the first day of the month in which
such payment is to be made. The amount of each interest payment due
with respect to the Junior Subordinated Debentures will include amounts
accrued through the date the interest payment is due.
(b) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months. Except
as provided in the following sentence, the amount of interest payable
for any period shorter than a full quarterly period for which interest
is computed will be computed on the basis of the actual number of days
elapsed in such a quarterly period. In the event that any date on which
interest is payable on the Junior Subordinated Debentures is not a
Business Day, then payment of interest payable on such date will be
made on the next succeeding day which is a Business Day (and without
any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on such date.
(c) If, at any time while the Property Trustee is the Holder
of any Junior Subordinated Debentures, the Trust or the Property
Trustee is required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes)
imposed by the United States, or any other taxing authority, then, in
any case, the Company will pay as additional interest ("Additional
Sums") on the Junior Subordinated Debentures held by the Property
Trustee such additional amounts as shall be required so that the net
amounts received and retained by the Trust and the Property Trustee
after
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paying such taxes, duties, assessments or other governmental charges
will be equal to the amounts the Trust and the Property Trustee would
have received had no such taxes, duties, assessments or other
government charges been imposed.
SECTION 2.06. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The
Junior Subordinated Debentures shall be executed on behalf of the Company by its
Chief Executive Officer, its President or any Vice President and attested by its
Secretary or Assistant Secretary. The signature of any of these officers on the
Junior Subordinated Debentures may be manual or facsimile.
Junior Subordinated Debentures 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 Junior Subordinated Debentures or did not hold such offices at the date
of such Junior Subordinated Debentures.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Junior Subordinated Debentures executed
by the Company to the Trustee for authentication, together with a Company order
for the authentication and delivery of such Junior Subordinated Debentures. The
Trustee in accordance with such Company order shall authenticate and deliver
such Junior Subordinated Debentures as provided in this Indenture and not
otherwise.
Upon the initial issuance, each Junior Subordinated Debenture shall be
dated ________________, 1998, and thereafter Junior Subordinated Debentures
issued hereunder shall be dated the date of their authentication.
No Junior Subordinated Debenture shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Junior Subordinated Debenture a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual signature, and
such certificate upon any Junior Subordinated Debenture shall be conclusive
evidence, and the only evidence, that such Junior Subordinated Debenture has
been duly authenticated and delivered hereunder and is entitled to the benefits
of this Indenture.
SECTION 2.07. REGISTRATION AND TRANSFER. The Company shall cause to be
kept at the Corporate Trust Office of the Trustee a register (the register
maintained in such office or any other office or agency pursuant to Section 5.02
being herein sometimes referred to as the "Securities Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of the Junior Subordinated Debentures and transfers
of the Junior Subordinated Debentures. The Trustee is hereby appointed
"Securities Registrar" for the purpose of registering the Junior Subordinated
Debentures and transfers of the Junior Subordinated Debentures as herein
provided.
Upon surrender for registration of transfer of any Junior Subordinated
Debenture at an office or agency of the Company designated pursuant to Section
5.02 for such purpose, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the
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designated transferee or transferees, a new Junior Subordinated Debenture of the
authorized denomination.
All Junior Subordinated Debentures issued upon any registration of
transfer of Junior Subordinated Debentures shall be valid obligations of the
Company, evidencing the same debt and entitled to the same benefits under this
Indenture as the Junior Subordinated Debentures surrendered upon such
registration of transfer.
Every Junior Subordinated Debenture presented or surrendered for
registration of transfer shall be duly endorsed for transfer (if so required by
the Company or the Trustee), or shall 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 for any registration of transfer of
Junior Subordinated Debentures, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer of Junior Subordinated Debentures.
The Company shall not be required to issue or register the transfer of
any Junior Subordinated Debenture during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Junior Subordinated Debentures selected for redemption pursuant to Article III
and ending at the close of business on the day of such mailing.
SECTION 2.08. MUTILATED, DESTROYED, LOST AND STOLEN JUNIOR
SUBORDINATED DEBENTURES. If any mutilated Junior Subordinated Debenture is
surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Junior Subordinated
Debenture of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence
to their satisfaction of the destruction, loss or theft of any Junior
Subordinated Debenture and (b) 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 Junior Subordinated Debenture has been acquired
by a bona fide purchaser, the Company shall execute and upon its request the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Junior Subordinated Debenture, a new Junior Subordinated Debenture of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Junior
Subordinated Debenture has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Junior Subordinated
Debenture, pay such Junior Subordinated Debenture.
Upon the issuance of any new Junior Subordinated Debenture under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
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Every new Junior Subordinated Debenture issued pursuant to this Section
in lieu of any destroyed, lost or stolen Junior Subordinated Debenture shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Junior Subordinated Debenture shall be at
any time enforceable by anyone, and shall be entitled to all of the benefits of
this Indenture.
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 Junior Subordinated Debentures.
ARTICLE III
REDEMPTION OF JUNIOR SUBORDINATED DEBENTURES
SECTION 3.01. REDEMPTION. Subject to the Company having received prior
approval of the Federal Reserve, if then required under the applicable capital
guidelines or policies of the Federal Reserve, the Company may redeem the Junior
Subordinated Debentures in accordance with this Article III.
SECTION 3.02. SPECIAL EVENT REDEMPTION. Subject to the Company having
received the prior approval of the Federal Reserve, if then required under the
applicable capital guidelines or policies of the Federal Reserve, if a Special
Event has occurred and is continuing, then, notwithstanding Section 3.03, the
Company shall have the right upon not less than 30 days' nor more than 60 days'
notice to the Holders of the Junior Subordinated Debentures to redeem the Junior
Subordinated Debentures, in whole but not in part, for cash within 90 days
following the occurrence of such Special Event (the "90-Day Period") at the
Redemption Price, provided that if at the time there is available to the Company
the opportunity to eliminate, within the 90-Day Period, the Tax Event by taking
some ministerial action ("Ministerial Action"), such as filing a form or making
an election, or pursuing some other similar reasonable measure which has no
adverse effect on the Company, the Trust or the Holders of the Trust Securities
issued by the Trust, the Company shall pursue such Ministerial Action in lieu of
redemption, and, provided, further, that the Company shall have no right to
redeem the Junior Subordinated Debentures while the Trust is pursuing any
Ministerial Action to eliminate the Tax Event. The Redemption Price shall be
paid prior to 2:00 p.m., Denver, Colorado time, on the date of such redemption
or such earlier time as the Company determines, provided that the Company shall
deposit with the Trustee an amount sufficient to pay the Redemption Price by
12:00 noon, Denver, Colorado time, on the date such Redemption Price is to be
paid.
SECTION 3.03. OPTIONAL REDEMPTION BY COMPANY.
(a) Except as otherwise may be specified in this Indenture,
the Company shall have the right to redeem the Junior Subordinated
Debentures, in whole or in part, from time to time, on or after
________________, 2003, at the Redemption Price. Any redemption
pursuant to this Section 3.03 will be made upon not less than 30 days'
nor more than 60 days' notice to the Holders of the Junior Subordinated
Debentures, at the Redemption Price. If the Junior Subordinated
Debentures are only partially redeemed pursuant to this Section 3.03,
the Junior Subordinated Debentures will be redeemed pro
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rata or by lot or by any other method utilized by the Trustee;
provided, that if at the time of redemption the Junior Subordinated
Debentures are registered as a Global Subordinated Debenture, the
Depositary shall determine, in accordance with its procedures, the
principal amount of such Junior Subordinated Debentures held by each
Holder of Junior Subordinated Debentures to be redeemed. The Redemption
Price shall be paid prior to 2:00 p.m., Denver, Colorado time, on the
date of such redemption or at such earlier time as the Company
determines provided that the Company shall deposit with the Trustee an
amount sufficient to pay the Redemption Price by 12:00 noon, Denver,
Colorado time, on the date such Redemption Price is to be paid.
(b) If a partial redemption of the Junior Subordinated
Debentures would result in the delisting of the Preferred Securities
issued by the Trust from the NASDAQ National Market or any national
securities exchange or other organization on which the Preferred
Securities may then be listed, if any, the Company shall not be
permitted to effect such partial redemption and may only redeem the
Junior Subordinated Debentures in whole or in part to such extent as
would not cause such delisting.
SECTION 3.04. NOTICE OF REDEMPTION.
(a) In case the Company shall desire to exercise such right
to redeem all or, as the case may be, a portion of the Junior
Subordinated Debentures in accordance with the right reserved so to do,
the Company shall, or shall cause the Trustee to, give notice of such
redemption to Holders of the Junior Subordinated Debentures to be
redeemed by mailing, first class postage prepaid, a notice of such
redemption not less than 30 days and not more than 60 days before the
date fixed for redemption to such Holders at their last addresses as
they shall appear upon the Securities Register. Any notice that is
mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the Registered Holder receives the
notice. In any case, failure duly to give such notice to the Holder of
any Junior Subordinated Debenture designated for redemption in whole or
in part, or any defect in the notice, shall not affect the validity of
the proceedings for the redemption of any other Junior Subordinated
Debentures. In the case of any redemption of Junior Subordinated
Debentures prior to the expiration of any restriction on such
redemption provided elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing compliance
with any such restriction.
Each such notice of redemption shall specify the date fixed for
redemption and the Redemption Price, and shall state that payment of
the Redemption Price of such Junior Subordinated Debentures to be
redeemed will be made at the office or agency of the Company in Denver,
Colorado, upon presentation and surrender of such Junior Subordinated
Debentures, that interest accrued to the date fixed for redemption will
be paid as specified in said notice, that from and after said date
interest will cease to accrue. If less than all the Junior Subordinated
Debentures are to be redeemed, the notice to the Holders of Junior
Subordinated Debentures to be redeemed in whole or in part shall
specify the particular Junior Subordinated Debentures to be so
redeemed. In case any Junior Subordinated Debenture is to be redeemed
in part only, the notice that relates to such Junior Subordinated
Debenture shall state the portion of the principal amount
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thereof to be redeemed, and shall state that on and after the
redemption date, upon surrender of such Junior Subordinated Debenture,
a new Junior Subordinated Debenture or Junior Subordinated Debentures
in principal amount equal to the unredeemed portion thereof shall be
issued to the Holder.
(b) If less than all the Junior Subordinated Debentures are
to be redeemed, the Company shall give the Trustee at least 45 days'
notice in advance of the date fixed for redemption as to the aggregate
principal amount of Junior Subordinated Debentures to be redeemed, and
thereupon the Trustee shall select, by lot or in such other manner as
it shall deem appropriate and fair in its discretion and that may
provide for the selection of a portion or portions (equal to ten U.S.
dollars ($10) or any integral multiple thereof), the Junior
Subordinated Debentures to be redeemed and shall thereafter promptly
notify the Company in writing of the numbers of the Junior Subordinated
Debentures to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its Chief Executive Officer, its President
or any Vice President, instruct the Trustee or any paying agent to call all or
any part of the Junior Subordinated Debentures for redemption and to give notice
of redemption in the manner set forth in this Section, such notice to be in the
name of the Company or in the name of the Trustee or the paying agent, as the
Trustee or such paying agent may deem advisable. In any case in which notice of
redemption is to be given by the Trustee or any such paying agent, the Company
shall deliver or cause to be delivered to, or permit to remain with, the Trustee
or such paying agent, as the case may be, such Securities Register, transfer
books or other records, or suitable copies or extracts therefrom, sufficient to
enable the Trustee or such paying agent to give any notice by mail that may be
required under the provisions of this Section.
SECTION 3.05. PAYMENT UPON REDEMPTION.
(a) If the giving of notice of redemption shall have been
completed as above provided, the Junior Subordinated Debentures or
portions of Junior Subordinated Debentures to be redeemed specified in
such notice shall become due and payable on the date and at the place
stated in such notice at the Redemption Price (which includes interest
accrued to the date fixed for redemption) and interest on such Junior
Subordinated Debentures or portions of Junior Subordinated Debentures
shall cease to accrue on and after the date fixed for redemption,
unless the Company shall default in the payment of such Redemption
Price with respect to any such Junior Subordinated Debentures or
portions thereof. On presentation and surrender of such Junior
Subordinated Debentures on or after the date fixed for redemption at
the place of payment specified in the notice, such Junior Subordinated
Debentures shall be paid and redeemed at the Redemption Price (which
includes the interest accrued thereon to the date fixed for redemption)
(but if the date fixed for redemption is an Interest Payment Date, the
interest installment payable on such date shall be payable to the
Registered Holder at the close of business on the applicable record
date pursuant to Section 2.05(a)).
(b) Upon presentation of any Junior Subordinated Debenture
that is to be redeemed in part only, the Company shall execute and the
Trustee shall authenticate and
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the office or agency where the Junior Subordinated Debenture is
presented shall deliver to the Holder thereof, at the expense of the
Company, a new Junior Subordinated Debenture or Junior Subordinated
Debentures of authorized denominations in principal amount equal to the
unredeemed portion of the Junior Subordinated Debenture so presented.
SECTION 3.06. NO SINKING FUND. The Junior Subordinated Debentures are
not entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.01. EXTENSION OF INTEREST PAYMENT PERIOD. So long as no
Event of Default has occurred and is continuing, the Company shall have the
right, at any time and from time to time during the term of the Junior
Subordinated Debentures, to defer payments of interest by extending the interest
payment period of such Junior Subordinated Debentures for a period not exceeding
20 consecutive quarters (the "Extended Interest Payment Period"), during which
Extended Interest Payment Period no interest shall be due and payable; provided
that no Extended Interest Payment Period may extend beyond the Maturity Date. To
the extent permitted by applicable law, interest, the payment of which has been
deferred because of the extension of the interest payment period pursuant to
this Section 4.01, will bear interest thereon at the Coupon Rate compounded
quarterly for each quarter of the Extended Interest Payment Period ("Compounded
Interest"). At the end of the Extended Interest Payment Period, the Company
shall pay all interest accrued and unpaid on the Junior Subordinated Debentures,
including any Additional Sums and Compounded Interest (together, "Deferred
Interest") that shall be payable to the Holders of the Junior Subordinated
Debentures in whose names the Junior Subordinated Debentures are registered in
the Securities Register on the record date for the Interest Payment Date
coinciding with the end of the Extended Interest Payment Period. Before the
termination of any Extended Interest Payment Period, the Company may further
extend such period, provided that such period together with all such further
extensions thereof shall not exceed 20 consecutive quarters, or extend beyond
the Maturity Date. Upon the termination of any Extended Interest Payment Period
and upon the payment of all Deferred Interest then due, the Company may commence
a new Extended Interest Payment Period, subject to the foregoing requirements.
No interest shall be due and payable during an Extended Interest Payment Period,
except at the end thereof, but the Company may prepay at any time all or any
portion of the interest accrued during an Extended Interest Payment Period.
SECTION 4.02. NOTICE OF EXTENSION.
(a) If the Property Trustee is the only Registered Holder of
the Junior Subordinated Debentures at the time the Company selects an
Extended Interest Payment Period, the Company shall give written notice
to the Administrative Trustees, the Property Trustee and the Trustee of
its selection of such Extended Interest Payment Period one Business Day
before the earlier of (i) the next succeeding date on which
Distributions are payable, or (ii) the date the Trust is required to
give notice of the record date, or the date such Distributions are
payable, to the Preferred Securities holders or to
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the NASDAQ National Market or other applicable self-regulatory
organization, if any, but in any event at least one Business Day before
such record date.
(b) If the Property Trustee is not the only Holder of the
Junior Subordinated Debentures at the time the Company selects an
Extended Interest Payment Period, the Company shall give the Holders of
the Junior Subordinated Debentures and the Trustee written notice of
its selection of such Extended Interest Payment Period at least one
Business Day before the earlier of (i) the next succeeding Interest
Payment Date, or (ii) the date the Company is required to give notice
of the record or payment date of such interest payment to the Holders
of the Junior Subordinated Debentures or to the NASDAQ National Market
or other applicable self-regulatory organization, if any.
(c) The quarter in which any notice is given pursuant to
paragraph (a) or paragraph (b) of this Section 4.02 shall be counted as
one of the 20 quarters permitted in the maximum Extended Interest
Payment Period permitted under Section 4.01.
SECTION 4.03. LIMITATION OF TRANSACTIONS DURING EXTENSION. If (a) the
Company shall exercise its right to defer payment of interest as provided in
Section 4.01; or (b) there shall have occurred any Event of Default, then the
Company shall be subject to the restrictions on payments set forth under Section
5.06.
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.01. PAYMENT OF PRINCIPAL AND INTEREST. The Company will duly
and punctually pay or cause to be paid the principal of and interest on the
Junior Subordinated Debentures at the time and place and in the manner provided
herein and established with respect to such Junior Subordinated Debentures.
SECTION 5.02. MAINTENANCE OF AGENCY. So long as any Junior
Subordinated Debentures remain Outstanding, the Company agrees to maintain an
office or agency in Denver, Colorado, or at such other location or locations as
may be designated as provided in this Section 5.02, where (a) Junior
Subordinated Debentures may be presented for payment, (b) Junior Subordinated
Debentures may be presented as hereinabove authorized for registration of
transfer and exchange, and (c) notices and demands to or upon the Company in
respect of the Junior Subordinated Debentures and this Indenture may be given or
served, such designation to continue with respect to such office or agency until
the Company shall, by written notice signed by its Chief Executive Officer, its
President or a Vice President and delivered to the Trustee, designate some other
office or agency for such purposes or any of them. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, notices and demands.
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SECTION 5.03. PAYING AGENTS.
(a) If the Company shall appoint one or more paying agents
for the Junior Subordinated Debentures, other than the Trustee, the
Company will cause each such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section:
(i) that it will hold all sums held by it as such
agent for the payment of the principal of or interest on the
Junior Subordinated Debentures (whether such sums have been paid
to it by the Company or by any other obligor) in trust for the
benefit of the Persons entitled thereto;
(ii) that it will give the Trustee notice of any
failure by the Company (or by any other obligor) to make any
payment of the principal of or interest on the Junior Subordinated
Debentures when the same shall be due and payable;
(iii) that it will, at any time during the continuance
of any failure referred to in the preceding paragraph (a)(ii)
above, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such paying agent;
and
(iv) that it will perform all other duties of paying
agent as set forth in this Indenture.
(b) If the Company shall act as its own paying agent with
respect to the Junior Subordinated Debentures, it will on or before
each due date of the principal of or interest on Junior Subordinated
Debentures, set aside, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay such principal or
interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify
the Trustee of such action, or any failure (by it or any other obligor)
to take such action. Whenever the Company shall have one or more paying
agents for the Junior Subordinated Debentures, it will, prior to each
due date of the principal of or interest on the Junior Subordinated
Debentures, deposit with the paying agent a sum sufficient to pay the
principal or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal or interest, and
(unless such paying agent is the Trustee) the Company will promptly
notify the Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section to the
contrary, (i) the agreement to hold sums in trust as provided in this
Section is subject to the provisions of Section 13.05, and (ii) 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
direct any paying agent to pay, to the Trustee all sums held in trust
by the Company or such paying agent, such sums to be held by the
Trustee upon the same terms and conditions as those upon which such
sums were held by the Company or such paying agent; and, upon such
payment by any paying agent to the Trustee, such paying agent shall be
released from all further liability with respect to such money.
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SECTION 5.04. APPOINTMENT TO FILL VACANCY IN OFFICE OF TRUSTEE. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 9.10, a Trustee, so that there
shall at all times be a Trustee hereunder.
SECTION 5.05. COMPLIANCE WITH CONSOLIDATION PROVISIONS. The Company
will not, while any of the Junior Subordinated Debentures remain Outstanding,
consolidate with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other company unless the provisions of
Article XII hereof are complied with.
SECTION 5.06. RESTRICTIONS ON CERTAIN PAYMENTS. If at any time (a)
there shall have occurred any event of which the Company has actual knowledge
that (i) with the giving of notice or the lapse of time, or both, would
constitute an Event of Default and (ii) in respect to which the Company shall
not have taken reasonable steps to cure, or (b) the Company shall have given
notice of its election of an Extended Interest Payment Period as provided herein
with respect to the Junior Subordinated Debentures and shall not have rescinded
such notice, or such Extended Interest Payment Period, or any extension thereof,
shall be continuing; or (c) while the Junior Subordinated Debentures are held by
the Trust, the Company shall be in default with respect to its payment of any
obligation under the Preferred Securities Guarantee, then the Company will 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, interest or premium, if
any, on or repay, repurchase or redeem any debt securities of the Company
(including the Junior Subordinated Debentures) that rank pari passu with or
junior in interest to the Junior Subordinated Debentures or make any guarantee
payments with respect to any guarantee by the Company of the debt securities of
any Subsidiary of the Company if such guarantee ranks pari passu or junior in
interest to the Junior Subordinated Debentures (other than (A) dividends or
distributions in common stock, (B) any declaration of a dividend in connection
with the implementation of a shareholders' rights plan, or the issuance of stock
under any such plan in the future or the redemption or repurchase of any such
rights pursuant thereto, (C) payments under the Preferred Securities Guarantee
and (D) purchases of common stock related to the issuance of common stock or
rights under any of the Company's benefit plans for its directors, officers or
employees).
SECTION 5.07. COVENANTS AS TO THE TRUST. For so long as the Trust
Securities of the Trust remain outstanding, the Company will (a) maintain 100%
direct or indirect ownership of the Common Securities of the Trust; provided,
however, that any permitted successor of the Company under this Indenture may
succeed to the Company's ownership of the Common Securities, (b) use its
reasonable efforts to cause the Trust (i) to remain a business trust, except in
connection with a distribution of Junior Subordinated Debentures, the redemption
of all of the Trust Securities of the Trust or certain mergers, consolidations
or amalgamations, each as permitted by the Trust Agreement, and (ii) to
otherwise continue not to be treated as an association taxable as a corporation
or partnership for United States federal income tax purposes and (c) to use its
reasonable efforts to cause each Holder of Trust Securities to be treated as
owning an individual beneficial interest in the Junior Subordinated Debentures.
If the Junior Subordinated Debentures are to be issued as a Global
Subordinated Debenture in connection with the distribution of the Junior
Subordinated Debentures to the holders of the Preferred Securities issued by the
Trust upon a Dissolution Event, the Company
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will use its best efforts to list such Junior Subordinated Debentures on the
NASDAQ National Market or on such other exchange as the Preferred Securities may
then be listed.
ARTICLE VI
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 6.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
SECURITYHOLDERS. The Company will furnish or cause to be furnished to the
Trustee (a) on each regular record date (as defined in Section 2.05(a)) a list,
in such form as the Trustee may reasonably require, of the names and addresses
of the Holders as of such regular record date, provided that the Company shall
not be obligated to furnish or cause to furnish such list at any time that the
list shall not differ in any respect from the most recent list furnished to the
Trustee by the Company and (b) at such other times as the Trustee may request in
writing within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to the
time such list is furnished; provided, however, that, in either case, no such
list need be furnished if the Trustee shall be the Securities Registrar.
SECTION 6.02. PRESERVATION OF INFORMATION; COMMUNICATIONS WITH
SECURITYHOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses
of the Holders contained in the most recent list furnished to it as
provided in Section 6.01 and as to the names and addresses of Holders
received by the Trustee in its capacity as Securities Registrar (if
acting in such capacity).
(b) The Trustee may destroy any list furnished to it as
provided in Section 6.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section
312(b) of the Trust Indenture Act with other Securityholders with
respect to their rights under this Indenture or under the Junior
Subordinated Debentures.
SECTION 6.03. REPORTS BY THE COMPANY.
(a) The Company covenants and agrees to file with the
Trustee, within 15 days after the Company is required to file the same
with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules
and regulations prescribe) that the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file information,
documents or reports pursuant to either of such sections, then to file
with the Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports that may
be required pursuant to any applicable rules and regulations of the
Commission.
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(b) The Company covenants and agrees to file with the
Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such
rules and regulations.
(c) The Company covenants and agrees to transmit by mail,
first class postage prepaid, or reputable overnight delivery service
that provides for evidence of receipt, to the Securityholders, as their
names and addresses appear upon the Securities Register, within 30 days
after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section as may be required
by rules and regulations prescribed from time to time by the
Commission.
SECTION 6.04. REPORTS BY THE TRUSTEE.
(a) Beginning January 31, 1999, on or before January 31 in
each year in which any of the Junior Subordinated Debentures are
Outstanding, the Trustee shall transmit by mail, first class postage
prepaid, to the Securityholders, as their names and addresses appear
upon the Securities Register, a brief report dated as of the preceding
December 31, if and to the extent required under Section 313(a) of the
Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c)
of the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with the
Company, and also with the Commission.
ARTICLE VII
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 7.01. EVENTS OF DEFAULT.
(a) Whenever used herein, "Event of Default" means any one
or more of the following events that has occurred and is continuing:
(i) the Company defaults in the payment of any
installment of interest upon any of the Junior Subordinated
Debentures, as and when the same shall become due and payable,
and continuance of such default for a period of 30 days;
provided, however, that a valid extension of an interest payment
period by the Company in accordance with the terms of this
Indenture shall not constitute a default in the payment of
interest for this purpose;
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(ii) the Company defaults in the payment of the
principal of any of the Junior Subordinated Debentures as and
when the same shall become due and payable whether at maturity,
upon redemption, by declaration or otherwise;
(iii) the Company fails to observe or perform any other
of its covenants or agreements hereunder with respect to the
Junior Subordinated Debentures for a period of 90 days after the
date on which written notice of such failure, requiring the same
to be remedied and stating that such notice is a "Notice of
Default" hereunder, shall have been given to the Company by the
Trustee, by registered or certified mail, or to the Company and
the Trustee by the Holders of at least 25% in principal amount of
the Junior Subordinated Debentures at the time Outstanding;
(iv) the Company pursuant to or within the meaning of
any Bankruptcy Law (A) commences a voluntary case, (B) consents
to the entry of an order for relief against it in an involuntary
case, (C) consents to the appointment of a custodian of it or for
all or substantially all of its property or (D) makes a general
assignment for the benefit of its creditors;
(v) a court of competent jurisdiction enters an order
under any Bankruptcy Law that (A) is for relief against the
Company in an involuntary case, (B) appoints a custodian of the
Company for all or substantially all of its property, or (C)
orders the liquidation of the Company, and the order or decree
remains unstayed and in effect for 90 days; or
(vi) in the event Junior Subordinated Debentures are
issued to the Trust or a trustee of the Trust in connection with
the issuance of Trust Securities by the Trust, the Trust shall
have voluntarily or involuntarily dissolved, wound up its
business or otherwise terminated its existence, except in
connection with (A) the distribution of Junior Subordinated
Debentures to holders of Trust Securities in liquidation of their
interests in the Trust, (B) the redemption of all of the
outstanding Trust Securities of the Trust or (C) certain mergers,
consolidations or amalgamations, each as permitted by the Trust
Agreement.
(b) In each and every such case, unless the principal of all
the Junior Subordinated Debentures shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Junior Subordinated Debentures then
Outstanding hereunder, by notice in writing to the Company (and to the
Trustee if given by such Securityholders) may declare the principal of
all the Junior Subordinated Debentures to be due and payable
immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, notwithstanding anything
contained in this Indenture or in the Junior Subordinated Debentures to
the contrary.
(c) At any time after the principal of the Junior
Subordinated Debentures shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided,
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the Holders of a majority in aggregate principal amount of the Junior
Subordinated Debentures then Outstanding, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if: (i) the Company has paid or deposited with the Trustee
a sum sufficient to pay all matured installments of interest upon all
the Junior Subordinated Debentures and the principal of any and all
Junior Subordinated Debentures that shall have become due otherwise
than by acceleration (with interest upon such principal and, to the
extent that such payment is enforceable under applicable law, upon
overdue installments of interest, at the rate per annum expressed in
the Junior Subordinated Debentures to the date of such payment or
deposit) and the amount payable to the Trustee under Section 9.06, and
(ii) any and all Events of Default under this Indenture, other than the
nonpayment of principal on Junior Subordinated Debentures that shall
not have become due by their terms, shall have been remedied or waived
as provided in Section 7.06. Should the Holders fail to annul such
declaration and waive such default, then the holders of a majority in
aggregate Liquidation Amount of the Preferred Securities shall have
such right.
No such rescission and annulment shall extend to or shall affect
any subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any
right with respect to Junior Subordinated Debentures under this
Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other
reason or shall have been determined adversely to the Trustee, then and
in every such case the Company and the Trustee shall be restored
respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company and the Trustee shall
continue as though no such proceedings had been taken.
SECTION 7.02. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
(a) The Company covenants that (i) in case it shall default
in the payment of any installment of interest on any of the Junior
Subordinated Debentures as and when the same shall have become due and
payable, and such default shall have continued for a period of 90
Business Days, or (ii) in case it shall default in the payment of the
principal of any of the Junior Subordinated Debentures when the same
shall have become due and payable, whether upon maturity of the Junior
Subordinated Debentures or upon redemption or upon declaration or
otherwise, then, upon demand of the Trustee, the Company will pay to
the Trustee, for the benefit of the Holders of the Junior Subordinated
Debentures, the whole amount that then shall have become due and
payable on all such Junior Subordinated Debentures for principal or
interest, or both, as the case may be, with interest upon the overdue
principal and (to the extent that payment of such interest is
enforceable under applicable law and, if the Junior Subordinated
Debentures are held by the Trust or a trustee of the Trust, without
duplication of any other amounts paid by the Trust or trustee in
respect thereof) upon overdue installments of interest at the rate per
annum expressed in the Junior Subordinated Debentures; and, in addition
thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, and the amount payable to the Trustee under
Section 9.06.
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(b) If the Company shall fail to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action
or proceedings at law or in equity for the collection of the sums so
due and unpaid, and may prosecute any such action or proceeding to
judgment or final decree, and may enforce any such judgment or final
decree against the Company or other obligor upon the Junior
Subordinated Debentures and collect the moneys adjudged or decreed to
be payable in the manner provided by law out of the property of the
Company or other obligor upon the Junior Subordinated Debentures,
wherever situated.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition or
judicial proceedings affecting the Company or the creditors or property
of either, the Trustee shall have power to intervene in such
proceedings and take any action therein that may be permitted by the
court and shall (except as may be otherwise provided by law) be
entitled to file such proofs of claim and other papers and documents as
may be necessary or advisable in order to have the claims of the
Trustee and of the Holders of Junior Subordinated Debentures allowed
for the entire amount due and payable by the Company under this
Indenture at the date of institution of such proceedings and for any
additional amount that may become due and payable by the Company after
such date, and to collect and receive any moneys or other property
payable or deliverable on any such claim, and to distribute the same
after the deduction of the amount payable to the Trustee under Section
9.06; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the Holders to make such
payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to such
Securityholders, to pay to the Trustee any amount due it under Section
9.06.
(d) All rights of action and of asserting claims under this
Indenture may be enforced by the Trustee without the possession of any
of the Junior Subordinated Debentures, or the production thereof at any
trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall,
after provision for payment to the Trustee of any amounts due under
Section 9.06, be for the ratable benefit of the Holders of the Junior
Subordinated Debentures.
In case of an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Junior Subordinated Debentures or the rights of any
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Holder thereof or to authorize the Trustee to vote in respect of the claim of
any Securityholder in any such proceeding.
SECTION 7.03. APPLICATION OF MONEYS COLLECTED. Any moneys collected by
the Trustee pursuant to this Article with respect to the Junior Subordinated
Debentures shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such moneys on account of
principal or interest, upon presentation of the Junior Subordinated Debentures,
and notation thereon the payment, if only partially paid, and upon surrender
thereof if fully paid:
FIRST, to the payment of costs and expenses of collection and of
all amounts payable to the Trustee under Section 9.06;
SECOND, to the payment of all Senior and Subordinated Debt of the
Company if and to the extent required by Article XVI; and
THIRD, to the payment of the amounts then due and unpaid upon
Junior Subordinated Debentures for principal and interest, in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Junior Subordinated Debentures for
principal and interest, respectively.
SECTION 7.04. LIMITATION ON SUITS. No Holder shall have any right by
virtue of or by availing any provision of this Indenture to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (a) such Holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof;
(b) the Holders of not less than 25% in aggregate principal amount of the Junior
Subordinated Debentures then Outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
trustee hereunder; (c) such Holder or Holders shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby; and (d) the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action, suit or proceeding; and (e) during such
60-day period, the Holders of a majority in principal amount of the Junior
Subordinated Debentures do not give the Trustee a direction inconsistent with
the request.
Notwithstanding any other provisions of this Indenture to the contrary,
the right of any Holder to receive payment of the principal of and interest on
the Junior Subordinated Debentures on or after the respective due dates (or in
the case of redemption, on the redemption date), or to institute suit for the
enforcement of any such payment on or after such respective dates or redemption
date, shall not be impaired or affected without the consent of such Holder; and
by accepting a Junior Subordinated Debenture hereunder it is expressly
understood, intended and covenanted by the Holder thereof with every other such
Holder and the Trustee, that no one or more Holders shall have any right in any
manner whatsoever by virtue of or by availing any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holders, or to obtain or
seek to obtain priority over or preference to any such other Holders, or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal, ratable and
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common benefit of all Holders of Junior Subordinated Debentures. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
SECTION 7.05. RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER.
(a) Except as otherwise provided in Section 7.02, all powers
and remedies given by this Article to the Trustee or to the
Securityholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies
available to the Trustee or the Holders of the Junior Subordinated
Debentures, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in
this Indenture or otherwise established with respect to such Junior
Subordinated Debentures.
(b) No delay or omission of the Trustee or of any Holder of
any of the Junior Subordinated Debentures to exercise any right or
power accruing upon any Event of Default occurring and continuing as
aforesaid shall impair any such right or power, or shall be construed
to be a waiver of any such default or on acquiescence therein; and,
subject to the provisions of Section 7.04, every power and remedy
given by this Article or by law to the Trustee or the Securityholders
may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Securityholders.
SECTION 7.06. CONTROL BY SECURITYHOLDERS. The Holders of a majority in
aggregate principal amount of the Junior Subordinated Debentures at the time
Outstanding, determined in accordance with Section 10.04, shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee; provided, however, that such direction shall not be in conflict with
any rule of law or with this Indenture. Subject to the provisions of Section
9.01, the Trustee shall have the right to decline to follow any such direction
if the Trustee in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed would involve the Trustee in
personal liability. The Holders of a majority in aggregate principal amount of
the Junior Subordinated Debentures at the time Outstanding affected thereby,
determined in accordance with Section 10.04, may on behalf of the Holders of all
of the Junior Subordinated Debentures waive any past default in the performance
of any of the covenants contained herein and its consequences, except (a) a
default in the payment of the principal of or interest on any of the Junior
Subordinated Debentures as and when the same shall become due by its terms
otherwise than by acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal has been
deposited with the Trustee in accordance with Section 7.01(c)), (b) a default in
the covenants contained in Section 5.06 or (c) in respect of a covenant or
provision hereof which under Article XI cannot be modified or amended without
the consent of the Holder of each Outstanding Junior Subordinated Debenture
affected; provided, however, that if the Junior Subordinated Debentures are held
by the Trust or a Trustee of the Trust, such waiver or modification to such
waiver shall not be effective until the Holders of a majority in Liquidation
Amount of Trust Securities of the Trust shall have consented to such
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waiver or modification to such waiver; provided further, that if the consent of
the Holder of each Outstanding Junior Subordinated Debenture is required, such
waiver shall not be effective until each Holder of the Trust Securities of the
Trust shall have consented to such waiver. Upon any such waiver, the default
covered thereby shall be deemed to be cured for all purposes of this Indenture
and the Company, the Trustee and the Holders of the Junior Subordinated
Debentures shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
SECTION 7.07. UNDERTAKING TO PAY COSTS. All parties to this Indenture
agree, and each Holder of any Junior Subordinated Debentures by such Holder's
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as 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 Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the
Outstanding Junior Subordinated Debentures, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or
interest on the Junior Subordinated Debentures on or after the due dates
thereof.
ARTICLE VIII
FORM OF JUNIOR SUBORDINATED DEBENTURE AND ORIGINAL ISSUE
SECTION 8.01. FORM OF JUNIOR SUBORDINATED DEBENTURE. The Junior
Subordinated Debenture and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the forms contained as Exhibit A to
this Indenture, attached hereto and incorporated herein by reference.
SECTION 8.02. ORIGINAL ISSUE OF JUNIOR SUBORDINATED DEBENTURES. Junior
Subordinated Debentures in the aggregate principal amount of $________ may, upon
execution of this Indenture, be executed by the Company and delivered to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver the Junior Subordinated Debentures to or upon the written order of the
Company, signed by its Chairman, its Vice Chairman, its Chief Executive Officer,
its President or any Vice President, without any further action by the Company.
ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.01. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform with respect to the Junior
Subordinated Debentures such duties and only such duties as are
specifically set forth in this
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Indenture, and no implied covenants shall be read into this Indenture
against the Trustee. In case an Event of Default has occurred (that has
not been cured or waived), the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own
affairs.
(b) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except
that:
(i) prior to the occurrence of an Event of Default
and after the curing or waiving of all such Events of Default
that may have occurred:
(A) the duties and obligations of the Trustee
shall be determined solely by the express provisions of
this Indenture, and the Trustee shall not be liable
except for the performance of such duties and
obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and
(B) in the absence of bad faith on the part
of the Trustee, the Trustee may conclusively rely, as
to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates
or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the
case of any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or
not they conform to the requirement of this
Indenture;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
majority in principal amount of the Junior Subordinated
Debentures at the time Outstanding 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; and
(iv) none of the provisions contained in this
Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if there is reasonable ground for believing that
the repayment of such funds or liability is not reasonably assured
to it under the terms of this Indenture or adequate indemnity
against such risk is not reasonably assured to it.
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SECTION 9.02. CERTAIN RIGHTS OF TRUSTEE. Except as otherwise provided
in Section 9.01:
(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, consent, order, approval,
bond, security or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board Resolution
or an instrument signed in the name of the Company by the Chief
Executive Officer, the President or any Vice President and by the
Secretary or an Assistant Secretary or the Chief Accounting Officer
thereof (unless other evidence in respect thereof is specifically
prescribed herein);
(c) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted hereunder in good faith and in reliance thereon;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders, pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that may be incurred therein or
thereby; nothing contained herein shall, however, relieve the Trustee
of the obligation, upon the occurrence of an Event of Default (that has
not been cured or waived) to exercise such of the rights and powers
vested in it by this Indenture, and to use the same degree of care and
skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;
(e) the Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(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, consent,
order, approval, bond, security or other papers or documents, unless
requested in writing so to do by the Holders of not less than a
majority in principal amount of the Outstanding Junior Subordinated
Debentures (determined as provided in Section 10.04); provided,
however, that if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Indenture, the Trustee may require reasonable indemnity
against such costs, expenses or liabilities as a condition to so
proceeding. The reasonable expense of every such examination shall be
paid by the Company or, if paid by the Trustee, shall be repaid by the
Company upon demand; and
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(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 9.03. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF THE
JUNIOR SUBORDINATED DEBENTURES.
(a) The recitals contained herein and in the Junior
Subordinated Debentures shall be taken as the statements of the Company
and the Trustee assumes no responsibility for the correctness of the
same.
(b) The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Junior Subordinated
Debentures.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Junior Subordinated Debentures
or of the proceeds of such Junior Subordinated Debentures, or for the
use or application of any moneys paid over by the Trustee in accordance
with any provision of this Indenture, or for the use or application of
any moneys received by any paying agent other than the Trustee.
SECTION 9.04. MAY HOLD JUNIOR SUBORDINATED DEBENTURES. The Trustee or
any paying agent or Securities Registrar, in its individual or any other
capacity, may become the owner or pledgee of Junior Subordinated Debentures with
the same rights it would have if it were not Trustee, paying agent or Securities
Registrar.
SECTION 9.05. MONEYS HELD IN TRUST. Subject to the provisions of
Section 13.05, all moneys received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
moneys received by it hereunder except such as it may agree with the Company to
pay thereon.
SECTION 9.06. COMPENSATION AND REIMBURSEMENT.
(a) The Company covenants and agrees to pay to the Trustee,
and the Trustee shall be entitled to, such reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), as the Company and the
Trustee may from time to time agree in writing, for all services
rendered by it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties hereunder of
the Trustee, and, except as otherwise expressly provided herein, the
Company will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its counsel and of all Persons not regularly in its
employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Company also covenants to
indemnify the Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on the part
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of the Trustee and arising out of or in connection with the acceptance
or administration of this trust, including the costs and expenses of
defending itself against any claim of liability in the premises.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness shall
be secured by a lien prior to that of the Junior Subordinated
Debentures upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the benefit of the Holders of
the Junior Subordinated Debentures.
SECTION 9.07. RELIANCE ON OFFICERS' CERTIFICATE. Except as otherwise
provided in Section 9.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting to take any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted to be taken by
it under the provisions of this Indenture upon the faith thereof.
SECTION 9.08. DISQUALIFICATION; CONFLICTING INTERESTS. If the Trustee
has or shall acquire any "conflicting interest" within the meaning of Section
310(b) of the Trust Indenture Act, the Trustee and the Company shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 9.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall at
all times be a Trustee with respect to the Junior Subordinated Debentures issued
hereunder which shall at all times be a corporation organized and doing business
under the laws of the United States of America or any state or territory thereof
or of the District of Columbia, or a corporation or other Person permitted to
act as trustee by the Commission, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000, and subject to supervision or examination by federal, state,
territorial, or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. The Company may not, nor may any Person
directly or indirectly controlling, controlled by, or under common control with
the Company, serve as Trustee. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 9.10.
SECTION 9.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) The Trustee, or any successor hereafter appointed, may
at any time resign by giving written notice thereof to the Company and
by transmitting notice of resignation by mail, first class postage
prepaid, to the Securityholders, as their names and addresses
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appear upon the Securities Register. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed and have accepted
appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of Junior Subordinated
Debentures for at least six months may, subject to the provisions of
Section 7.07, on behalf of such Securityholder and all other Holders,
petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b) In case at any time any one of the following shall
occur:
(i) the Trustee shall fail to comply with the
provisions of Section 9.08 after written request therefor by
the Company or by any Securityholder who has been a bona fide
Holder of Junior Subordinated Debentures for at least six
months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 9.09 and shall fail
to resign after written request therefor by the Company or by
any such Securityholder; or
(iii) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or commence a
voluntary bankruptcy proceeding, or a receiver of the Trustee or
of its property shall be appointed or consented to, or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, the Company may remove the Trustee and
appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee, or, subject to the provisions of Section 7.07,
unless the Trustee's duty to resign is stayed as provided herein, any
Securityholder who has been a bona fide Holder of Junior Subordinated
Debentures for at least six months may, on behalf of that Holder and
all other Holders, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount
of the Junior Subordinated Debentures at the time Outstanding may at
any time remove the Trustee by so notifying the Trustee and the Company
and may appoint a successor Trustee with the consent of the Company.
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(d) Any resignation or removal of the Trustee and
appointment of a successor trustee pursuant to any of the provisions of
this Section shall become effective upon acceptance of appointment by
the successor trustee as provided in Section 9.11.
SECTION 9.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
trustee, 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) Upon request of any such successor trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor trustee all such rights,
powers and trusts referred to in paragraph (a) of this Section.
(c) No successor trustee shall accept its appointment unless
at the time of such acceptance such successor trustee shall be
qualified and eligible under this Article.
(d) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage
prepaid, to the Securityholders, as their names and addresses appear
upon the Securities Register. If the Company fails to transmit such
notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.
SECTION 9.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided that such corporation shall be
qualified and eligible under the provisions of this Article IX, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding. In case any
Junior Subordinated Debentures shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Junior Subordinated Debentures so authenticated with the same effect
as if such successor Trustee had itself authenticated such Junior Subordinated
Debentures.
SECTION 9.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship
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described in Section 311(b) of the Trust Indenture Act. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the Trust
Indenture Act to the extent included therein.
SECTION 9.14. APPOINTMENT OF AUTHENTICATING AGENT. At any time when
any of the Junior Subordinated Debentures remain Outstanding, the Trustee may
appoint an Authenticating Agent or Agents which shall be authorized to act on
behalf of the Trustee to authenticate Junior Subordinated Debentures issued upon
original issuance, exchange, registration of transfer or partial redemption
thereof or pursuant to Section 2.08, and Junior Subordinated Debentures so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Junior Subordinated Debentures by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any state thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $10,000,000 and subject
to supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of such supervision or examining authority, for
the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the 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 notice of
resignation or upon such 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 mail written notice of such appointment by
first class mail, postage prepaid, to all Securityholders as their names and
addresses appear in the Securities Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with the like effect as
if originally named as an Authenticating Agent herein. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
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The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 9.06.
If an appointment is made pursuant to this Section, the Junior
Subordinated Debentures may have endorsed thereon, in lieu of the form of
certificate of authentication set forth in Section 8.01, a certificate of
authentication in the following form:
"This is one of the Junior Subordinated Debentures described in the
within mentioned Indenture."
-------------------------------------------,
as Trustee
By
-----------------------------------------,
as Authenticating Agent
By
-----------------------------------------,
Authorized Signature
ARTICLE X
CONCERNING THE SECURITYHOLDERS
SECTION 10.01. EVIDENCE OF ACTION BY SECURITYHOLDERS. Whenever in this
Indenture it is provided that the Holders of a majority or specified percentage
in aggregate principal amount of the Junior Subordinated Debentures may take any
action (including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that at the time
of taking any such action the Holders of such majority or specified percentage
have joined therein may be evidenced by any instrument or any number of
instruments of similar tenor executed by such Holders in Person or by agent or
proxy appointed in writing.
If the Company shall solicit from the Securityholders any request,
demand, authorization, direction, notice, consent, waiver or other action, the
Company may, at its option, as evidenced by an Officers' Certificate, fix in
advance a record date for the determination of Securityholders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other
action, but the Company shall have no obligation to do so. If such a record date
is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other action may be given before or after the record date, but only
the Securityholders of record at the close of business on the record date shall
be deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Junior Subordinated
Debentures have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that
purpose the Outstanding Junior Subordinated Debentures shall be computed as of
the record date; provided, however, that no such authorization, agreement or
consent by such Securityholders on the record date shall be deemed
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effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 10.02. PROOF OF EXECUTION BY SECURITYHOLDERS. Subject to the
provisions of Section 6.01, proof of the execution of any instrument by a
Securityholder (such proof will not require notarization) or his agent or proxy
and proof of the holding by any Person of any of the Junior Subordinated
Debentures shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person
of any instrument may be proved in any reasonable manner acceptable to
the Trustee.
(b) The ownership of Junior Subordinated Debentures shall
be proved by the Securities Register or by a certificate of the
Securities Registrar thereof.
(c) The Trustee may require such additional proof of any
matter referred to in this Section as it shall deem necessary.
SECTION 10.03. WHO MAY BE DEEMED OWNERS. Prior to the due presentment
for registration of transfer of any Junior Subordinated Debenture, the Company,
the Trustee, any paying agent and any Securities Registrar may deem and treat
the Person in whose name such Junior Subordinated Debenture shall be registered
upon the books of the Company as the absolute owner of such Junior Subordinated
Debenture (whether or not such Junior Subordinated Debenture shall be overdue
and notwithstanding any notice of ownership or writing thereon made by anyone
other than the Securities Registrar) for the purpose of receiving payment of or
on account of the principal of and (subject to Section 2.03) interest on such
Junior Subordinated Debenture and for all other purposes; and neither the
Company nor the Trustee nor any paying agent nor any Securities Registrar shall
be affected by any notice to the contrary.
SECTION 10.04. CERTAIN JUNIOR SUBORDINATED DEBENTURES OWNED BY COMPANY
DISREGARDED. In determining whether the Holders of the requisite aggregate
principal amount of Junior Subordinated Debentures have concurred in any
direction, consent or waiver under this Indenture, the Junior Subordinated
Debentures that are owned by the Company or any other obligor on the Junior
Subordinated Debentures or by any Person directly or indirectly controlling or
controlled by or under common control with the Company or any other obligor on
the Junior Subordinated Debentures shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver, only Junior Subordinated Debentures that the
Trustee actually knows are so owned shall be so disregarded. The Junior
Subordinated Debentures so owned that have been pledged in good faith may be
regarded as Outstanding for the purposes of this Section, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right with respect to
such Junior Subordinated Debentures and that the pledgee is not a Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor. In case of a dispute
as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
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SECTION 10.05. ACTIONS BINDING ON FUTURE SECURITYHOLDERS. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
10.01, of the taking of any action by the Holders of the majority or percentage
in aggregate principal amount of the Junior Subordinated Debentures specified in
this Indenture in connection with such action, any Holder who is shown by the
evidence to have consented to such action may, by filing written notice with the
Trustee, and upon proof of holding as provided in Section 10.02, revoke such
action so far as concerns such Holder's Junior Subordinated Debentures. Except
as aforesaid any such action taken by the Holder shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Holder's Junior
Subordinated Debentures, and of any Junior Subordinated Debentures issued in
exchange therefor, on registration of transfer thereof or in place thereof,
irrespective of whether or not any notation in regard thereto is made upon such
Junior Subordinated Debentures. Any action taken by the Holders of the majority
or percentage in aggregate principal amount of the Junior Subordinated
Debentures specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the Holders of all the
Junior Subordinated Debentures.
ARTICLE XI
SUPPLEMENTAL INDENTURES
SECTION 11.01. SUPPLEMENTAL INDENTURES WITHOUT THE CONSENT OF
SECURITYHOLDERS. In addition to any supplemental indenture otherwise authorized
by this Indenture, the Company and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect), without
the consent of the Securityholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency herein,
or in the Junior Subordinated Debentures, provided that any such action
does not materially adversely affect the interests of the Holders or
the holders of the Preferred Securities so long as they remain
outstanding;
(b) to comply with Article XII;
(c) to provide for uncertificated Junior Subordinated
Debentures in addition to or in place of certificated Junior
Subordinated Debentures;
(d) to add to the covenants of the Company for the benefit
of the Holders or to surrender any right or power herein conferred upon
the Company;
(e) to add to, delete from, or revise the conditions,
limitations, and restrictions on the authorized amount, terms, or
purposes of issue, authentication, and delivery of Junior Subordinated
Debentures, as herein set forth;
(f) to make any change that does not adversely affect the
rights of any Securityholder in any material respect; or
(g) to establish the form of any certifications required to
be furnished pursuant to the terms of this Indenture or to add to the
rights of the Holders.
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The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into any such supplemental indenture
that affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed by the Company and the Trustee without the consent of the
Holders of any of the Junior Subordinated Debentures at the time Outstanding,
notwithstanding any of the provisions of Section 11.02.
SECTION 11.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS. With the consent (evidenced as provided in Section 10.01) of
the Holders of not less than a majority in aggregate principal amount of the
Junior Subordinated Debentures at the time Outstanding, the Company, when
authorized by Board Resolutions, and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner not covered by Section 11.01 the rights of the Holders
of the Junior Subordinated Debentures under this Indenture; provided, however,
that no such supplemental indenture shall without the consent of the Holders of
each Junior Subordinated Debenture then Outstanding, (a) change (except as
expressly provided herein pursuant to Section 2.02) the stated maturity of the
Junior Subordinated Debentures or reduce the principal amount thereof; or reduce
the rate or extend (except as expressly provided herein pursuant to Section
4.01) the time of payment of interest thereon; or (b) reduce the percentage of
principal amount of Junior Subordinated Debentures, the Holders of which are
required to consent to any such supplemental indenture; provided, further, that
if the Junior Subordinated Debentures are held by the Trust or a trustee of the
Trust, such supplemental indenture shall not be effective until the holders of a
majority in aggregate Liquidation Amount of Preferred Securities shall have
consented to such supplemental indenture; provided further, that if the consent
of the Holder of each Outstanding Junior Subordinated Debenture is required,
such supplemental indenture shall not be effective until each Holder of the
Trust Securities shall have consented to such supplemental indenture.
It shall not be necessary for the consent of the Securityholders to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such consent shall approve the substance thereof.
SECTION 11.03. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution
of any supplemental indenture pursuant to the provisions of this Article or of
Section 12.01, this Indenture shall be and be deemed to be modified and amended
in accordance therewith.
SECTION 11.04. JUNIOR SUBORDINATED DEBENTURES AFFECTED BY SUPPLEMENTAL
INDENTURES. Junior Subordinated Debentures, affected by a supplemental
indenture, authenticated and delivered after the execution of such supplemental
indenture pursuant to the provisions of this Article or of Section 12.01, may
bear a notation in form approved by the Company, as to any matter provided for
in such supplemental indenture. If the Company shall so
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determine, new Junior Subordinated Debentures so modified as to conform, in the
opinion of the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the Junior
Subordinated Debentures then Outstanding.
SECTION 11.05. EXECUTION OF SUPPLEMENTAL INDENTURES. Upon the request
of the Company, accompanied by Board Resolutions authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Securityholders required to consent thereto as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion but shall not be obligated to enter into
such supplemental indenture. The Trustee, subject to the provisions of Section
9.01, may receive an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article is authorized or
permitted by, and conforms to, the terms of this Article and that it is proper
for the Trustee under the provisions of this Article to join in the execution
thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in
general terms the substance of such supplemental indenture, to the
Securityholders as their names and addresses appear upon the Securities
Register. Any failure of the Trustee to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
ARTICLE XII
SUCCESSOR CORPORATION
SECTION 12.01. COMPANY MAY CONSOLIDATE, ETC. 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
(a) in case the Company consolidates with or merges into another Person or
conveys or transfers its properties and assets substantially as an entirety to
any Person, the successor Person is organized under the laws of the United
States or any state or the District of Columbia, and such successor Person
expressly assumes the Company's obligations on the Junior Subordinated
Debentures issued under this Indenture; (b) immediately after giving effect
thereto, no Event of Default, and no event which, after notice or lapse of time
or both, would become an Event of Default, shall have occurred and be
continuing; and (c) such successor Person expressly assumes the due and punctual
performance and observance of all the covenants and conditions of this Indenture
to be kept and performed by the Company by executing and delivering a
supplemental indenture in form and substance satisfactory to the Trustee.
SECTION 12.02. SUCCESSOR SUBSTITUTED.
(a) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition and upon the assumption by
the successor Person by supplemental
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indenture, executed and delivered to the Trustee and satisfactory in
form to the Trustee, of the due and punctual payment of the principal
of and interest on all of the Junior Subordinated Debentures
Outstanding and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the
Company, such successor Person shall succeed to and be substituted for
the Company, with the same effect as if it had been named as the
Company herein, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the
Junior Subordinated Debentures.
(b) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition such changes in phraseology
and form (but not in substance) may be made in the Junior Subordinated
Debentures thereafter to be issued as may be appropriate.
SECTION 12.03. EVIDENCE OF CONSOLIDATION, ETC., TO TRUSTEE. The
Trustee, subject to the provisions of Section 9.01, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale,
conveyance, transfer or other disposition, and any such assumption, comply with
the provisions of this Article.
ARTICLE XIII
SATISFACTION AND DISCHARGE
SECTION 13.01. SATISFACTION AND DISCHARGE OF INDENTURE. If at any time:
(a) the Company shall have delivered to the Trustee for cancellation all Junior
Subordinated Debentures theretofore authenticated (other than any Junior
Subordinated Debentures that shall have been destroyed, lost or stolen and that
shall have been replaced or paid as provided in Section 2.08) and Junior
Subordinated Debentures for whose payment money or Governmental Obligations have
theretofore been deposited in trust or segregated and held in trust by the
Company (and thereupon repaid to the Company or discharged from such trust, as
provided in Section 13.05); or (b) all such Junior Subordinated Debentures not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and the Company shall
deposit or cause to be deposited with the Trustee as trust funds the entire
amount in moneys or Governmental Obligations sufficient or a combination thereof
sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay at maturity or upon redemption all Junior Subordinated
Debentures not theretofore delivered to the Trustee for cancellation, including
principal and interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company; then this
Indenture shall thereupon cease to be of further effect except for the
provisions of Sections 2.02, 2.03, 2.04, 2.05, 4.01, 4.02, 4.03 and 9.10, that
shall survive until the date of maturity or redemption date, as the case may be,
and Sections 9.06 and 13.05, that shall survive to such date and thereafter, and
the Trustee, on demand of the Company and at the cost and expense of the
Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture.
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SECTION 13.02. DISCHARGE OF OBLIGATIONS. If at any time all such Junior
Subordinated Debentures not theretofore delivered to the Trustee for
cancellation or that have not become due and payable as described in Section
13.01 shall have been paid by the Company by depositing irrevocably with the
Trustee, as trust funds, moneys or an amount of Governmental Obligations
sufficient to pay at maturity or upon redemption all such Junior Subordinated
Debentures not theretofore delivered to the Trustee for cancellation, including
principal and interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company, then after the
date such moneys or Governmental Obligations, as the case may be, are deposited
with the Trustee the obligations of the Company under this Indenture shall cease
to be of further effect except for the provisions of Sections 2.02, 2.03, 2.04,
2.05, 4.01, 4.02, 4.03, 9.06, 9.10 and 13.05 hereof that shall survive until
such Junior Subordinated Debentures shall mature and be paid. Thereafter,
Sections 9.06 and 13.05 shall survive.
SECTION 13.03. DEPOSITED MONEYS TO BE HELD IN TRUST. All moneys or
Governmental Obligations deposited with the Trustee pursuant to Sections 13.01
or 13.02 shall be held in trust and shall be available for payment as due,
either directly or through any paying agent (including the Company acting as its
own paying agent), to the Holders of the Junior Subordinated Debentures for the
payment or redemption of which such moneys or Governmental Obligations have been
deposited with the Trustee.
SECTION 13.04. PAYMENT OF MONEYS HELD BY PAYING AGENTS. In connection
with the satisfaction and discharge of this Indenture all moneys or Governmental
Obligations then held by any paying agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee and thereupon such
paying agent shall be released from all further liability with respect to such
moneys or Governmental Obligations.
SECTION 13.05. REPAYMENT TO COMPANY. Any moneys or Governmental
Obligations deposited with any paying agent or the Trustee, or then held by the
Company in trust for payment of principal of or interest on the Junior
Subordinated Debentures that are not applied but remain unclaimed by the Holders
of such Junior Subordinated Debentures for at least two years after the date
upon which the principal of or interest on such Junior Subordinated Debentures
shall have respectively become due and payable, shall be repaid to the Company
on ________________ of each year or (if then held by the Company) shall be
discharged from such trust; and thereupon the paying agent and the Trustee shall
be released from all further liability with respect to such moneys or
Governmental Obligations, and the Holder of any of the Junior Subordinated
Debentures entitled to receive such payment shall thereafter, as an unsecured
general creditor, look only to the Company for the payment thereof.
ARTICLE XIV
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 14.01. NO RECOURSE. No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Junior Subordinated
Debenture, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer
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or director as such, past, present or future, of the Company or of any
predecessor or successor corporation, either directly or through the Company or
any such predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company or of
any predecessor or successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Junior Subordinated Debentures or implied therefrom; and that any and all
such personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director as such,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Junior Subordinated Debentures or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Junior Subordinated
Debentures.
ARTICLE XV
MISCELLANEOUS PROVISIONS
SECTION 15.01. EFFECT ON SUCCESSORS AND ASSIGNS. All the covenants,
stipulations, promises and agreements in this Indenture contained by or on
behalf of the Company or the Trustee shall bind their respective successors and
assigns, whether so expressed or not.
SECTION 15.02. ACTIONS BY SUCCESSOR. Any act or proceeding by any
provision of this Indenture authorized or required to be done or performed by
any board, committee or officer of the Company shall and may be done and
performed with like force and effect by the corresponding board, committee or
officer of any corporation that shall at the time be the lawful sole successor
of the Company.
SECTION 15.03. SURRENDER OF COMPANY POWERS. The Company by instrument
in writing executed by authority of two-thirds of its Board of Directors and
delivered to the Trustee may surrender any of the powers reserved to the
Company, and thereupon such power so surrendered shall terminate both as to the
Company and as to any successor corporation.
SECTION 15.04. NOTICES. Except as otherwise expressly provided herein
any notice or demand that by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Holders of Junior
Subordinated Debentures to or on the Company may be given or served by being
deposited first class postage prepaid in a post-office letterbox addressed
(until another address is filed in writing by the Company with the Trustee), as
follows: c/o Union Bankshares, Ltd., 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000, Attention: Chief Executive Officer. Any notice, election,
request or demand by the Company or any Securityholder to or upon the Trustee
shall be deemed to have been sufficiently given or made, for all purposes, if
given or made in writing at the Corporate Trust Office of the Trustee.
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SECTION 15.05. GOVERNING LAW. This Indenture and each Junior
Subordinated Debenture shall be deemed to be a contract made under the internal
laws of the State of Colorado and for all purposes shall be construed in
accordance with the laws of said state, provided that the immunities and the
standard of care of the Trustee shall be governed by Colorado law.
SECTION 15.06. TREATMENT OF JUNIOR SUBORDINATED DEBENTURES AS DEBT. It
is intended that the Junior Subordinated Debentures will be treated as
indebtedness and not as equity for federal income tax purposes. The provisions
of this Indenture shall be interpreted to further this intention.
SECTION 15.07. COMPLIANCE CERTIFICATES AND OPINIONS.
(a) Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and
an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent have been complied with, except that in the
case of any such application or demand as to which the furnishing of
such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
(b) Every certificate or opinion delivered to the Trustee
with respect to compliance with a condition or covenant in this
Indenture shall include (i) a statement that the Person making such
certificate or opinion has read such covenant or condition; (ii) a
brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (iii) a statement that, in the
opinion of such Person, such Person has made such examination or
investigation as is necessary to enable such Person to express an
informed opinion as to whether or not such covenant or condition has
been complied with; and (iv) a statement as to whether or not, in the
opinion of such Person, such condition or covenant has been complied
with.
SECTION 15.08. PAYMENTS ON BUSINESS DAYS. In any case where the date of
maturity of interest or principal of the Junior Subordinated Debentures or the
date of redemption of the Junior Subordinated Debentures shall not be a Business
Day, then payment of interest or principal will be made on the next succeeding
Business Day (without any additional interest or other payment in respect of any
such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on the date such
payment was originally payable.
SECTION 15.09. CONFLICT WITH TRUST INDENTURE ACT. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
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SECTION 15.10. COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 15.11. SEPARABILITY. In case any one or more of the provisions
contained in this Indenture or in the Junior Subordinated Debentures shall for
any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Indenture or of the Junior Subordinated Debentures, but this Indenture
and the Junior Subordinated Debentures shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
SECTION 15.12. ASSIGNMENT. The Company will have the right at all times
to assign any of its respective rights or obligations under this Indenture to a
direct or indirect wholly owned Subsidiary of the Company, provided that, in the
event of any such assignment, the Company will remain liable for all such
obligations. Subject to the foregoing, this Indenture is binding upon and inures
to the benefit of the parties thereto and their respective successors and
assigns. This Indenture may not otherwise be assigned by the parties hereto.
SECTION 15.13. ACKNOWLEDGMENT OF RIGHTS. The Company acknowledges that,
with respect to any Junior Subordinated Debentures held by the Trust or a
trustee of the Trust, if the Property Trustee of the Trust fails to enforce its
rights under this Indenture as the Holder of the Junior Subordinated Debentures
held as the assets of the Trust, any holder of Preferred Securities may
institute legal proceedings directly against the Company to enforce such
Property Trustee's rights under this Indenture without first instituting any
legal proceedings against such Property Trustee or any other Person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Company to pay
interest or principal on the Junior Subordinated Debentures on the date such
interest or principal is otherwise payable (or in the case of redemption, on the
redemption date), the Company acknowledges that a holder of Preferred Securities
may directly institute a proceeding for enforcement of payment to such holder of
the principal of or interest on the Junior Subordinated Debentures having a
principal amount equal to the aggregate Liquidation Amount of the Preferred
Securities of such holder on or after the respective due date specified in the
Junior Subordinated Debentures. This Section 15.13 may not be amended without
the prior written consent of the holders of all of the Preferred Securities.
ARTICLE XVI
SUBORDINATION OF JUNIOR SUBORDINATED DEBENTURES
SECTION 16.01. AGREEMENT TO SUBORDINATE. The Company covenants and
agrees, and each Holder of Junior Subordinated Debentures issued hereunder by
such Holder's acceptance thereof likewise covenants and agrees, that all Junior
Subordinated Debentures shall be issued subject to the provisions of this
Article XVI; and each Holder, whether upon original issue or upon transfer or
assignment thereof, accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of and interest on all
Junior Subordinated Debentures issued hereunder shall, to the extent and in the
manner hereinafter set forth, be
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subordinated and junior in right of payment to the prior payment in full of all
Senior and Subordinated Debt, whether outstanding at the date of this Indenture
or thereafter incurred.
No provision of this Article XVI shall prevent the occurrence of any
default or Event of Default hereunder.
SECTION 16.02. DEFAULT ON SENIOR AND SUBORDINATED DEBT. In the event
and during the continuation of any default by the Company in the payment of
principal, premium, interest or any other payment due on any Senior and
Subordinated Debt of the Company or in the event that the maturity of any Senior
and Subordinated Debt of the Company has been accelerated because of a default,
then, in either case, no payment shall be made by the Company with respect to
the principal of or interest on the Junior Subordinated Debentures.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 16.02, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior and
Subordinated Debt or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior and
Subordinated Debt may have been issued, as their respective interests may
appear, but only to the extent that the holders of the Senior and Subordinated
Debt (or their representative or representatives or a trustee) notify the
Trustee in writing within 90 days of such payment of the amounts then due and
owing on the Senior and Subordinated Debt and only the amounts specified in such
notice to the Trustee shall be paid to the holders of Senior and Subordinated
Debt.
SECTION 16.03. LIQUIDATION; DISSOLUTION; BANKRUPTCY. Upon any payment
by the Company or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution or winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due upon all Senior and Subordinated Debt of the
Company shall first be paid in full, or payment thereof provided for in money in
accordance with its terms, before any payment is made by the Company on account
of the principal or interest on the Junior Subordinated Debentures; and upon any
such dissolution or winding-up or liquidation or reorganization, any payment by
the Company, or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders or the Trustee
would be entitled to receive from the Company, except for the provisions of this
Article XVI, shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders or by the Trustee under the Indenture if
received by them or it, directly to the holders of Senior and Subordinated Debt
of the Company (pro rata to such holders on the basis of the respective amounts
of Senior and Subordinated Debt held by such holders, as calculated by the
Company) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Senior and Subordinated Debt may have been issued, as their respective interests
may appear, to the extent necessary to pay such Senior and Subordinated Debt in
full, in money or money's worth, after giving effect to any concurrent payment
or distribution to or for the holders of such Senior and Subordinated Debt,
before any payment or distribution is made to the Holders or to the Trustee.
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In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee before all Senior and Subordinated Debt of the Company is paid in full,
or provision is made for such payment in money in accordance with its terms,
such payment or distribution shall be held in trust for the benefit of and shall
be paid over or delivered to the holders of such Senior and Subordinated Debt or
their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior and
Subordinated Debt may have been issued, and their respective interests may
appear, as calculated by the Company, for application to the payment of all
Senior and Subordinated Debt of the Company, as the case may be, remaining
unpaid to the extent necessary to pay such Senior and Subordinated Debt in full
in money in accordance with its terms, after giving effect to any concurrent
payment or distribution to or for the benefit of the holders of such Senior and
Subordinated Debt.
For purposes of this Article XVI, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article XVI with respect
to the Junior Subordinated Debentures to the payment of all Senior and
Subordinated Debt of the Company, as the case may be, that may at the time be
outstanding, provided that (a) such Senior and Subordinated Debt is assumed by
the new corporation, if any, resulting from any such reorganization or
readjustment, and (b) the rights of the holders of such Senior and Subordinated
Debt are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the Company with, or the
merger of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of its property
as an entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided for in Article XII of this Indenture shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the purposes
of this Section 16.03 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions stated
in Article XII of this Indenture. Nothing in Section 16.02 or in this Section
16.03 shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 9.06 of this Indenture.
SECTION 16.04. SUBROGATION. Subject to the payment in full of all
Senior and Subordinated Debt of the Company, the rights of the Holders of the
Junior Subordinated Debentures shall be subrogated to the rights of the holders
of such Senior and Subordinated Debt to receive payments or distributions of
cash, property or securities of the Company, as the case may be, applicable to
such Senior and Subordinated Debt until the principal of and interest on the
Junior Subordinated Debentures shall be paid in full; and, for the purposes of
such subrogation, no payments or distributions to the holders of such Senior and
Subordinated Debt of any cash, property or securities to which the Holders of
the Junior Subordinated Debentures or the Trustee would be entitled except for
the provisions of this Article XVI, and no payment over pursuant to the
provisions of this Article XVI to or for the benefit of the holders of such
Senior and Subordinated Debt by Holders of the Junior Subordinated Debentures or
the Trustee, shall, as between the Company, its creditors other than holders of
Senior and Subordinated Debt of the Company, and the Holders of the Junior
Subordinated Debentures, be deemed to be a payment by the Company to or on
account of such Senior and Subordinated Debt. It is understood that
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the provisions of this Article XVI are and are intended solely for the purposes
of defining the relative rights of the Holders of the Junior Subordinated
Debentures, on the one hand, and the holders of such Senior and Subordinated
Debt on the other hand.
Nothing contained in this Article XVI or elsewhere in this Indenture or
in the Junior Subordinated Debentures is intended to or shall impair, as between
the Company, its creditors other than the holders of Senior and Subordinated
Debt of the Company, and the Holders of the Junior Subordinated Debentures, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders of the Junior Subordinated Debentures the principal of and interest on
the Junior Subordinated Debentures as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the Holders of the Junior Subordinated Debentures and
creditors of the Company, other than the holders of Senior and Subordinated Debt
of the Company, nor shall anything herein or therein prevent the Trustee or the
Holder of any Junior Subordinated Debenture from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article XVI of the holders of such Senior and
Subordinated Debt in respect of cash, property or securities of the Company, as
the case may be, received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article XVI, the Trustee, subject to the provisions of Section 9.01, and
the Holders of the Junior Subordinated Debentures shall be entitled to
conclusively rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Holders of the
Junior Subordinated Debentures, for the purposes of ascertaining the Persons
entitled to participate in such distribution, the holders of Senior and
Subordinated Debt and other indebtedness of the Company, as the case may be, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article XVI.
SECTION 16.05. TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder of
Junior Subordinated Debentures by such Holder's acceptance thereof authorizes
and directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article XVI and appoints the Trustee such Holder's attorney-in-fact for any and
all such purposes.
SECTION 16.06. NOTICE BY THE COMPANY. The Company shall give prompt
written notice to a Responsible Officer of the Trustee of any fact known to the
Company that would prohibit the making of any payment of moneys to or by the
Trustee in respect of the Junior Subordinated Debentures pursuant to the
provisions of this Article XVI. Notwithstanding the provisions of this Article
XVI or any other provision of this Indenture, the Trustee shall not be charged
with knowledge of the existence of any facts that would prohibit the making of
any payment of moneys to or by the Trustee in respect of the Junior Subordinated
Debentures pursuant to the provisions of this Article XVI, unless and until a
Responsible Officer of the Trustee shall have received written notice thereof
from the Company or a holder or holders of Senior and Subordinated Debt or from
any trustee therefor; and before the receipt of any such written notice,
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the Trustee, subject to the provisions of Section 9.01, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section 16.06 at
least two Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal of or interest on any Junior Subordinated Debenture),
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such money and to apply the same
to the purposes for which it was received, and shall not be affected by any
notice to the contrary that may be received by it within two Business Days prior
to such date.
The Trustee, subject to the provisions of Section 9.01, shall be
entitled to conclusively rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior and Subordinated Debt of
the Company (or a trustee on behalf of such holder), to establish that such
notice has been given by a holder of such Senior and Subordinated Debt or a
trustee on behalf of any such holder or holders. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of such Senior and Subordinated Debt to
participate in any payment or distribution pursuant to this Article XVI, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior and Subordinated
Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article XVI, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 16.07. RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR AND
SUBORDINATED DEBT. The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article XVI in respect of any Senior and
Subordinated Debt at any time held by it, to the same extent as any other holder
of Senior and Subordinated Debt, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder.
With respect to the holders of Senior and Subordinated Debt of the
Company, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article XVI, and
no implied covenants or obligations with respect to the holders of such Senior
and Subordinated Debt shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of such
Senior and Subordinated Debt and, subject to the provisions of Section 9.01, the
Trustee shall not be liable to any holder of such Senior and Subordinated Debt
if it shall pay over or deliver to Holders of Junior Subordinated Debentures,
the Company or any other Person money or assets to which any holder of such
Senior and Subordinated Debt shall be entitled by virtue of this Article XVI or
otherwise.
SECTION 16.08. SUBORDINATION MAY NOT BE IMPAIRED. No right of any
present or future holder of any Senior and Subordinated Debt of the Company 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,
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regardless of any knowledge thereof that any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior and Subordinated Debt of the Company may, at any time and
from time to time, without the consent of or notice to the Trustee or the
Holders of the Junior Subordinated Debentures, without incurring responsibility
to the Holders of the Junior Subordinated Debentures and without impairing or
releasing the subordination provided in this Article XVI or the obligations
hereunder of the Holders of the Junior Subordinated Debentures to the holders of
such Senior and Subordinated Debt, do any one or more of the following: (a)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, such Senior and Subordinated Debt, or otherwise amend or
supplement in any manner such Senior and Subordinated Debt or any instrument
evidencing the same or any agreement under which such Senior and Subordinated
Debt is outstanding; (b) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing such Senior and Subordinated
Debt; (c) release any Person liable in any manner for the collection of such
Senior and Subordinated Debt; and (d) exercise or refrain from exercising any
rights against the Company and any other Person.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
UNION BANKSHARES, LTD.
By
---------------------------------
Xxxxxxx X. Xxxxxxxx, Chairman and
Chief Executive Officer
AMERICAN SECURITIES TRANSFER &
TRUST, INC., as Trustee
By
---------------------------------
Name
--------------------------------
Title
-------------------------------
By
---------------------------------
Name
--------------------------------
Title
-------------------------------
STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
On the _______ day of ____________, 1998, before me personally came
__________________, to me known, who, being by me duly sworn, did depose and say
that he is the Chairman and Chief Executive Officer of UNION BANKSHARES, LTD.,
one of the corporations described in and which executed the above instrument;
and that he signed his name thereto on behalf of said corporation by authority
of the Board of Directors of said corporation.
Witness my hand and official seal:
-------------------------------
Notary Public
My Commission Expires:
-------------------------------
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STATE OF COLORADO )
) ss.
COUNTY OF DENVER )
On the _______ day of ___________, 1998, before me personally came
______________________, to me known, who, being by me duly sworn, did depose and
say that he/she is the _______________________ of AMERICAN SECURITIES TRANSFER &
TRUST, INC., one of the corporations described in and which executed the above
instrument; and that he/she signed his/her name thereto on behalf of said
corporation by authority of the Board of Directors of said corporation.
Witness my hand and official seal:
-------------------------------
Notary Public
My Commission Expires:
-------------------------------
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EXHIBIT A
(FORM OF FACE OF JUNIOR SUBORDINATED DEBENTURE)
This Junior Subordinated Debenture is a Global Subordinated Debenture
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 Junior Subordinated
Debenture is exchangeable for Junior Subordinated Debentures registered in the
name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Junior
Subordinated Debenture (other than a transfer of this Junior Subordinated
Debenture as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in such limited circumstances.
Unless this Junior Subordinated Debenture is presented by an authorized
representative of American Securities Transfer & Trust, Inc. (
____[address]_______________) to the issuer or its agent for registration of
transfer, exchange or payment, and any Junior Subordinated Debenture issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of American Securities Transfer & Trust, Inc. (and any
payment hereon is made to Cede & Co. or to such other entity as is requested by
an authorized representative of American Securities Transfer & Trust, Inc.), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch the registered owner hereof, Cede & Co., has an interest
herein.
Registered Principal Amount
Registered No. _______________ $__________
CUSIP No. _______________
UNION BANKSHARES, LTD.
____% JUNIOR SUBORDINATED DEBENTURE
DUE ________________, 2028
Union Bankshares, Ltd., a Delaware corporation (the "Company," which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to American Securities Transfer
& Trust, Inc. or registered assigns, the principal sum of
____________________________________________________________________ Dollars
($__________) on ________________, 2028 (which date may be shortened as provided
in the Indenture, the "Stated Maturity"), and to pay interest on said principal
sum from ________________, 1998, or from the most recent interest payment date
(each such date, an "Interest Payment Date") to which interest has been paid or
duly provided for, quarterly (subject to deferral as set forth herein) in
arrears on the 15th day of January, April, July and October in each year
commencing July 15, 1999, at the rate of ____% per annum until the principal
hereof shall have become due and payable, and on any overdue principal and
(without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum compounded quarterly. The amount of each
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interest payment due with respect to the Junior Subordinated Debentures will
include amounts accrued through the date the interest payment is due. The amount
of interest payable on any Interest Payment Date shall be computed on the basis
of a 360-day year of twelve 30-day months. In the event that any date on which
interest is payable on this Junior Subordinated Debenture is not a Business Day
(as defined in the Indenture), then payment of interest payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the person in whose name this Junior
Subordinated Debenture (or one or more Predecessor Junior Subordinated
Debentures, as defined in the Indenture) is registered at the close of business
on the regular record date for such interest installment, which shall be the
close of business on the business day next preceding such Interest Payment Date
unless otherwise provided in the Indenture. The principal of and the interest on
this Junior Subordinated Debenture shall be payable at the office or agency of
the Trustee (as defined in the Indenture) maintained for that purpose in any
coin or currency of the United States of America that at the time of payment is
legal tender for payment of public and private debts; provided, however, that
payment of interest may be made at the option of the Company by check mailed to
the Registered Holder (as defined in the Indenture) at such address as shall
appear in the Securities Register (as defined in the Indenture). Notwithstanding
the foregoing, so long as the Holder of this Junior Subordinated Debenture is
the Property Trustee (as defined in the Indenture), the payment of the principal
of and interest on this Junior Subordinated Debenture will be made at such place
and to such account as may be designated by the Property Trustee.
The Stated Maturity may be shortened at any time by the Company to any
date not earlier than ________________, 2003, subject to the Company having
received prior approval of the Federal Reserve (as defined in the Indenture) if
then required under applicable capital guidelines or policies of the Federal
Reserve.
The indebtedness evidenced by this Junior Subordinated Debenture is, to
the extent provided in the Indenture, subordinate and junior in right of payment
to the prior payment in full of all Senior and Subordinated Debt (as defined in
the Indenture), and this Junior Subordinated Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Junior
Subordinated Debenture, by accepting the same, (a) agrees to and shall be bound
by such provisions, (b) authorizes and directs the Trustee on his or her behalf
to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior and Subordinated Debt, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said provisions.
This Junior Subordinated Debenture shall not be entitled to any benefit
under the Indenture, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
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The provisions of this Junior Subordinated Debenture are continued on
the reverse side hereof and such continued provisions shall for all purposes
have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated: UNION BANKSHARES, LTD.
-------------------
By
-----------------------------------,
------------------------
Chairman and Chief Executive Officer
Attest:
By
-------------------------------
Secretary
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[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Junior Subordinated Debentures described in the
within-mentioned Indenture.
Dated: AMERICAN SECURITIES TRANSFER &
--------------------------- TRUST, INC., as Trustee
By
-------------------------------
Authorized Signature
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[FORM OF REVERSE OF JUNIOR SUBORDINATED DEBENTURE]
____% JUNIOR SUBORDINATED DEBENTURE
(CONTINUED)
This Junior Subordinated Debenture is one of the junior subordinated
debentures of the Company (herein sometimes referred to as the "Junior
Subordinated Debentures"), specified in the Indenture, all issued under and
pursuant to a Subordinated Indenture dated as of ________________, 1998 (the
"Indenture") duly executed and delivered between the Company and American
Securities Transfer & Trust, Inc., as Trustee (the "Trustee"), to which
Indenture reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the Holders of the Junior Subordinated Debentures. The Junior
Subordinated Debentures are limited in aggregate principal amount as specified
in the Indenture.
Because of the occurrence and continuation of a Special Event (as
defined in the Indenture), in certain circumstances, this Junior Subordinated
Debenture may become due and payable at the option of the Company at the
principal amount together with any interest accrued thereon (the "Redemption
Price"). The Redemption Price shall be paid prior to 2:00 p.m. Denver, Colorado
time, on the date of such redemption or at such earlier time as the Company
determines.
The Company shall have the right to redeem this Junior Subordinated
Debenture at the option of the Company, in whole or in part, from time to time,
on or after ________________, 2003, at a redemption price equal to 100% of the
principal amount to be redeemed plus any accrued but unpaid interest thereon to
the date of such redemption. Any redemption pursuant to this paragraph will be
made upon not less than 30 days' nor more than 60 days' notice. If the Junior
Subordinated Debentures are only partially redeemed by the Company pursuant to
this paragraph, the Junior Subordinated Debentures will be redeemed pro rata or
by lot or by any other method utilized by the Trustee; provided that if, at the
time of redemption, the Junior Subordinated Debentures are registered as a
Global Subordinated Debenture (as defined in the Indenture), the Depositary (as
defined in the Indenture) shall determine the principal amount of such Junior
Subordinated Debentures held by each Junior Subordinated Debenture Holder to be
redeemed in accordance with its procedures.
In the event of redemption of this Junior Subordinated Debenture in
part only, a new Junior Subordinated Debenture for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default (as defined in the Indenture), shall have
occurred and be continuing, the principal of all of the Junior Subordinated
Debentures may be declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the conditions provided
in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Junior Subordinated Debentures at the time
Outstanding, as defined in the Indenture, to execute
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65
supplemental indentures for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Junior Subordinated Debentures; provided, however, that no such
supplemental indenture shall (i) change the stated maturity of the Junior
Subordinated Debentures except as provided in the Indenture, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, without the consent of the Holder of each Junior Subordinated
Debenture so affected, or (ii) reduce the aforesaid percentage of Junior
Subordinated Debentures, the Holders of which are required to consent to any
such supplemental indenture, without the consent of the Holders of each Junior
Subordinated Debenture then Outstanding and affected thereby. The Indenture also
contains provisions permitting the Holders of a majority in aggregate principal
amount of the Junior Subordinated Debentures at the time Outstanding, on behalf
of all of the Holders of the Junior Subordinated Debentures, to waive any past
default in the performance of any of the covenants contained in the Indenture,
or established pursuant to the Indenture, and its consequences, except a default
in the payment of the principal of or interest on any of the Junior Subordinated
Debentures. Any such consent or waiver by the registered Holder of this Junior
Subordinated Debenture (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of this Junior Subordinated Debenture and of any Junior Subordinated Debenture
issued in exchange herefor or in place hereof (whether by registration of
transfer or otherwise), irrespective of whether or not any notation of such
consent or waiver is made upon this Junior Subordinated Debenture.
No reference herein to the Indenture and no provision of this Junior
Subordinated Debenture or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the principal of and
interest on this Junior Subordinated Debenture at the time and place and at the
rate and in the money herein prescribed.
The Company shall have the right at any time during the term of the
Junior Subordinated Debentures and from time to time to extend the interest
payment period of such Junior Subordinated Debentures for up to 20 consecutive
quarters (an "Extended Interest Payment Period"), at the end of which period the
Company shall pay all interest then accrued and unpaid (together with interest
thereon at the rate specified for the Junior Subordinated Debentures to the
extent that payment of such interest is enforceable under applicable law).
Before the termination of any such Extended Interest Payment Period, the Company
may further extend such Extended Interest Payment Period, provided that such
Extended Interest Payment Period together with all such further extensions
thereof shall not exceed 20 consecutive quarters or extend beyond the Stated
Maturity. At the termination of any such Extended Interest Payment Period and
upon the payment of all accrued and unpaid interest and any additional amounts
then due, the Company may commence a new Extended Interest Payment Period.
The Company has agreed that if at any time (a) there shall have
occurred any event of which the Company has actual knowledge that (i) with the
giving of notice or the lapse of time, or both, would constitute an Event of
Default and (ii) in respect to which the Company shall not have taken reasonable
steps to cure, or (b) the Company shall have given notice of its election of an
Extended Interest Payment Period as provided herein and shall not have rescinded
such notice, or such Extended Interest Payment Period, or any extension thereof,
shall be continuing; or (c) while the Junior Subordinated Debentures are held by
the Trust, the Company shall be in
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default with respect to its payment of any obligation under the Preferred
Securities Guarantee, then the Company will 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, interest or premium, if any, on or repay, repurchase or redeem any
debt securities of the Company (including the Junior Subordinated Debentures)
that rank pari passu with or junior in interest to the Junior Subordinated
Debentures or make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any subsidiary of the Company if such
guarantee ranks pari passu or junior in interest to the Junior Subordinated
Debentures (other than (A) dividends or distributions in common stock, (B) any
declaration of a dividend in connection with the implementation of a
shareholders' rights plan, or the issuance of stock under any such plan in the
future or the redemption or repurchase of any such rights pursuant thereto, (C)
payments under the Preferred Securities Guarantee and (D) purchases of common
stock related to the issuance of common stock or rights under any of the
Company's benefit plans for its directors, officers or employees).
As provided in the Indenture and subject to certain limitations therein
set forth, this Junior Subordinated Debenture is transferable by the registered
Holder hereof on the Securities Register of the Company, upon surrender of this
Junior Subordinated Debenture for registration of transfer at the office or
agency of the Trustee accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company or the Trustee duly executed by the
registered Holder hereof or such Holder's attorney duly authorized in writing,
and thereupon one or more new Junior Subordinated Debentures of authorized
denominations and for the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be made for any
such transfer, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Junior
Subordinated Debenture, the Company, the Trustee, any paying agent and the
Securities Registrar (as defined in the Indenture) may deem and treat the
Registered Holder hereof as the absolute owner hereof (whether or not this
Junior Subordinated Debenture shall be overdue and notwithstanding any notice of
ownership or writing hereon made by anyone other than the Securities Registrar)
for the purpose of receiving payment of or on account of the principal hereof
and interest due hereon and for all other purposes, and neither the Company nor
the Trustee nor any paying agent nor any Securities Registrar shall be affected
by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Junior Subordinated Debenture, or for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the Indenture,
against any incorporator, stockholder, officer or director, past, present or
future, as such, of the Company or of any predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such liability being,
by the acceptance hereof and as part of the consideration for the issuance
hereof, expressly waived and released.
The Junior Subordinated Debentures are issuable only in registered form
without coupons in denominations of $10 and any integral multiple thereof. This
Global Subordinated Debenture is exchangeable for Junior Subordinated Debentures
in definitive form only under certain limited circumstances set forth in the
Indenture. Junior Subordinated Debentures so issued are issuable
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only in registered form without coupons in denominations of $10 and any integral
multiple thereof.
All terms used in this Junior Subordinated Debenture that are defined
in the Indenture shall have the meanings assigned to them in the Indenture.
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EXHIBIT A FORM OF JUNIOR SUBORDINATED DEBENTURE
A-9
