EXHIBIT 4.1
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EAGLE FINANCIAL CORP.
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INDENTURE
Dated as of April 1, 1997
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WILMINGTON TRUST COMPANY
as Debenture Trustee
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JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as
of April 1, 1997 between Eagle Financial Corp. and Wilmington Trust Company, as
Debenture Trustee:
ACT SECTION INDENTURE SECTION
310(a)(1).........................................................................6.09
(a)(2) ......................................................................6.09
310(a)(3)..........................................................................N/A
(a)(4)........................................................................N/A
310(a)(5)...................................................................6.10, 6.11
310(b).............................................................................N/A
310(c)............................................................................6.13
311(a) and (b).....................................................................N/A
311(c)...................................................................4.01, 4.02(a)
312(a)............................................................................4.02
312(b) and (c)....................................................................4.04
313(a)............................................................................4.04
313(b)(1).........................................................................4.04
313(b)(2).........................................................................4.04
313(c)............................................................................4.04
313(d)............................................................................4.04
314(a)............................................................................4.03
314(b).............................................................................N/A
314(c)(1) and (2).................................................................6.07
314(c)(3)..........................................................................N/A
314(d) ............................................................................N/A
314(e)............................................................................6.07
314(f) ............................................................................N/A
315(a)(c) and (d).................................................................6.01
315(b) ...........................................................................5.08
315(e) ...........................................................................5.09
316(a)(1) ........................................................................5.07
316(a)(2) .........................................................................N/A
316(a) last sentence .............................................................2.09
316(b) ...........................................................................9.02
317(a) ...........................................................................5.05
317(b) ...........................................................................6.05
318(a) ..........................................................................13.08
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THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
TABLE OF CONTENTS
Page
ARTICLE I............................................................................................1
SECTION 1.01. Definitions......................................................................1
Additional Sums................................................................................1
Adjusted Treasury Rate.........................................................................2
Affiliate......................................................................................2
Authenticating Agent...........................................................................2
Bankruptcy Law.................................................................................2
Board of Directors.............................................................................2
Board Resolution...............................................................................2
Business Day...................................................................................2
Capital Securities.............................................................................2
Capital Securities Guarantee...................................................................3
Commission.....................................................................................3
Common Securities..............................................................................3
Common Securities Guarantee....................................................................3
Common Stock...................................................................................3
Comparable Treasury Issue......................................................................3
Comparable Treasury Price......................................................................3
Corporation....................................................................................4
Corporation Request............................................................................4
Compounded Interest............................................................................4
Custodian......................................................................................4
Debentu .......................................................................................4
Declaration....................................................................................4
Default .......................................................................................4
Deferred Interest..............................................................................4
Definitive Securities..........................................................................5
Depositary.....................................................................................5
Dissolution Event..............................................................................5
Eagle Financial Capital Trust..................................................................5
Event of Default...............................................................................5
Exchange Act...................................................................................5
Exchange Offer.................................................................................5
Extended Interest Payment Period...............................................................5
Federal Reserve................................................................................6
Global Security................................................................................6
Indebtedness\..................................................................................6
Indebtedness Ranking on a Parity with the Securities...........................................6
Indebtedness Ranking Junior to the Securities..................................................7
Indenture......................................................................................7
Initial Optional Prepayment Date...............................................................7
Interest Payment Date..........................................................................7
Liquidated Damages.............................................................................7
Make Whole Amount..............................................................................7
Maturity Date.................................................................................7
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Mortgage ......................................................................................8
Non Book-Entry Capital Securities..............................................................8
Officers ......................................................................................8
Officers' Certificate..........................................................................8
Opinion of Counsel.............................................................................8
Optional Prepayment Price......................................................................8
Other Debentures...............................................................................8
Other Guarantees...............................................................................8
outstanding....................................................................................8
Person ........................................................................................9
Predecessor Security...........................................................................9
Prepayment Price...............................................................................9
Principal Office of the Debenture Trustee......................................................9
Property Trustee...............................................................................9
Purchase Agreement.............................................................................9
Quotation Agent................................................................................9
Reference Treasury Dealer......................................................................9
Reference Treasury Dealer Quotations...........................................................9
Registration Rights Agreement..................................................................10
Regulatory Capital Event.......................................................................10
Responsible Officer............................................................................10
Restricted Security............................................................................10
Rule 144A......................................................................................10
Securities.....................................................................................11
Securities Act.................................................................................11
Securityholder.................................................................................11
holder of Securities...........................................................................11
Security Register..............................................................................11
Senior Indebtedness............................................................................11
Series A Securities............................................................................11
Series B Securities............................................................................11
Special Event..................................................................................11
Special Event Prepayment Price.................................................................11
Subsidiary.....................................................................................11
Tax Event......................................................................................12
Trust Securities...............................................................................12
U.S. Government Obligations....................................................................12
ARTICLE II...........................................................................................13
SECTION 2.01. Forms Generally..................................................................13
SECTION 2.02. Execution and Authentication.....................................................13
SECTION 2.03. Form and Payment.................................................................14
SECTION 2.04. Legends..........................................................................14
SECTION 2.05. Global Security..................................................................15
SECTION 2.06 Interest.........................................................................17
SECTION 2.07. Transfer and Exchange............................................................18
SECTION 2.08. Replacement Securities...........................................................20
SECTION 2.09. Temporary Securities.............................................................20
SECTION 2.10. Cancellation.....................................................................21
SECTION 2.11. Defaulted Interest...............................................................21
SECTION 2.12. CUSIP Numbers....................................................................23
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ARTICLE III..........................................................................................23
SECTION 3.01. Payment of Principal, Premium and Interest.......................................23
SECTION 3.02. Offices for Notices and Payments, etc............................................24
SECTION 3.03. Appointments to Fill Vacancies in Debenture Trustee's Office.....................25
SECTION 3.04. Provision as to Paying Agent.....................................................25
SECTION 3.05. Certificate to Debenture Trustee.................................................26
SECTION 3.06. Compliance with Consolidation Provisions.........................................26
SECTION 3.07. Limitation on Dividends..........................................................27
SECTION 3.08. Covenants as to Eagle Financial Capital Trust....................................28
SECTION 3.09. Payment of Expenses..............................................................28
SECTION 3.10. Payment Upon Resignation or Removal..............................................29
ARTICLE IV...........................................................................................29
SECTION 4.01. Securityholders' Lists...........................................................29
SECTION 4.02. Preservation and Disclosure of Lists.............................................30
SECTION 4.03. Reports by the Corporation.......................................................32
SECTION 4.04. Reports by the Debenture Trustee.................................................33
ARTICLE V............................................................................................33
SECTION 5.01. Events of Default................................................................33
SECTION 5.02. Payment of Securities on Default; Suit Therefor..................................36
SECTION 5.03. Application of Moneys Collected by Debenture Trustee.............................38
SECTION 5.04. Proceedings by Securityholders...................................................39
SECTION 5.05. Proceedings by Debenture Trustee.................................................40
SECTION 5.06. Remedies Cumulative and Continuing...............................................40
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by Majority of Securityholders...40
SECTION 5.08. Notice of Defaults...............................................................42
SECTION 5.09. Undertaking to Pay Costs.........................................................42
ARTICLE VI...........................................................................................43
SECTION 6.01. Duties and Responsibilities of Debenture Trustee.................................43
SECTION 6.02. Reliance on Documents, Opinions, etc.............................................44
SECTION 6.03. No Responsibility for Recitals, etc..............................................46
SECTION 6.04. Debenture Trustee, Authenticating Agent, Paying Agents, Transfer Agents or
Registrar May Own Securities..........................................................46
SECTION 6.05. Moneys to be Held in Trust.......................................................47
SECTION 6.06. Compensation and Expenses of Debenture Trustee...................................48
SECTION 6.07. Officers' Certificate as Evidence................................................49
SECTION 6.08. Conflicting Interest of Debenture Trustee........................................49
SECTION 6.09. Eligibility of Debenture Trustee.................................................49
SECTION 6.10. Resignation or Removal of Debenture Trustee......................................50
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SECTION 6.11. Acceptance by Successor Debenture Trustee........................................52
SECTION 6.12. Succession by Merger, etc........................................................53
SECTION 6.13. Limitation on Rights of Debenture Trustee as a Creditor..........................53
SECTION 6.14. Authenticating Agents............................................................54
ARTICLE VII..........................................................................................55
SECTION 7.01. Action by Securityholders........................................................55
SECTION 7.02. Proof of Execution by Securityholders............................................56
SECTION 7.03. Who Are Deemed Absolute Owners...................................................56
SECTION 7.04. Securities Owned by Corporation Deemed Not Outstanding...........................57
SECTION 7.05. Revocation of Consents; Future Holders Bound.....................................57
ARTICLE VIII.........................................................................................58
SECTION 8.01. Purposes of Meetings.............................................................58
SECTION 8.02. Call of Meetings by Debenture Trustee............................................58
SECTION 8.03. Call of Meetings by Corporation or Securityholders...............................59
SECTION 8.04. Qualifications for Voting........................................................59
SECTION 8.05. Regulations......................................................................59
SECTION 8.06. Voting...........................................................................60
ARTICLE IX...........................................................................................61
SECTION 9.01. Without Consent of Securityholders...............................................61
SECTION 9.02. With Consent of Securityholders..................................................63
SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures...........64
SECTION 9.04. Notation on Securities...........................................................64
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished to
Debenture Trustee.....................................................................64
ARTICLE X............................................................................................65
SECTION 10.01. Corporation May Consolidate, etc., on Certain Terms.............................65
SECTION 10.02. Successor Corporation to be Substituted for Corporation.........................65
SECTION 10.03. Opinion of Counsel to be Given Debenture Trustee................................66
ARTICLE XI...........................................................................................66
SECTION 11.01. Discharge of Indenture..........................................................66
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to be Held in Trust by
Debenture Trustee.....................................................................67
SECTION 11.03. Paying Agent to Repay Moneys Held...............................................68
SECTION 11.04. Return of Unclaimed Moneys......................................................68
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S. Government Obligations................68
ARTICLE XII..........................................................................................70
SECTION 12.01. Indenture and Securities Solely Corporate
Obligations...........................................................................70
ARTICLE XIII.........................................................................................70
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SECTION 13.01. Successors......................................................................70
SECTION 13.02. Official Acts by Successor Corporation..........................................71
SECTION 13.03. Surrender of Corporation Powers.................................................71
SECTION 13.04. Addresses for Notices, etc......................................................71
SECTION 13.05. Governing Law...................................................................71
SECTION 13.06. Evidence of Compliance with Conditions Precedent................................72
SECTION 13.07. Business Days...................................................................72
SECTION 13.08. Trust Indenture Act to Control..................................................72
SECTION 13.09. Table of Contents, Headings, etc................................................73
SECTION 13.10. Execution in Counterparts.......................................................73
SECTION 13.11. Separability....................................................................73
SECTION 13.12. Assignment......................................................................73
SECTION 13.13. Acknowledgement of Rights.......................................................73
ARTICLE XIV..........................................................................................74
SECTION 14.01. Special Event Prepayment........................................................74
SECTION 14.02. Optional Prepayment by Corporation..............................................74
SECTION 14.03. No Sinking Fund.................................................................76
SECTION 14.04. Notice of Prepayment; Selection of Securities...................................76
SECTION 14.05. Payment of Securities Called for Prepayment.....................................77
ARTICLE XV...........................................................................................78
SECTION 15.01. Agreement to Subordinate........................................................78
SECTION 15.02. Default on Senior Indebtedness..................................................78
SECTION 15.03. Liquidation; Dissolution; Bankruptcy............................................80
SECTION 15.04. Subrogation.....................................................................82
SECTION 15.05. Debenture Trustee to Effectuate Subordination...................................83
SECTION 15.06. Notice by the Corporation.......................................................84
SECTION 15.07. Rights of the Debenture Trustee; Holders of Senior Indebtedness.................85
SECTION 15.08. Subordination May Not Be Impaired...............................................86
ARTICLE XVI..........................................................................................86
SECTION 16.01. Extension of Interest Payment Period............................................86
SECTION 16.02. Notice of Extension.............................................................87
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THIS INDENTURE, dated as of April 1, 1997, between Eagle Financial
Corp., a Delaware corporation (hereinafter sometimes called the "Corporation"),
and Wilmington Trust Company, a Delaware banking corporation, as debenture
trustee (hereinafter sometimes called the "Debenture Trustee"),
W I T N E S S E T H :
In consideration of the premises, and the purchase of the Securities
by the holders thereof, the Corporation covenants and agrees with the Debenture
Trustee for the equal and proportionate benefit of the respective holders from
time to time of the Securities, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions
The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture shall have the respective meanings specified in this Section
1.01. All other terms used in this Indenture which are defined in the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), or which are by
reference therein defined in the Securities Act, shall (except as herein
otherwise expressly provided or unless the context otherwise requires) have the
meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of this Indenture as originally executed.
The following terms have the meanings given to them in the Declaration: (i)
Clearing Agency; (ii) Delaware Trustee; (iii) Property Trustee; (iv)
Administrative Trustees; (v) Series A Capital Securities; (vi) Series B Capital
Securities; (vii) Direct Action; and (viii) Distributions. All accounting terms
used herein and not expressly defined shall have the meanings assigned to such
terms in accordance with generally accepted accounting principles, and the term
"generally accepted accounting principles" means such accounting principles as
are generally accepted at the time of any computation. The words "herein",
"hereof" and "hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision. Headings are used for convenience of reference only and do not
affect interpretation. The singular includes the plural and vice versa.
" Additional Sums" shall have the meaning set forth in Section
2.06(c).
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"Adjusted Treasury Rate" means, with respect to any prepayment date
pursuant to Section 14.01, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue, assuming a price
for the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such prepayment date plus (i)
2.90% if such prepayment date occurs on or prior to April 1, 1998 and (ii) 2.38%
in all other cases.
"Affiliate" shall have the meaning given to that term in Rule 405 under
the Securities Act or any successor rule thereunder.
"Authenticating Agent" shall mean any agent or agents of the Debenture
Trustee which at the time shall be appointed and acting pursuant to Section
6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar federal or
state law for the relief of debtors.
"Board of Directors" shall mean either the Board of Directors of the
Corporation or any duly authorized committee of that board.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Corporation to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Debenture Trustee.
"Business Day" shall mean, with respect to any series of Securities, any
day other than a Saturday or a Sunday or a day on which banking institutions in
New York, New York, Wilmington, Delaware or Bristol, Connecticut are authorized
or required by law or executive order to close.
"Capital Securities" shall mean undivided beneficial interests in the
assets of the Trust which are designated as "Capital Securities" and rank pari
passu with the Common Securities issued by the Trust; provided, however, that if
an Event of Default has occurred and is continuing, no payments in respect of
Distributions on, or payments upon liquidation, prepayment or otherwise with
respect to, the Common Securities shall be made until the holders of the Capital
Securities shall be paid in full the Distributions and the liquidation,
prepayment and other payments to which they are entitled. References to "Capital
Securities" shall include collectively any Series A Capital Securities and
Series B Capital Securities.
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"Capital Securities Guarantee" shall mean any guarantee that the
Corporation may enter into with Wilmington Trust Company or other Persons that
operates directly or indirectly for the benefit of holders of Capital Securities
and shall include a Series A Capital Securities Guarantee and a Series B Capital
Securities Guarantee with respect to the Series A Capital Securities and the
Series B Capital Securities, respectively.
"Commission" shall mean 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" shall mean undivided beneficial interests in the
assets of the Trust which are designated as "Common Securities" and rank pari
passu with Capital Securities issued by the Trust; provided, however, that if an
Event of Default has occurred and is continuing, no payments in respect of
Distributions on, or payments upon liquidation, prepayment or otherwise with
respect to, the Common Securities shall be made until the holders of the Capital
Securities shall be paid in full the Distributions and the liquidation,
prepayment and other payments to which they are then entitled.
"Common Securities Guarantee" shall mean any guarantee that the
Corporation may enter into with any Person or Persons that operates directly or
indirectly for the benefit of holders of Common Securities.
"Common Stock" shall mean the Common Stock, par value $1.00 per share, of
the Corporation or any other class of stock resulting from changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the remaining
term of the Securities to be prepaid that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Securities.
"Comparable Treasury Price" means, with respect to any prepayment date
pursuant to Section 14.01, (i) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) on the third Business Day preceding such prepayment date, as
set forth
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in the daily statistical release (or any successor release) published tby the
Federal Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations
for U.S. Government Securities" or (ii) if such release (or any successor
release) is not published or does not contain such prices on such Business Day,
(A) the average of the Reference Treasury Dealer Quotations for such prepayment
date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (B) if the Debenture Trustee obtains fewer than three such
Reference Treasury Dealer Quotations, the average of all such Quotations.
"Corporation" shall mean Eagle Financial Corp., a Delaware corporation,
and, subject to the provisions of Article X, shall include its successors and
assigns.
"Corporation Request" or "Corporation Order" shall mean a written request
or order signed in the name of the Corporation by the Chairman, the Chief
Executive Officer, the President, a Vice Chairman, a Vice President, the
Comptroller, the Secretary or an Assistant Secretary of the Corporation, and
delivered to the Debenture Trustee.
"Compounded Interest" shall have the meaning set forth in Section 16.01.
"Custodian" shall mean any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Debenture Trustee" shall mean the Person identified as "Debenture
Trustee" in the first paragraph hereof, and, subject to the provisions of
Article VI hereof, shall also include its successors and assigns as Debenture
Trustee hereunder. The term "Debenture Trustee" as used with respect to a
particular series of the Securities shall mean the trustee with respect to that
series.
"Declaration" means the Amended and Restated Declaration of Trust of the
Trust, dated as of April 1, 1997, as amended from time to time.
"Default" means any event, act or condition that with notice or lapse of
time, or both, would constitute an Event of Default.
"Defaulted Interest" shall have the same meaning set forth in Section
2.11.
"Deferred Interest" shall have the meaning set forth in Section 16.01.
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"Definitive Securities" shall mean those securities issued in fully
registered certificated form not otherwise in global form.
"Depositary" shall mean, with respect to the Securities, for which the
Corporation shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, New York, New York, another clearing
agency, or any successor registered as a clearing agency under the Exchange Act
or other applicable statute or regulation, which, in each case, shall be
designated by the Corporation pursuant to Section 2.05(d).
"Dissolution Event" means the liquidation of the Trust pursuant to the
Declaration, and the distribution of the Securities held by the Property Trustee
to the holders of the Trust Securities issued by the Trust pro rata in
accordance with the Declaration.
"Eagle Financial Capital Trust" or the "Trust" shall mean Eagle Financial
Capital Trust I, a Delaware business trust created for the purpose of issuing
its undivided beneficial interests in connection with the issuance of Securities
under this Indenture.
"Event of Default" shall mean any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of the notice, if
any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means the offer that may be made pursuant to the
Registration Rights Agreement (i) by the Corporation to exchange Series B
Securities for Series A Securities and to exchange a Series B Capital Securities
Guarantee for a Series A Capital Securities Guarantee and (ii) by the Trust to
exchange Series B Capital Securities for Series A Capital Securities.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 16.01.
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"Federal Reserve" shall mean the Board of Governors of the Federal Reserve
System.
"Global Security" means, with respect to the Securities, a Security
executed by the Corporation and delivered by the Debenture Trustee to the
Depositary or pursuant to the Depositary's instruction, all in accordance with
the Indenture, which shall be registered in the name of the Depositary or its
nominee.
"Indebtedness" shall mean (i) every obligation of the Corporation for
money borrowed; (ii) every obligation of the Corporation evidenced by bonds,
debentures, notes or other similar instruments, including obligations incurred
in connection with the acquisition of property, assets or businesses; (iii)
every reimbursement obligation of the Corporation with respect to letters of
credit, banker's acceptances or similar facilities issued for the account of the
Corporation; (iv) every obligation of the Corporation issued or assumed as the
deferred purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business); (v)
every capital lease obligation of the Corporation; (vi) all indebtedness of the
Corporation whether incurred on or prior to the date of the Indenture or
thereafter incurred, for claims in respect of derivative products, including
interest rate, foreign exchange rate and commodity forward contracts, options
and swaps and similar arrangements; and (vii) every obligation of the type
referred to in clauses (i) through (vi) of another Person and all dividends of
another Person the payment of which, in either case, the Corporation has
guaranteed or is responsible or liable for, directly or indirectly, as obligor
or otherwise.
"Indebtedness Ranking on a Parity with the Securities" shall mean (i)
Indebtedness, whether outstanding on the date of execution of this Indenture or
hereafter created, assumed or incurred, to the extent such Indebtedness by its
terms ranks equally with and not prior to the Securities in the right of payment
upon the happening of the dissolution or winding-up or liquidation or
reorganization of the Corporation, and (ii) all other debt securities, and
guarantees in respect of those debt securities, issued to any trust other than
the Trust, or a trustee of such trust, partnership or other entity affiliated
with the Corporation that is a financing vehicle of the Corporation (a
"financing entity") in connection with the issuance by such financing entity of
equity securities or other securities guaranteed by the Corporation pursuant to
an instrument that ranks pari passu with or junior in right of payment to the
Capital Securities Guarantee. The securing of any Indebtedness, otherwise
constituting Indebtedness Ranking on a
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Parity with the Securities, shall not be deemed to prevent such Indebtedness
from constituting Indebtedness Ranking on a Parity with the Securities.
"Indebtedness Ranking Junior to the Securities" shall mean any
Indebtedness, whether outstanding on the date of execution of this Indenture or
hereafter created, assumed or incurred, to the extent such Indebtedness by its
terms ranks junior to and not equally with or prior to the Securities (and any
other Indebtedness Ranking on a Parity with the Securities) in right of payment
upon the happening of the dissolution or winding-up or liquidation or
reorganization of the Corporation. The securing of any Indebtedness, otherwise
constituting Indebtedness Ranking Junior to the Securities, shall not be deemed
to prevent such Indebtedness from constituting Indebtedness Ranking Junior to
the Securities.
"Indenture" shall mean this instrument as originally executed or, if
amended as herein provided, as so amended.
"Initial Optional Prepayment Date" means April 1, 2007.
"Interest Payment Date" shall have the meaning set forth in Section
2.06(a).
"Like Amount" means (i) with respect to a redemption of the Trust
Securities, Trust Securities having a liquidation amount equal to the principal
amount of Securities to be paid in accordance with their terms and (ii) with
respect to a distribution of Securities upon the liquidation of the Trust,
Securities having a principal amount equal to the liquidation amount of the
Trust Securities of the holder to whom Securities are distributed.
"Liquidated Damages" shall have the meaning set forth in the Registration
Rights Agreement.
"Make Whole Amount" shall mean an amount equal to the greater of (x) 100%
of the principal amount of Securities to be prepaid or (y) the sum, as
determined by a Quotation Agent, of the present values of the remaining
scheduled payments of principal and interest on such Securities, discounted to
the prepayment date on a semi-annual basis (assuming a 360-day year consisting
of 12 30-day months) at the Adjusted Treasury Rate, plus, in the case of each of
clauses (x) and (y), accrued and unpaid interest thereon, including Compounded
Interest and Additional Sums, if any, to the date of such prepayment.
"Maturity Date" shall mean April 1, 2027.
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"Mortgage" shall mean and include any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.
"Non Book-Entry Capital Securities" shall have the meaning set forth in
Section 2.05(a)(ii).
"Officers" shall mean any of the Chairman, the Chief Executive Officer,
the President, a Vice President, the Chief Financial Officer, the Secretary or
an Assistant Secretary of the Corporation.
"Officers' Certificate" shall mean a certificate signed by two Officers
and delivered to the Debenture Trustee.
"Opinion of Counsel" shall mean a written opinion of counsel, who may be
an employee of the Corporation, and who shall be reasonably acceptable to the
Debenture Trustee.
"Optional Prepayment Price" shall have the meaning set forth in Section
14.02(a).
"Other Debentures" means all junior subordinated debentures issued by the
Corporation from time to time and sold to trusts to be established by the
Corporation (if any), in each case similar to the Trust.
"Other Guarantees" means all guarantees to be issued by the Corporation
with respect to capital securities (if any) and issued to other trusts to be
established by the Corporation (if any), in each case similar to the Trust.
The term "outstanding" when used with reference to the Securities, shall
mean, subject to the provisions of Section 7.04, as of any particular time, all
Securities authenticated and delivered by the Debenture Trustee or the
Authenticating Agent under this Indenture, except
(a) Securities theretofore cancelled by the Debenture Trustee or the
Authenticating Agent or delivered to the Debenture Trustee for
cancellation;
(b) Securities, or portions thereof, for the payment or prepayment of
which moneys in the necessary amount shall have been deposited in
trust with the Debenture Trustee or with any paying agent (other than
the Corporation) or shall have been set aside and segregated in trust
by the Corporation (if the Corporation shall act as its own paying
agent); provided that, if such Securities, or portions thereof, are
to be prepaid prior to maturity
-8-
thereof, notice of such prepayment shall have been given as set forth
in Article XIV or provision satisfactory to the Debenture Trustee
shall have been made for giving such notice; and
(c) Securities in lieu of or in substitution for which other Securities
shall have been authenticated and delivered pursuant to the terms of
Section 2.08 unless proof satisfactory to the Corporation and the
Debenture Trustee is presented that any such Securities are held by
bona fide holders in due course.
"Person" shall mean any individual, corporation, estate, partnership,
joint venture, association, joint-stock company, limited liability company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt and as that evidenced by
such particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.08 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Prepayment Price" means the Special Event Prepayment Price or the
Optional Prepayment Price, as the context requires.
"Principal Office of the Debenture Trustee", or other similar term, shall
mean the office of the Debenture Trustee, at which at any particular time its
corporate trust business shall be administered.
"Property Trustee" shall have the same meaning as set forth in the
Declaration.
"Purchase Agreement" shall mean the Purchase Agreement dated March 26,
1997 among the Corporation, the Trust and the initial purchaser named therein.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Corporation.
"Reference Treasury Dealer" means a nationally recognized U.S. Government
securities dealer in New York, New York selected by the Corporation.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any prepayment date
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pursuant to Section 14.01, the average, as determined by the Debenture Trustee,
of the bid and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to the Debenture
Trustee by such Reference Treasury Dealer at 5:00 p.m. New York, New York time,
on the third Business Day preceding such prepayment date.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of April 1, 1997, by and among the Corporation, the Trust and the
initial purchaser named therein, as such agreement may be amended, modified or
supplemented from time to time.
"Regulatory Capital Event" means that the Corporation shall have received
an opinion of bank regulatory counsel experienced in such matters to the effect
that, as a result of (a) any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the United
States or any rules, guidelines or policies of an applicable regulatory agency
or (b) any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after the date of
original issuance of the Securities, the Capital Securities do not constitute,
or within 90 days of the date thereof, would not constitute, Tier 1 Capital (or
its then equivalent if the Corporation were subject to such Capital
Requirement); provided, however, that the distribution of the Securities in
connection with the liquidation of the Trust by the Corporation, as sponsor,
shall not in and of itself constitute a Regulatory Capital Event unless such
liquidation shall have occurred in connection with a Tax Event.
"Responsible Officer" shall mean any officer of the Debenture Trustee's
Corporate Trust Administration department with direct responsibility for the
administration of the Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Restricted Security" shall mean Securities that bear or are required to
bear the legends relating to transfer restrictions under the Securities Act set
forth in Exhibit A hereto.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the Commission.
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"Securities" means, collectively, the Series A Securities and the Series B
Securities.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Securityholder", "holder of Securities", or other similar terms, shall
mean any Person in whose name at the time a particular Security is registered on
the register kept by the Corporation or the Debenture Trustee for that purpose
in accordance with the terms hereof.
"Security Register" shall mean (i) prior to a Dissolution Event, the list
of holders provided to the Debenture Trustee pursuant to Section 4.01, and (ii)
following a Dissolution Event, any security register maintained by a security
registrar for the Securities appointed by the Corporation following the
execution of a supplemental indenture providing for transfer procedures as
provided for in Section 2.07(a).
"Senior Indebtedness" shall mean all Indebtedness, whether outstanding on
the date of execution of this Indenture or hereafter created, assumed or
incurred, except Indebtedness Ranking on a Parity with the Securities or
Indebtedness Ranking Junior to the Securities, and any deferrals, renewals or
extensions of such Senior Indebtedness.
"Series A Securities" means the Corporation's Series A 10% Junior
Subordinated Deferrable Interest Debentures due April 1, 2027, as authenticated
and issued under this Indenture.
"Series B Securities" means the Corporation's Series B 10% Junior
Subordinated Deferrable Interest Debentures due April 1, 2027, as authenticated
and issued under this Indenture.
"Special Event" means either a Regulatory Capital Event or a Tax Event.
"Special Event Prepayment Price" shall mean, with respect to any
prepayment of the Securities following a Special Event, an amount in cash equal
to the Make Whole Amount.
"Subsidiary" shall mean with respect to any Person, (i) any corporation at
least a majority of the outstanding voting stock of which is 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, (ii) 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 (iii) any
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limited partnership of which such Person or any of its Subsidiaries is a general
partner. For the purposes of this definition, "voting stock" 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.
"Tax Event" shall mean the receipt by the Trust and the Corporation 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 April 1, 1997, there is
more than an insubstantial risk that (i) the Trust is, or will be within 90 days
of the date of such opinion, subject to United States federal income tax with
respect to income received or accrued on the Securities, (ii) interest payable
by the Corporation on the Securities is not, or within 90 days of the date of
such opinion will not be, deductible by the Corporation, in whole or in part,
for United States federal income tax purposes or (iii) the Trust is, or will be
within 90 days of the date of such opinion, subject to more than a de minimis
amount of other taxes, duties or other governmental charges.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939 as in
force at the date of execution of this Indenture, except as provided in Section
9.03; provided, however, that, in the event the Trust Indenture Act is amended
after such date, "Trust Indenture Act" shall mean, to the extent required by any
such amendment, the Trust Indenture Act as so amended.
"Trust Securities" shall mean the Capital Securities and the Common
Securities, collectively.
"U.S. Government Obligations" shall mean securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) 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, which, in either case under
clauses (i) or (ii) are not callable or prepayable at the option of the issuer
thereof, and shall also
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include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government Obligation held by such custodian
for the account of the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation evidenced
by such depository receipt.
SECTION 1.02. Business Day Certificate.
On the date of execution and delivery of this Indenture (with respect to
the remainder of calendar year 1997) and thereafter, within 15 days prior to the
end of each calendar year while this Indenture remains in effect (with respect
to the succeeding calendar years), the Corporation shall deliver to the
Debenture Trustee an Officers' Certificate specifying the days on which banking
institutions or trust companies in Bristol, Connecticut are authorized or
obligated by law or executive order to be closed.
ARTICLE II
SECURITIES
SECTION 2.01 Forms Generally.
The Securities and the Debenture Trustee's certificate of authentication
shall be substantially in the form of Exhibit A, the terms of which are
incorporated in and made a part of this Indenture. The Securities may have
notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Corporation is subject or usage. Each Security shall be
dated the date of its authentication. The Securities shall be issued in
denominations of $1,000 and integral multiples thereof.
SECTION 2.02 Execution and Authentication.
Two Officers shall sign the Securities for the Corporation by manual or
facsimile signature. If an Officer whose signature is on a Security no longer
holds that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual signature
of the Debenture Trustee. The signature of the Debenture Trustee shall be
conclusive evidence that the Security has been authenticated under this
Indenture. The form
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of Debenture Trustee's certificate of authentication to be borne by the
Securities shall be substantially as set forth in Exhibit A hereto.
The Debenture Trustee shall, upon a Corporation Order, authenticate for
original issue up to, and the aggregate principal amount of Securities
outstanding at any time may not exceed, $51,547,000 aggregate principal amount
of the Securities, except as provided in Sections 2.07, 2.08, 2.09 and 14.05.
The series of Securities to be initially issued hereunder shall be the Series A
Securities.
SECTION 2.03. Form and Payment
Except as provided in Section 2.05, the Securities shall be issued in
fully registered certificated form without interest coupons. Principal of,
premium, if any, and interest on the Securities issued in certificated form will
be payable, the transfer of such Securities will be registrable and such
Securities will be exchangeable for Securities bearing identical terms and
provisions at the office or agency of the Corporation maintained for such
purpose under Section 3.02; provided, however, that payment of interest with
respect to Securities (other than a Global Security) may be made at the option
of the Corporation (i) by check mailed to the holder at such address as shall
appear in the Security Register or (ii) by transfer to an account maintained by
the Person entitled thereto, provided that proper transfer instructions have
been received in writing by the relevant record date. Notwithstanding the
foregoing, so long as the holder of any Securities is the Property Trustee, the
payment of the principal of, premium, if any, and interest (including Compounded
Interest and Additional Sums, if any) and Liquidated Damages, if any, on such
Securities 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. Legends.
(a) Except as permitted by subsection (b) of this Section 2.04 or as
otherwise determined by the Corporation in accordance with applicable law, each
Security shall bear the applicable legends relating to restrictions on transfer
pursuant to the Securities Act and any other applicable securities laws in
substantially the form set forth on Exhibit A hereto.
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(b) In the event of an Exchange Offer, the Corporation shall issue and the
Debenture Trustee, upon Corporation Order, shall authenticate Series B
Securities in exchange for Series A Securities accepted for exchange in the
Exchange Offer, which Series B Securities shall not bear the legends required by
subsection (a) above, in each case unless the holder of such Series A Securities
is either (A) a broker-dealer who purchased such Series A Securities directly
from the Corporation for resale pursuant to Rule 144A or any other available
exemption under the Securities Act, (B) a Person participating in the
distribution of the Series A Securities or (C) a Person who is an Affiliate of
the Corporation.
SECTION 2.05. Global Security
(a) In connection with a Dissolution Event,
(i) if any Capital Securities are held in book-entry form, a Like
Amount of Definitive Securities shall be presented to the Debenture Trustee (if
an arrangement with the Depositary has been maintained) by the Property Trustee
in exchange for one or more Global Securities (as may be required pursuant to
Section 2.07), to be registered in the name of the Depositary, or its nominee,
and delivered by the Debenture Trustee to the Depositary for crediting to the
accounts of its participants pursuant to the instructions of the Administrative
Trustees; the Corporation upon any such presentation shall execute one or more
Global Securities in such aggregate principal amount and deliver the same to the
Debenture Trustee for authentication and delivery in accordance with this
Indenture; and payments on the Securities issued as a Global Security will be
made to the Depositary; and
(ii) if any Capital Securities are held in certificated form, the
related Definitive Securities may be presented to the Debenture Trustee by the
Property Trustee and any Capital Security certificate which represents Capital
Securities other than Capital Securities in book-entry form ("Non Book-Entry
Capital Securities") will be deemed to represent beneficial interests in
Securities presented to the Debenture Trustee by the Property Trustee having an
aggregate principal amount equal to the aggregate liquidation amount of the Non
Book-Entry Capital Securities until such Capital Security certificates are
presented to the security registrar for the Securities for transfer or
reissuance, at which time such Capital Security certificates will be cancelled
and a Security, registered in the name of the holder of the Capital Security
certificate or the transferee of the holder of such Capital Security
certificate, as the case may be, with an aggregate principal amount equal to the
aggregate liquidation amount of the
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Capital Security certificate cancelled, will be executed by the Corporation and
delivered to the Debenture Trustee for authentication and delivery in accordance
with this Indenture. Upon the issuance of such Securities, Securities with an
equivalent aggregate principal amount that were presented by the Property
Trustee to the Debenture Trustee will be cancelled.
(b) The Global Securities shall represent the aggregate amount of
outstanding Securities from time to time endorsed thereon; provided, that the
aggregate amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges and
prepayments. Any endorsement of a Global Security to reflect the amount of any
increase or decrease in the amount of outstanding Securities represented thereby
shall be made by the Debenture Trustee, in accordance with instructions given by
the Corporation as required by this Section 2.05.
(c) The Global Securities may be transferred, in whole but not in part,
only to the Depositary, another nominee of the Depositary, or to a successor
Depositary selected or approved by the Corporation or to a nominee of such
successor Depositary.
(d) If at any time the Depositary notifies the Corporation that it is
unwilling or unable to continue as Depositary or the Depositary has ceased to be
a clearing agency registered under the Exchange Act, and a successor Depositary
is not appointed by the Corporation within 90 days after the Corporation
receives such notice or becomes aware of such condition, as the case may be, the
Corporation will execute, and the Debenture Trustee, upon receipt of a
Corporation Order, will authenticate and make available for delivery the
Definitive Securities, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security, in
exchange for such Global Security. If there is an Event of Default, the
Depositary shall have the right to exchange the Global Securities for Definitive
Securities. In addition, the Corporation may at any time determine that the
Securities shall no longer be represented by a Global Security. In the event of
such an Event of Default or such a determination, the Corporation shall execute,
and subject to Section 2.07, the Debenture Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Corporation and a Corporation
Order, will authenticate and make available for delivery the Definitive
Securities, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security in exchange for such Global
Security. Upon the exchange of the Global Security for such Definitive
Securities, in authorized denominations, the Global Security shall be cancelled
by the Debenture Trustee. Such
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Definitive Securities issued in exchange for the Global Security 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 Debenture Trustee. The Debenture Trustee shall deliver such
Definitive Securities to the Depositary for delivery to the Persons in whose
names such Definitive Securities are so registered.
SECTION 2.06 Interest
(a) Each Security will bear interest at the rate of 10% per annum (the
"Coupon Rate") from the most recent date to which interest has been paid or duly
provided for or, if no interest has been paid or duly provided for, from April
1, 1997, until the principal thereof becomes due and payable, and at the Coupon
Rate on any overdue principal (and premium, if any) and (to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest, compounded semi-annually, payable (subject to the
provisions of Article XVI) semi-annually in arrears on April 1 and October 1 of
each year (each, an "Interest Payment Date") commencing on October 1, 1997, to
the Person in whose name such Security or any predecessor Security is
registered, at the close of business on the regular record date for such
interest installment, which shall be the fifteenth day of the month immediately
preceding the month in which the relevant Interest Payment Date falls.
(b) Interest will be computed on the basis of a 360-day year consisting of
twelve 30-day months and, for any period less than a full calendar month, the
number of days elapsed in such month. In the event that any Interest Payment
Date falls on a day that 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 next succeeding Business Day falls in the next succeeding calendar
year, then 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) During such time as the Property Trustee is the holder of any
Securities, the Corporation shall pay any additional amounts on the Securities
as may be necessary in order that the amount of Distributions then due and
payable by the Trust on the outstanding Trust Securities shall not be reduced as
a result of any additional taxes, duties and other governmental charges to which
the Trust has become subject as a result of a Tax Event ("Additional Sums").
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SECTION 2.07. Transfer and Exchange
(a) Transfer Restrictions. (i) The Series A Securities, and those Series B
Securities with respect to which any Person described in Section 2.04(b)(A), (B)
or (C) is the beneficial owner, may not be transferred except in compliance with
the legend contained in Exhibit A unless otherwise determined by the Corporation
in accordance with applicable law. Upon any distribution of the Securities
following a Dissolution Event, the Corporation and the Debenture Trustee shall
enter into a supplemental indenture pursuant to Section 9.01 to provide for the
transfer restrictions and procedures with respect to the Securities
substantially similar to those contained in the Declaration to the extent
applicable in the circumstances existing at such time.
(ii) The Securities will be issued and may be transferred only in
blocks having an aggregate principal amount of not less than $100,000 and in
multiples of $1,000 in excess thereof. Any such transfer of the Securities in a
block having an aggregate principal amount of less than $100,000 shall be deemed
to be voided and of no legal effect whatsoever. Any such transferee shall be
deemed not to be a holder of such Securities for any purpose, including, but not
limited to the receipt of payments on such Securities, and such transferee shall
be deemed to have no interest whatsoever in such Securities.
(b) General Provisions Relating to Transfers and Exchanges. To permit
registrations of transfers and exchanges, the Corporation shall execute and the
Debenture Trustee shall authenticate Definitive Securities and Global Securities
at the request of the security registrar for the Securities. All Definitive
Securities and Global Securities issued upon any registration of transfer or
exchange of Definitive Securities or Global Securities shall be the valid
obligations of the Corporation, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Definitive Securities or Global
Securities surrendered upon such registration of transfer or exchange.
No service charge shall be made to a holder for any registration of
transfer or exchange, but the Corporation may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge payable in
connection therewith.
The Corporation shall not be required to (i) issue, register the transfer
of or exchange Securities during a period beginning at the opening of business
15 days before the day of mailing of a notice of prepayment or any notice of
selection of Securities for prepayment under Article XIV hereof and ending at
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the close of business on the day of such mailing; or (ii) register the transfer
of or exchange any Security so selected for prepayment in whole or in part,
except the unredeemed portion of any Security being prepaid in part.
Prior to due presentment for the registration of a transfer of any
Security, the Debenture Trustee, the Corporation and any agent of the Debenture
Trustee or the Corporation may deem and treat the Person in whose name any
Security is registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and premium, if any, and interest on such
Securities, and none of the Debenture Trustee, the Corporation and any agents of
the Debenture Trustee or the Corporation shall be affected by notice to the
contrary.
(c) Exchange of Series A Securities for Series B Securities. The Series A
Securities may be exchanged for Series B Securities pursuant to the terms of the
Exchange Offer. The Debenture Trustee shall make the exchange as follows:
The Corporation shall present the Debenture Trustee with an Officers'
Certificate certifying the following:
(A) upon issuance of the Series B Securities, the transactions
contemplated by the Exchange Offer have been consummated; and
(B) the principal amount of Series A Securities properly tendered in the
Exchange Offer that are represented by a Global Security, the
principal amount of Series A Securities properly tendered in the
Exchange Offer that are represented by Definitive Securities, the name
of each holder of such Definitive Securities, the principal amount
properly tendered in the Exchange Offer by each such holder and the
name and address to which Definitive Securities for Series B
Securities shall be registered and sent for each such holder.
The Debenture Trustee, upon receipt of (i) such Officers' Certificate,
(ii) an Opinion of Counsel (x) to the effect that the Series B Securities have
been registered under Section 5 of the Securities Act and the Indenture has been
qualified under the Trust Indenture Act and (y) with respect to the matters set
forth in Section 3(p) of the Registration Rights Agreement and (iii) a
Corporation Order, shall authenticate (A) a Global Security representing Series
B Securities in aggregate principal amount equal to the aggregate principal
amount of Series A Securities represented by a Global Security indicated in such
Officers' Certificate as having been properly tendered and
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(B) Definitive Securities representing Series B Securities registered in the
names of, and in the principal amounts indicated in, such Officers' Certificate.
If the principal amount of the Global Security for the Series B Securities
is less than the principal amount of the Global Security for the Series A
Securities, the Debenture Trustee shall make an endorsement on such Global
Security for Series A Securities indicating a reduction in the principal amount
represented thereby.
The Debenture Trustee shall deliver such Definitive Securities
representing Series B Securities to the holders thereof as indicated in such
Officers' Certificate.
SECTION 2.08. Replacement Securities
If any mutilated Security is surrendered to the Debenture Trustee, or the
Corporation and the Debenture Trustee receive evidence to their satisfaction of
the destruction, loss or theft of any Security, the Corporation shall issue and
the Debenture Trustee shall authenticate a replacement Security if the Debenture
Trustee's requirements for replacements of Securities are met. An indemnity bond
must be supplied by the holder that is sufficient in the judgment of the
Debenture Trustee and the Corporation to protect the Corporation, the Debenture
Trustee, any agent thereof or any authenticating agent from any loss that any of
them may suffer if a Security is replaced. The Corporation or the Debenture
Trustee may charge for its expenses in replacing a Security.
Every replacement Security is an obligation of the Corporation and shall
be entitled to all of the benefits of this Indenture equally and proportionately
with all other Securities duly issued hereunder.
SECTION 2.09. Temporary Securities.
Pending the preparation of Definitive Securities, the Corporation may
execute, and upon Corporation Order the Debenture Trustee shall authenticate and
make available for delivery, temporary Securities that are printed,
lithographed, typewritten, mimeographed or otherwise reproduced, in any
authorized denomination, substantially of the tenor of the Definitive Securities
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities.
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If temporary Securities are issued, the Corporation shall cause Definitive
Securities to be prepared without unreasonable delay. The Definitive Securities
shall be printed, lithographed or engraved, or provided by any combination
thereof, or in any other manner permitted by the rules and regulations of any
applicable securities exchange, all as determined by the officers executing such
Definitive Securities. After the preparation of Definitive Securities, the
temporary Securities shall be exchangeable for Definitive Securities upon
surrender of the temporary Securities at the office or agency maintained by the
Corporation for such purpose pursuant to Section 3.02 hereof, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Corporation shall execute, and the Debenture Trustee shall
authenticate and make available for delivery, in exchange therefor the same
aggregate principal amount of Definitive Securities of authorized denominations.
Until so exchanged, the temporary Securities shall in all respects be entitled
to the same benefits under this Indenture as Definitive Securities.
SECTION 2.10. Cancellation
The Corporation at any time may deliver Securities to the Debenture
Trustee for cancellation. The Debenture Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment,
replacement or cancellation and shall retain or destroy cancelled Securities in
accordance with its normal practices (subject to the record retention
requirement of the Exchange Act) unless the Corporation directs them to be
returned to it. The Corporation may not issue new Securities to replace
Securities that have been prepaid or paid or that have been delivered to the
Debenture Trustee for cancellation.
SECTION 2.11. Defaulted Interest
Any interest on any Security that is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the holder on the relevant
regular record date by virtue of having been such holder; and such Defaulted
Interest shall be paid by the Corporation, at its election, as provided in
clause (a) or clause (b) below:
(a) The Corporation may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on a special
record date for the payment of such Defaulted Interest, which shall be fixed in
the following manner: the Corporation shall notify
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the Debenture Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each such Security and the date of the proposed payment, and at the
same time the Corporation shall deposit with the Debenture Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Debenture
Trustee for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Debenture
Trustee shall fix a special record date for the payment of such Defaulted
Interest which shall not be more than 15 nor less than 10 days prior to the date
of the proposed payment and not less than 10 days after the receipt by the
Debenture Trustee of the notice of the proposed payment. The Debenture Trustee
shall promptly notify the Corporation of such special record date and, in the
name and at the expense of the Corporation, shall cause notice of the proposed
payment of such Defaulted Interest and the special record date therefor to be
mailed, first class postage prepaid, to each Securityholder at his or her
address as it appears in the Security Register, not less than 10 days prior to
such special record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names such
Securities (or their respective Predecessor Securities) are registered on such
special record date and shall be no longer payable pursuant to the following
clause (b).
(b) The Corporation may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Corporation to the Debenture Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the Debenture
Trustee.
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SECTION 2.12. CUSIP Numbers
The Corporation in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Debenture Trustee shall use "CUSIP" numbers
in notices of prepayment as a convenience to Securityholders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice
of a prepayment and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such prepayment shall not be affected
by any defect in or omission of such numbers. The Corporation will promptly
notify the Debenture Trustee of any change in the CUSIP numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE CORPORATION
SECTION 3.01. Payment of Principal, Premium and Interest
The Corporation covenants and agrees for the benefit of the holders of the
Securities that it will duly and punctually pay or cause to be paid the
principal of and premium, if any, and interest on the Securities at the place,
at the respective times and in the manner provided herein. Except as provided in
Section 2.03, each installment of interest on the Securities may be paid by
mailing checks for such interest payable to the order of the holder of Security
entitled thereto as they appear in the Security Register. The Corporation
further covenants to pay any and all amounts, including, without limitation,
Additional Sums, as may be required pursuant to Section 2.06(c), Liquidated
Damages, if any, on the dates and in the manner required under the Registration
Rights Agreement and Compounded Interest, as may be required pursuant to Section
16.01.
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SECTION 3.02. Offices for Notices and Payments, etc.
So long as any of the Securities remain outstanding, the Corporation will
maintain in New York, New York or Wilmington, Delaware, an office or agency
where the Securities may be presented for payment, an office or agency where the
Securities may be presented for registration of transfer and for exchange as in
this Indenture provided and an office or agency where notices and demands to or
upon the Corporation in respect of the Securities or of this Indenture may be
served. The Corporation will give to the Debenture Trustee written notice of the
location of any such office or agency and of any change of location thereof.
Until otherwise designated from time to time by the Corporation in a notice to
the Debenture Trustee, any such office or agency for all of the above purposes
shall be the Principal Office of the Debenture Trustee. In case the Corporation
shall fail to maintain any such office or agency in New York, New York or
Wilmington, Delaware, or shall fail to give such notice of the location or of
any change in the location thereof, presentations and demands may be made and
notices may be served at the Principal Office of the Debenture Trustee.
In addition to any such office or agency, the Corporation may from time to
time designate one or more offices or agencies outside New York, New York, where
the Securities may be presented for payment, registration of transfer and for
exchange in the manner provided in this Indenture, and the Corporation may from
time to time rescind such designation, as the Corporation may deem desirable or
expedient; provided, however, that no such designation or rescission shall in
any manner relieve the Corporation of its obligation to maintain any such office
or agency in New York, New York, for the purposes above mentioned. The
Corporation will give to the Debenture Trustee prompt written notice of any such
designation or rescission thereof.
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SECTION 3.03. Appointments to Fill Vacancies in Debenture Trustee's Office
The Corporation, whenever necessary to avoid or fill a vacancy in the
office of Debenture Trustee, will appoint, in the manner provided in Section
6.10, a Debenture Trustee, so that there shall at all times be a Debenture
Trustee hereunder.
SECTION 3.04. Provision as to Paying Agent
(a) If the Corporation shall appoint a paying agent other than the
Debenture Trustee with respect to the Securities, it will cause such paying
agent to execute and deliver to the Debenture Trustee an instrument in which
such agent shall agree with the Debenture Trustee, subject to the provision of
this Section 3.04,
(1) that it will hold all sums held by it as such agent for the payment of
the principal of and premium, if any, or interest on the Securities
(whether such sums have been paid to it by the Corporation or by any
other obligor on the Securities) in trust for the benefit of the
holders of the Securities; and
(2) that it will give the Debenture Trustee notice of any failure by the
Corporation (or by any other obligor on the Securities) to make any
payment of the principal of and premium or interest (including
Additional Sums and Compounded Interest, if any) and Liquidated
Damages, if any, on the Securities when the same shall be due and
payable.
(b) If the Corporation shall act as its own paying agent, it will, on or
before each due date of the principal of and premium, if any, or interest on the
Securities, set aside, segregate and hold in trust for the benefit of the
holders of the Securities a sum sufficient to pay such principal, premium or
interest so becoming due and will notify the Debenture Trustee of any failure to
take such action and of any failure by the Corporation (or by any other obligor
under the Securities) to make any payment of the principal of and premium, if
any, or interest on the Securities when the same shall become due and payable.
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(c) Anything in this Section 3.04 to the contrary notwithstanding, the
Corporation may, at any time, for the purpose of obtaining a satisfaction and
discharge with respect to the Securities hereunder, or for any other reason, pay
or cause to be paid to the Debenture Trustee all sums held in trust for such
Securities by the Debenture Trustee or any paying agent hereunder, as required
by this Section 3.04, such sums to be held by the Debenture Trustee upon the
trusts herein contained.
(d) Anything in this Section 3.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 3.04 is subject to
Sections 11.03 and 11.04.
SECTION 3.05. Certificate to Debenture Trustee
The Corporation will deliver to the Debenture Trustee on or before 120
days after the end of each fiscal year in each year, commencing with the first
fiscal year ending after the date hereof, so long as Securities are outstanding
hereunder, an Officers' Certificate, one of the signers of which shall be the
principal executive, principal financial or principal accounting officer of the
Corporation, stating that in the course of the performance by the signers of
their duties as officers of the Corporation they would normally have knowledge
of any default by the Corporation in the performance of any covenants contained
herein, stating whether or not they have knowledge of any such default and, if
so, specifying each such default of which the signers have knowledge and the
nature thereof. For purposes of this Section 3.05, default shall be determined
without regard to any period of grace or requirement of notice provided for
herein.
SECTION 3.06. Compliance with Consolidation Provisions
The Corporation will not, while any of the Securities 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 Person unless the provisions of
Article X hereof are complied with.
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SECTION 3.07. Limitation on Dividends
The Corporation will not (i) declare or pay any dividends or distributions
on, or prepay, purchase, acquire, or make a liquidation payment with respect to,
any of the Corporation's capital stock, (ii) make any payment of principal, of
premium, if any, or interest on or repay, repurchase or redeem any debt
securities of the Corporation (including Other Debentures) that rank pari passu
with or junior in right of payment to the Securities or (iii) make any guarantee
payments with respect to any guarantee by the Corporation of the debt securities
of any Subsidiary of the Corporation (including Other Guarantees) if such
guarantee ranks pari passu with or junior in right of payment to the Securities
(other than (a) dividends or distributions in shares of, or options, warrants or
rights to subscribe for or purchase shares of, Common Stock, (b) any declaration
of a dividend in connection with the implementation of a stockholder's rights
plan, or the issuance of stock under any such plan in the future, or the
prepayment or repurchase of any such rights pursuant thereto, (c) payments under
the Capital Securities Guarantee, (d) the purchase of fractional shares
resulting from a reclassification of the Corporation's capital stock, (e) the
purchase of fractional interests in shares of the Corporation's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged and (f) purchases of Common Stock related
to the issuance of Common Stock or rights under any of the Corporation's benefit
plans for its directors, officers or employees or any of the Corporation's
dividend reinvestment plans), if at such time (1) there shall have occurred any
event of which the Corporation has actual knowledge that (a) is an Event of
Default and (b) in respect of which the Corporation shall not have taken
reasonable steps to cure, (2) if such Securities are held by the Property
Trustee, the Corporation shall be in default with respect to its payment
obligations under the Capital Securities Guarantee or (3) the Corporation shall
have given notice of its election of the exercise of its right to extend the
interest payment period pursuant to Section 16.01 and any such extension shall
be continuing.
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SECTION 3.08. Covenants as to Eagle Financial Capital Trust
In the event Securities are issued to the Trust or a trustee of such trust
in connection with the issuance of Trust Securities by the Trust, for so long as
such Trust Securities remain outstanding, the Corporation (i) will maintain 100%
direct or indirect ownership of the Common Securities of the Trust; provided,
however, that any successor of the Corporation, permitted pursuant to Article X,
may succeed to the Corporation's ownership of such Common Securities, (ii) will
use commercially reasonable efforts to cause the Trust (a) to remain a business
trust, except in connection with a distribution of Securities to the holders of
Trust Securities in liquidation of the Trust, the redemption of all of the Trust
Securities of the Trust, or certain mergers, consolidations or amalgamations,
each as permitted by the Declaration, and (b) to otherwise continue to be
classified as a grantor trust and not an association taxable as a corporation
for United States federal income tax purposes and (iii) will not cause, as
sponsor of the Trust, or permit, as holder of the Common Securities, the
dissolution, winding-up or termination of the Trust, except in connection with a
distribution of the Securities as provided in the Declaration and in connection
with certain mergers, consolidations or amalgamations.
SECTION 3.09. Payment of Expenses
In connection with the offering, sale and issuance of the Securities to
the Trust and in connection with the sale of the Trust Securities by the Trust,
the Corporation, in its capacity as borrower with respect to the Securities,
shall:
(a) pay all costs and expenses relating to the offering, sale and issuance
of the Securities, including commissions to the initial purchaser payable
pursuant to the Purchase Agreement, fees and expenses in connection with any
exchange offer, filing of a shelf registration statement or other action to be
taken pursuant to the Registration Rights Agreement and compensation of the
Debenture Trustee in accordance with the provisions of Section 6.06;
(b) pay all costs and expenses of the Trust (including, but not limited
to, costs and expenses relating to the organization of the Trust, the offering,
sale and issuance of the Trust Securities (including commissions to the initial
purchaser in connection therewith), the fees and expenses of the Property
Trustee and the Delaware Trustee, the costs and expenses relating to the
operation of the Trust, including without limitation, costs and expenses of
accountants, attorneys,
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statistical or bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection with the acquisition,
financing, and disposition of assets of the Trust;
(c) be primarily and fully liable for any indemnification obligations
arising with respect to the Declaration;
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs and expenses
with respect to such taxes of the Trust; and
(e) pay all other fees, expenses, debts and obligations (other than in
respect of the Trust Securities) related to the Trust.
SECTION 3.10. Payment Upon Resignation or Removal
Upon termination of this Indenture or the removal or resignation of the
Debenture Trustee, unless otherwise stated, the Corporation shall pay to the
Debenture Trustee all amounts accrued and owing to the date of such termination,
removal or resignation. Upon termination of the Declaration or the removal or
resignation of the Delaware Trustee or the Property Trustee, as the case may be,
pursuant to Section 5.7 of the Declaration, the Corporation shall pay to the
Delaware Trustee or the Property Trustee, as the case may be, all amounts
accrued and owing to the date of such termination, removal or resignation.
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
CORPORATION AND THE DEBENTURE TRUSTEE
SECTION 4.01. Securityholders' Lists
The Corporation covenants and agrees that it will furnish or cause to be
furnished to the Debenture Trustee:
(a) on a semi-annual basis on each regular record date for the Securities,
a list, in such form as the Debenture Trustee may reasonably require,
of the names and addresses of the Securityholders as of such record
date; and
(b) at such other times as the Debenture Trustee may request in writing,
within 30 days after the
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receipt by the Corporation, 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,
except that, no such lists need be furnished so long as the Debenture
Trustee is in possession thereof by reason of its acting as security
registrar for the Securities.
SECTION 4.02. Preservation and Disclosure of Lists
(a) The Debenture Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of the Securities (1) contained in the most recent list furnished to it
as provided in Section 4.01 or (2) received by it in the capacity of Securities
registrar (if so acting) hereunder. The Debenture Trustee may destroy any list
furnished to it as provided in Section 4.01 upon receipt of a new list so
furnished.
(b) In case three or more holders of Securities (hereinafter referred to
as "applicants") apply in writing to the Debenture Trustee and furnish to the
Debenture Trustee reasonable proof that each such applicant has owned a Security
for a period of at least six months preceding the date of such application, and
such application states that the applicants desire to communicate with other
holders of Securities or with holders of all Securities with respect to their
rights under this Indenture and is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the
Debenture Trustee shall within 5 Business Days after the receipt of such
application, at its election, either:
(1) afford such applicants access to the information preserved at the time
by the Debenture Trustee in accordance with the provisions of
subsection (a) of this Section 4.02, or
(2) inform such applicants as to the approximate number of holders of all
Securities, whose names and addresses appear in the information
preserved at the time by the Debenture Trustee in accordance with the
provisions of subsection (a) of this Section 4.02, and as to the
approximate cost of mailing to such Securityholders the form of proxy
or other communication, if any, specified in such application.
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If the Debenture Trustee shall elect not to afford such applicants access
to such information, the Debenture Trustee shall, upon the written request of
such applicants, mail to each Securityholder whose name and address appear in
the information preserved at the time by the Debenture Trustee in accordance
with the provisions of subsection (a) of this Section 4.02 a copy of the form of
proxy or other communication which is specified in such request with reasonable
promptness after a tender to the Debenture Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five Business Days after such tender, the Debenture
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Debenture Trustee, such mailing would be contrary to
the best interests of the holders of Securities of such series or all
Securities, as the case may be, or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the Commission,
after opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an order so
declaring, the Debenture Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Debenture Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every holder of Securities, by receiving and holding the
same, agrees with the Corporation and the Debenture Trustee that neither the
Corporation nor the Debenture Trustee nor any paying agent shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the holders of Securities in accordance with the provisions of
subsection (b) of this Section 4.02, regardless of the source from which such
information was derived, and that the Debenture Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
said subsection (b).
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SECTION 4.03. Reports by the Corporation
(a) The Corporation covenants and agrees to file with the Debenture
Trustee, within 15 days after the date on which the Corporation 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 said Commission may from time to time by rules and regulations
prescribe) which the Corporation may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the
Corporation is not required to file information, documents or reports pursuant
to either of such sections, then to provide to the Debenture Trustee, such of
the supplementary and periodic information, documents and reports which would
have been required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations.
(b) The Corporation covenants and agrees to file with the Debenture
Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by said Commission, such additional information,
documents and reports with respect to compliance by the Corporation 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 Corporation covenants and agrees to transmit by mail to all
holders of Securities, as the names and addresses of such holders appear upon
the Security Register, within 30 days after the filing thereof with the
Debenture Trustee, such summaries of any information, documents and reports
required to be filed by the Corporation pursuant to subsections (a) and (b) of
this Section 4.03 as may be required by rules and regulations prescribed from
time to time by the Commission.
(d) Delivery of such reports, information and documents to the Debenture
Trustee is for informational purposes only and the Debenture Trustee's receipt
of such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Corporation's compliance with any of its covenants hereunder (as to which the
Debenture Trustee is entitled to rely exclusively on Officers' Certificates).
(e) So long as is required for an offer or sale of the Securities to
qualify for an exemption under Rule 144A under the Securities Act, the
Corporation shall, upon request, provide the information required by clause
(d)(4) thereunder to each Securityholder and to each beneficial owner and
prospective
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purchaser of Securities identified by each Securityholder of Restricted
Securities, unless such information is furnished to the Commission pursuant to
Section 13 or 15(d) of the Exchange Act.
SECTION 4.04. Reports by the Debenture Trustee
(a) The Debenture Trustee shall transmit to Securityholders such reports
concerning the Debenture Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. If required by Section 313(a) of the Trust Indenture
Act, the Debenture Trustee shall, within sixty days after each December 15
following the date of this Indenture, commencing December 15, 1997, deliver to
Securityholders a brief report, dated as of such December 15, which complies
with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Debenture Trustee with each stock exchange, if
any, upon which the Securities are listed, with the Commission and with the
Corporation. The Corporation will promptly notify the Debenture Trustee when the
Securities are listed on any stock exchange.
ARTICLE V
REMEDIES OF THE DEBENTURE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.01. Events of Default
One or more of the following events of default shall constitute an Event
of Default hereunder (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any interest (including Compounded Interest
and Additional Sums, if any) or Liquidated Damages, if any, on the Securities or
any Other Debentures when due, and continuance of such default for a period of
30 days; provided, however, that a valid extension of an interest payment period
by the Corporation in accordance with the terms hereof shall not constitute a
default in the payment of interest for this purpose; or
(b) default in the payment of any principal of (or premium, if any, on)
the Securities or any Other Debentures when
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due whether at maturity, upon prepayment, by declaration of acceleration of
maturity or otherwise; or
(c) default in the performance, or breach, of any covenant or warranty of
the Corporation in this Indenture (other than a covenant or warranty a default
in whose performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the Corporation
by the Debenture Trustee or to the Corporation and the Debenture Trustee by the
holders of at least 25% in aggregate principal amount of the outstanding
Securities a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default" hereunder;
or
(d) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Corporation in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Corporation or for any substantial
part of its property, or ordering the winding-up or liquidation of its affairs
and such decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(e) the Corporation shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, shall
consent to the entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Corporation or of any substantial part of its property,
or shall make any general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due.
If an Event of Default with respect to Securities at the time outstanding
occurs and is continuing, then in every such case the Debenture Trustee or the
holders of not less than 25% in aggregate principal amount of the Securities
then outstanding may declare the principal amount of all Securities to be due
and payable immediately, by a notice in writing to the Corporation (and to the
Debenture Trustee if given by the holders of the outstanding Securities), and
upon any such declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that if,
at any time after the principal of the Securities shall have been so declared
due and payable, and
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before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, (i) the Corporation shall pay or
shall deposit with the Debenture Trustee a sum sufficient to pay (A) all matured
installments of interest (including Compounded Interest and Additional Sums, if
any) and Liquidated Damages, if any, upon all the Securities and the principal
of and premium, if any, on any and all Securities which shall have become due
otherwise than by acceleration (with interest upon such principal and premium,
if any, and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest, at the same rate as the
rate of interest specified in the Securities to the date of such payment or
deposit) and (B) such amount as shall be sufficient to cover compensation due to
the Debenture Trustee and each predecessor Debenture Trustee, their respective
agents, attorneys and counsel, pursuant to Section 6.06, and (ii) any and all
Events of Default under the Indenture, other than the non-payment of the
principal of the Securities which shall have become due solely by such
declaration of acceleration, shall have been cured, waived or otherwise remedied
as provided herein, then, in every such case, the holders of a majority in
aggregate principal amount of the Securities then outstanding, by written notice
to the Corporation and to the Debenture Trustee, may rescind and annul such
declaration and its consequences, but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
In case the Debenture Trustee shall have proceeded to enforce any right
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 Debenture Trustee, then and in every
such case the Corporation, the Debenture Trustee and the holders of the
Securities shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Corporation, the Debenture
Trustee and the holders of the Securities shall continue as though no such
proceeding had been taken.
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SECTION 5.02. Payment of Securities on Default; Suit Therefor
The Corporation covenants that (a) in case default shall be made in the
payment of any installment of interest (including Compounded Interest and
Additional Sums, if any) and Liquidated Damages, if any, upon any of the
Securities as and when the same shall become due and payable, and such default
shall have continued for a period of 30 days, or (b) in case default shall be
made in the payment of the principal of or premium, if any, on any of the
Securities as and when the same shall have become due and payable, whether at
maturity of the Securities or upon prepayment or by declaration or otherwise,
then, upon demand of the Debenture Trustee, the Corporation will pay to the
Debenture Trustee, for the benefit of the holders of the Securities, the whole
amount that then shall have become due and payable on all such Securities for
principal and premium, if any, or interest (including Compounded Interest and
Additional Sums, if any) and Liquidated Damages, if any, or both, as the case
may be, with interest upon the overdue principal and premium, if any, and (to
the extent that payment of such interest is enforceable under applicable law
and, if the Securities are held by the Trust or a trustee of such trust, without
duplication of any other amounts paid by the Trust or a trustee in respect
thereof) upon the overdue installments of interest (including Compounded
Interest and Additional Sums, if any) and Liquidated Damages, if any, at the
rate borne by the Securities; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including a
reasonable compensation to the Debenture Trustee, its agents, attorneys and
counsel, and any other amount due to the Debenture Trustee pursuant to Section
6.06.
In case the Corporation shall fail forthwith to pay such amounts upon such
demand, the Debenture Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any actions 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 Corporation or any other
obligor on the Securities and collect in the manner provided by law out of the
property of the Corporation or any other obligor on the Securities, wherever
situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Corporation or any other obligor on the Securities under
Xxxxx 00, Xxxxxx Xxxxxx Code, or any other applicable law, or in case a receiver
or trustee shall have been appointed for the property of the
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Corporation or such other obligor, or in the case of any other similar judicial
proceedings relative to the Corporation or other obligor upon the Securities, or
to the creditors or property of the Corporation or such other obligor, the
Debenture Trustee, irrespective of whether the principal of the Securities shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Debenture Trustee shall have made any demand
pursuant to the provisions of this Section 5.02, shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount of principal and interest owing and unpaid
in respect of the Securities and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Debenture Trustee (including any
claim for amounts due to the Debenture Trustee pursuant to 6.06) and of the
Securityholders allowed in such judicial proceedings relative to the Corporation
or any other obligor on the Securities, or to the creditors or property of the
Corporation or such other obligor, unless prohibited by applicable law and
regulations, to vote on behalf of the holders of the Securities in any election
of a trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and to collect and receive any moneys or
other property payable or deliverable on any such claims, and to distribute the
same after the deduction of its charges and expenses; and any receiver, assignee
or trustee in bankruptcy or reorganization is hereby authorized by each of the
Securityholders to make such payments to the Debenture Trustee, and, in the
event that the Debenture Trustee shall consent to the making of such payments
directly to the Securityholders, to pay to the Debenture Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Debenture Trustee,
each predecessor Debenture Trustee and their respective agents, attorneys and
counsel, and all other amounts due to the Debenture Trustee pursuant to Section
6.06.
Nothing herein contained shall be construed to authorize the Debenture
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 Securities or the rights of any holder thereof or to
authorize the Debenture Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Debenture Trustee without
the possession of any of the Securities, or the production thereof on any trial
or other
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proceeding relative thereto, and any such suit or proceeding instituted by the
Debenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall be for the ratable benefit of the
holders of the Securities.
In any proceedings brought by the Debenture Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Debenture Trustee shall be a party) the Debenture Trustee shall be
held to represent all the holders of the Securities, and it shall not be
necessary to make any holders of the Securities parties to any such proceedings.
SECTION 5.03. Application of Moneys Collected by Debenture Trustee
Any moneys collected by the Debenture Trustee shall be applied in the
following order, at the date or dates fixed by the Debenture Trustee for the
distribution of such moneys, upon presentation of the Securities in respect of
which moneys have been collected, and stamping thereon the payment, if only
partially paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection applicable to
the Securities and all other amounts due to the Debenture Trustee under Section
6.06;
Second: To the payment of all Senior Indebtedness of the Corporation if
and to the extent required by Article XV;
Third: In case the principal of the outstanding Securities in respect of
which moneys have been collected shall not have become due and be unpaid, to the
payment of the amounts then due and unpaid upon Securities for principal of (and
premium, if any) and interest (including Compounded Interest and Additional
Sums, if any) and Liquidated Damages, if any, on the Securities, in respect of
which or for the benefit of which money has been collected, ratably, without
preference of priority of any kind, according to the amounts due on such
Securities for principal (and premium, if any) and interest, respectively; and
Fourth: To the Corporation.
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SECTION 5.04. Proceedings by Securityholders
No holder of any Security shall have any right by virtue of or by availing
of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
such holder previously shall have given to the Debenture Trustee written notice
of an Event of Default and of the continuance thereof with respect to the
Securities specifying such Event of Default, as hereinbefore provided, and
unless also the holders of not less than 25% in aggregate principal amount of
the Securities then outstanding shall have made written request upon the
Debenture Trustee to institute such action, suit or proceeding in its own name
as Debenture Trustee hereunder and shall have offered to the Debenture Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Debenture 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, it being understood and
intended, and being expressly covenanted by the taker and holder of every
Security with every other taker and holder and the Debenture Trustee, that no
one or more holders of Securities shall have any right in any manner whatever by
virtue of or by availing of any provision of this Indenture to affect, disturb
or prejudice the rights of any other holder of Securities, or to obtain or seek
to obtain priority over or preference to any other such holder, or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all holders of Securities.
Notwithstanding any other provisions in this Indenture, however, the right
of any holder of any Security to receive payment of the principal of (and
premium, if any) and interest on (including Compounded Interest and Additional
Sums, if any) and Liquidated Damages, if any, on such Security, on or after the
same shall have become due and payable, or to institute suit for the enforcement
of any such payment, shall not be impaired or affected without the consent of
such holder and by accepting a Security hereunder it is expressly understood,
intended and covenanted by the taker and holder of every Security with every
other such taker and holder and the Debenture Trustee, that no one or more
holders of Securities shall have any right in any manner whatsoever by virtue or
by availing of any provision of this Indenture to affect, disturb or prejudice
the rights of the holders of any other Securities, or to obtain or seek to
obtain priority over or preference to any other such holder, or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of
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all holders of Securities. For the protection and enforcement of the provisions
of this Section, each and every Securityholder and the Debenture Trustee shall
be entitled to such relief as can be given either at law or in equity.
The Corporation and the Debenture Trustee acknowledge that pursuant to the
Declaration, the holders of Capital Securities are entitled, in the
circumstances and subject to the limitations set forth therein, to commence a
Direct Action with respect to any Event of Default under this Indenture and the
Securities.
SECTION 5.05. Proceedings by Debenture Trustee
In case an Event of Default occurs with respect to Securities and is
continuing, the Debenture 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 Debenture Trustee shall deem most effectual to protect and
enforce any of such rights, either by suit in equity or by action at law or by
proceeding 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 Debenture Trustee by this Indenture or by law.
SECTION 5.06. Remedies Cumulative and Continuing
All powers and remedies given by this Article V to the Debenture 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
Debenture Trustee or the holders of the Securities, 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
the Securities, and no delay or omission of the Debenture Trustee or of any
holder of any of the Securities to exercise any right or power accruing upon any
Event of Default occurring and continuing as aforesaid shall impair any such
right or power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 5.04, every
power and remedy given by this Article V or by law to the Debenture Trustee or
to the Securityholders may be exercised from time to time, and as often as shall
be deemed expedient, by the Debenture Trustee or by the Securityholders.
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by Majority
of Securityholders
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The holders of a majority in aggregate principal amount of the Securities
at the time outstanding shall have the right to direct the time, method, and
place of conducting any proceeding for any remedy available to the Debenture
Trustee, or exercising any trust or power conferred on the Debenture Trustee;
provided, however, that (subject to the provisions of Section 6.01) the
Debenture Trustee shall have the right to decline to follow any such direction
if the Debenture Trustee shall determine that the action so directed would be
unjustly prejudicial to the holders not taking part in such direction or if the
Debenture Trustee being advised by counsel determines that the action or
proceeding so directed may not lawfully be taken or if the Debenture Trustee in
good faith by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees and/or Responsible Officers shall
determine that the action or proceedings so directed would involve the Debenture
Trustee in personal liability. Prior to any declaration accelerating the
maturity of the Securities, the holders of a majority in aggregate principal
amount of the Securities at the time outstanding may on behalf of the holders of
all of the Securities waive any past default or Event of Default and its
consequences except a default (a) in the payment of principal of (or premium, if
any, on) or interest on (including Compounded Interest and Additional Sums, if
any) or Liquidated Damages, if any, on any of the Securities (unless such
default has been cured and a sum sufficient to pay all matured installments of
interest (including Compounded Interest and Additional Sums, if any) (and
premium, if any) and principal due otherwise than by acceleration has been
deposited with the Debenture Trustee) or (b) in respect of covenants or
provisions hereof which cannot be modified or amended without the consent of the
holder of each Security affected; provided, however, that if the Securities are
held by the Property Trustee, such waiver or modification to such waiver shall
not be effective until the holders of a majority in aggregate liquidation amount
of Trust Securities shall have consented to such waiver or modification to such
waiver; provided further, that if the consent of the holder of each outstanding
Security is required, such waiver shall not be effective until each holder of
the Trust Securities 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 Corporation, the Debenture Trustee and the holders of the
Securities 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. Whenever any default or Event of Default
hereunder shall have been waived as permitted by this Section 5.07, said default
or Event of Default shall for all purposes of the Securities and this Indenture
be deemed to have been cured and to be not continuing.
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SECTION 5.08. Notice of Defaults
(a) The Debenture Trustee shall, within 90 days after the occurrence of a
Default with respect to the Securities actually known to a Responsible Officer
of the Debenture Trustee, mail to all Securityholders, as the names and
addresses of such holders appear upon the Security Register, notice of all
Defaults known to the Debenture Trustee, unless such Default shall have been
cured before the giving of such notice (the term "Default" for the purpose of
this Section 5.08 being hereby defined to be any of the events specified in
clauses (a), (b), (c), (d) and (e) of Section 5.01, not including periods of
grace, if any, provided for therein, and irrespective of the giving of written
notice specified in clause (c) of Section 5.01); and provided that, except in
the case of default in the payment of the principal of (or premium, if any, on)
or interest (including Compounded Interest or Additional Sums, if any) or
Liquidated Damages, if any, on any of the Securities, the Debenture Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors and/or
Responsible Officers of the Debenture Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders; and
provided further, that in the case of any default of the character specified in
Section 5.01(c), no such notice to Securityholders shall be given until at least
60 days after the occurrence thereof, but shall be given within 90 days after
such occurrence.
(b) Within five Business Days after the occurrence of any Event of Default
actually known to a Responsible Officer of the Debenture Trustee, the Debenture
Trustee shall transmit notice of such Event of Default to all Securityholders as
their names and addresses appear on the Security Register, unless such Event of
Default shall have been cured or waived.
SECTION 5.09. Undertaking to Pay Costs
All parties to this Indenture agree, and each holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Debenture Trustee for any action
taken or omitted by it as Debenture Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees and expenses, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.09 shall not apply to any suit instituted
by the Debenture Trustee, to any suit instituted by any Securityholder, or group
of Securityholders, holding in the aggregate more than 10% in aggregate
principal amount of the Securities outstanding, or to any suit
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instituted by any Securityholder for the enforcement of the payment of the
principal of (or premium, if any) or interest (including Compounded Interest and
Additional Sums, if any) or Liquidated Damages, if any, on any Security against
the Corporation on or after the same shall have become due and payable.
ARTICLE VI
CONCERNING THE DEBENTURE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Debenture Trustee
With respect to the holders of the Securities issued hereunder, the
Debenture Trustee, prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default which may have occurred, undertakes
to perform such duties and only such duties as are specifically set forth in
this Indenture. In case an Event of Default has occurred (which has not been
cured or waived), the Debenture Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
No provision of this Indenture shall be construed to relieve the Debenture
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default and after the curing or
waiving of all Events of Default which may have occurred,
(1) the duties and obligations of the Debenture Trustee shall be
determined solely by the express provisions of this Indenture, and the Debenture
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 Debenture
Trustee; and
(2) in the absence of bad faith on the part of the Debenture Trustee,
the Debenture 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 Debenture Trustee and conforming to the
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requirements of this Indenture; but, in the case of any such certificates or
opinions which by any provision hereof are specifically required to be furnished
to the Debenture Trustee, the Debenture Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of this
Indenture;
(b) the Debenture Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers, unless it
shall be proved that the Debenture Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Debenture 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 Securityholders pursuant to Section 5.07, relating to the time,
method and place of conducting any proceeding for any remedy available to the
Debenture Trustee, or exercising any trust or power conferred upon the Debenture
Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Debenture Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there is reasonable ground for believing that
the repayment of such funds or liability is not reasonably assured to it under
the terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
SECTION 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(a) the Debenture 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, bond, note, debenture or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the Corporation mentioned
herein may be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any Board
Resolution may be evidenced to the Debenture Trustee by a copy thereof certified
by the Secretary or an Assistant Secretary of the Corporation;
(c) the Debenture Trustee may consult with counsel of its selection and
any advice or Opinion of Counsel shall be full
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and complete authorization and protection in respect of any action taken or
suffered omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(d) the Debenture 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 Debenture
Trustee reasonable and sufficient security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby;
(e) the Debenture Trustee shall not be liable for any action taken or
omitted 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; nothing
contained herein shall, however, relieve the Debenture 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;
(f) the Debenture Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, coupon or other paper or document, unless requested in writing to do
so by the holders of a majority in aggregate principal amount of the outstanding
Securities; provided, however, that if the payment within a reasonable time to
the Debenture 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
Debenture Trustee, not reasonably assured to the Debenture Trustee by the
security afforded to it by the terms of this Indenture, the Debenture Trustee
may require reasonable indemnity against such expense or liability as a
condition to so proceeding;
(g) the Debenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents (including any Authenticating Agent) or attorneys, and the Debenture
Trustee shall not be responsible for any misconduct or negligence on the part of
any such agent or attorney appointed by it with due care;
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(h) the Debenture Trustee shall not be charged with knowledge of any
Default or Event of Default with respect to the Securities unless (1) such
default is a default under Sections 5.01(a) (other than a default with respect
to the payment of Compounded Interest, Liquidated Damages or Additional Sums)
and 5.01(b) of the Indenture, (2) a Responsible Officer shall have actual
knowledge of such Default or Event of Default or (3) written notice of such
Default or Event of Default shall have been given to the Debenture Trustee by
the Corporation or any other obligor on the Securities or by any holder of the
Securities; and
(i) the Debenture Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith, without negligence or willful
misconduct and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
SECTION 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities (except in the
certificate of authentication of the Debenture Trustee or the Authenticating
Agent) shall be taken as the statements of the Corporation, and the Debenture
Trustee and the Authenticating Agent assume no responsibility for the
correctness of the same. The Debenture Trustee and the Authenticating Agent make
no representations as to the validity or sufficiency of this Indenture or of the
Securities. The Debenture Trustee and the Authenticating Agent shall not be
accountable for the use or application by the Corporation of any Securities or
the proceeds of any Securities authenticated and delivered by the Debenture
Trustee or the Authenticating Agent in conformity with the provisions of this
Indenture.
SECTION 6.04. Debenture Trustee, Authenticating Agent, Paying Agents,
Transfer Agents or .egistrar May Own Securities
The Debenture Trustee or any Authenticating Agent or any paying agent or
any transfer agent or any security registrar for the Securities, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not Debenture Trustee,
Authenticating Agent, paying agent, transfer agent or security registrar for the
Securities.
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SECTION 6.05. Moneys to be Held in Trust
Subject to the provisions of Section 11.04, all moneys received by the
Debenture Trustee or any paying agent shall, until used or applied as herein
provided, be held in trust for the purpose for which they were received, but
need not be segregated from other funds except to the extent required by law.
The Debenture Trustee and any paying agent shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed in
writing with the Corporation. So long as no Event of Default shall have occurred
and be continuing, all interest allowed on any such moneys shall be paid from
time to time upon the written order of the Corporation, signed by the Chairman
of the Board of Directors, the President or a Vice President or the Treasurer or
an Assistant Treasurer of the Corporation.
SECTION 6.06. Compensation and Expenses of Debenture Trustee
The Corporation, as issuer of Securities under this Indenture, covenants
and agrees to pay to the Debenture Trustee from time to time, and the Debenture
Trustee shall be entitled to, such compensation as shall be agreed to in writing
between the Corporation and the Debenture Trustee (which shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust), and the Corporation will pay or reimburse the Debenture Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Debenture 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 Corporation also covenants to indemnify each of the
Debenture Trustee or any predecessor Debenture Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any and
all loss, damage, claim, liability or expense including taxes (other than taxes
based on the income of the Debenture Trustee) incurred without negligence or bad
faith on the part of the Debenture 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. The
obligations of the Corporation under this Section 6.06 to compensate and
indemnify the Debenture Trustee and to pay or reimburse the Debenture 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 Securities upon all property and funds held or collected by
the Debenture Trustee as such, except funds held in trust for the benefit of the
holders of particular Securities.
When the Debenture Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(d) or Section
5.01(e), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the resignation or removal of
the Debenture Trustee and the defeasance or other termination of this Indenture.
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SECTION 6.07. Officers' Certificate as Evidence
Except as otherwise provided in Sections 6.01 and 6.02, whenever in the
administration of the provisions of this Indenture the Debenture Trustee shall
deem it necessary or desirable that a matter be proved or established prior to
taking or omitting any action hereunder, such matter (unless other evidence in
respect thereof is herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Debenture Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Debenture Trustee, and such certificate, in the absence of negligence or bad
faith on the part of the Debenture Trustee, shall be full warrant to the
Debenture Trustee for any action taken or omitted by it under the provisions of
this Indenture upon the faith thereof.
SECTION 6.08. Conflicting Interest of Debenture Trustee
If the Debenture Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Debenture
Trustee and the Corporation shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
SECTION 6.09. Eligibility of Debenture Trustee
The Debenture Trustee hereunder 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 million U.S. dollars ($50,000,000) and subject to
supervision or examination by federal, state, territorial, or District of
Columbia authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 6.09 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 Corporation may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Corporation, serve
as Debenture Trustee.
In case at any time the Debenture Trustee shall cease to be eligible in
accordance with the provisions of this Section
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6.09, the Debenture Trustee shall resign immediately in the manner and with the
effect specified in Section 6.10.
SECTION 6.10. Resignation or Removal of Debenture Trustee
(a) The Debenture Trustee, or any trustee or trustees hereafter appointed,
may at any time resign by giving written notice of such resignation to the
Corporation and by mailing notice thereof to the holders of the Securities at
their addresses as they shall appear on the Security register. Upon receiving
such notice of resignation, the Corporation shall promptly appoint a successor
trustee or trustees by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Debenture Trustee and one copy to
the successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 60 days after the mailing of such notice of
resignation to the affected Securityholders, the resigning Debenture 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 a Security for
at least six months may, subject to the provisions of Section 5.09, on behalf of
himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Debenture Trustee shall fail to comply with the provisions of
Section 6.08 after written request therefor by the Corporation or by any
Securityholder who has been a bona fide holder of a Security or Securities for
at least six months, or
(2) the Debenture Trustee shall cease to be eligible in accordance
with the provisions of Section 6.09 and shall fail to resign after written
request therefor by the Corporation or by any such Securityholder, or
(3) the Debenture Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver of the Debenture Trustee or
of its property shall be appointed, or any public officer shall take charge or
control of the Debenture Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
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then, in any such case, the Corporation may remove the Debenture
Trustee and appoint a successor trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the Debenture Trustee so removed
and one copy to the successor trustee, or, subject to the provisions of Section
5.09, any Securityholder who has been a bona fide holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Debenture
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
Debenture Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities at the time outstanding may at any time remove the Debenture Trustee
and nominate a successor trustee, which shall be deemed appointed as successor
trustee unless within 10 days after such nomination the Corporation objects
thereto, or if no successor trustee shall have been so appointed and shall have
accepted appointment within 30 days after such removal, in which case the
Debenture Trustee so removed or any Securityholder, upon the terms and
conditions and otherwise as in subsection (a) of this Section 6.10 provided, may
petition any court of competent jurisdiction for an appointment of a successor
trustee.
(d) Any resignation or removal of the Debenture Trustee and appointment of
a successor trustee pursuant to any of the provisions of this Section 6.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11.
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SECTION 6.11. Acceptance by Successor Debenture Trustee
Any successor trustee appointed as provided in Section 6.10 shall execute,
acknowledge and deliver to the Corporation and to its predecessor trustee an
instrument accepting such appointment hereunder, 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, duties and obligations of its predecessor hereunder,
with like effect as if originally named as trustee herein; but, nevertheless, on
the written request of the Corporation or of the successor trustee, the trustee
ceasing to act shall, upon payment of any amounts then due it pursuant to the
provisions of Section 6.06, execute and deliver an instrument transferring to
such successor trustee all the rights and powers of the trustee so ceasing to
act and shall duly assign, transfer and deliver to such successor trustee all
property and money held by such retiring trustee thereunder. Upon request of any
such successor trustee, the Corporation shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by such
trustee to secure any amounts then due it pursuant to the provisions of Section
6.06.
No successor trustee shall accept appointment as provided in this Section
6.11 unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 6.08 and eligible under the provisions
of Section 6.09.
Upon acceptance of appointment by a successor trustee as provided in this
Section 6.11, the Corporation shall mail notice of the succession of such
trustee hereunder to the holders of Securities at their addresses as they shall
appear on the Security register. If the Corporation fails to mail such notice
within 10 days after the acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Corporation.
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SECTION 6.12. Succession by Merger, etc.
Any corporation into which the Debenture 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 Debenture Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Debenture Trustee, shall be the successor of
the Debenture Trustee hereunder without the execution or filing of any paper or
any further act on the part of any of the parties hereto.
In case at the time such successor to the Debenture Trustee shall succeed
to the trusts created by this Indenture any Securities shall have been
authenticated but not delivered, any such successor to the Debenture Trustee may
adopt the certificate of authentication of any predecessor trustee, and deliver
such Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Debenture Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor trustee; and in all such cases such certificates
shall have the full force which the Securities or this Indenture elsewhere
provides that the certificate of the Debenture Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Debenture Trustee or authenticate Securities in the name of any
predecessor Debenture Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 6.13. Limitation on Rights of Debenture Trustee as a Creditor
The Debenture Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Debenture Trustee who has resigned or been removed
shall be subject to Section 311(a) of the Trust Indenture Act to the extent
included therein.
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SECTION 6.14. Authenticating Agents
There may be one or more Authenticating Agents appointed by the Debenture
Trustee upon the request of the Corporation with power to act on its behalf and
subject to its direction in the authentication and delivery of Securities issued
upon exchange or transfer thereof as fully to all intents and purposes as though
any such Authenticating Agent had been expressly authorized to authenticate and
deliver Securities; provided, that the Debenture Trustee shall have no liability
to the Corporation for any acts or omissions of the Authenticating Agent with
respect to the authentication and delivery of Securities. Any such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States or of any state or territory
thereof or of the District of Columbia authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of at least
$5,000,000 and being 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 the requirements of
such authority, then for the purposes of this Section 6.14 the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect herein specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 6.14 without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written notice
of resignation to the Debenture Trustee and to the Corporation. The Debenture
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and to the
Corporation. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible under this Section 6.14, the Debenture Trustee may, and upon the
request of
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the Corporation shall, promptly appoint a successor Authenticating Agent
eligible under this Section 6.14, shall give written notice of such appointment
to the Corporation and shall mail notice of such appointment to all
Securityholders as the names and addresses of such holders appear on the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent herein.
The Corporation, as borrower, agrees to pay to any Authenticating Agent
from time to time reasonable compensation for its services. Any Authenticating
Agent shall have no responsibility or liability for any action taken by it as
such in accordance with the directions of the Debenture Trustee.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders
Whenever in this Indenture it is provided that the holders of a specified
percentage in aggregate principal amount of the Securities 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 specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by such Securityholders in person or by agent or proxy
appointed in writing, or (b) by the record of such holders of Securities voting
in favor thereof at any meeting of such Securityholders duly called and held in
accordance with the provisions of Article VIII, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Securityholders.
If the Corporation shall solicit from the Securityholders any request,
demand, authorization, direction, notice, consent, waiver or other action, the
Corporation 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 Corporation 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
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Securityholders for the purposes of determining whether Securityholders of the
requisite proportion of outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the outstanding Securities 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
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 7.02. Proof of Execution by Securityholders
Subject to the provisions of Section 6.01, 6.02 and 8.05, proof of the
execution of any instrument by a Securityholder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Debenture Trustee or in such manner as shall be
satisfactory to the Debenture Trustee. The ownership of Securities shall be
proved by the Security Register or by a certificate of the security registrar
for the Securities. The Debenture Trustee may require such additional proof of
any matter referred to in this Section as it shall deem necessary.
The record of any Securityholders' meeting shall be proved in the manner
provided in Section 8.06.
SECTION 7.03. Who Are Deemed Absolute Owners
Prior to due presentment for registration of transfer of any Security, the
Corporation, the Debenture Trustee, any Authenticating Agent, any paying agent,
any transfer agent and any security registrar for the Securities may deem the
person in whose name such Security shall be registered upon the Security
Register to be, and may treat him as, the absolute owner of such Security
(whether or not such Security shall be overdue) for the purpose of receiving
payment of or on account of the principal of and premium, if any, and (subject
to Section 2.06) interest on such Security and for all other purposes; and
neither the Corporation nor the Debenture Trustee nor any Authenticating Agent
nor any paying agent nor any transfer agent nor any security registrar for the
Securities shall be affected by any notice to the contrary. All such payments so
made to any holder for the time being or upon his order shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
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SECTION 7.04. Securities Owned by Corporation Deemed Not Outstanding
In determining whether the holders of the requisite aggregate principal
amount of Securities have concurred in any direction, consent or waiver under
this Indenture, Securities which are owned by the Corporation or any other
obligor on the Securities or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Corporation or
any other obligor on the Securities shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided that for the
purposes of determining whether the Debenture Trustee shall be protected in
relying on any such direction, consent or waiver, only Securities which a
Responsible Officer of the Debenture Trustee actually knows are so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as outstanding for the purposes of this Section 7.04 if the pledgee
shall establish to the satisfaction of the Debenture Trustee the pledgee's right
to vote such Securities and that the pledgee is not the Corporation or any such
other obligor or Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Corporation or any such other
obligor. In the case of a dispute as to such right, any decision by the
Debenture Trustee taken upon the advice of counsel shall be full protection to
the Debenture Trustee.
SECTION 7.05. Revocation of Consents; Future Holders Bound
At any time prior to (but not after) the evidencing to the Debenture
Trustee, as provided in Section 7.01, of the taking of any action by the holders
of the percentage in aggregate principal amount of the Securities specified in
this Indenture in connection with such action, any holder of a Security (or any
Security issued in whole or in part in exchange or substitution therefor),
subject to Section 7.01, the serial number of which is shown by the evidence to
be included in the group of Securities the holders of which have consented to
such action may, by filing written notice with the Debenture Trustee at its
principal office and upon proof of holding as provided in Section 7.02, revoke
such action so far as concerns such Security (or so far as concerns the
principal amount represented by any exchanged or substituted Security). Except
as aforesaid any such action taken by the holder of any Security shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Security, and of any Security issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon such Security or any Security issued in exchange or substitution therefor.
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ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings
A meeting of Securityholders may be called at any time and from time to
time pursuant to the provisions of this Article VIII for any of the following
purposes:
(a) to give any notice to the Corporation or to the Debenture Trustee, or
to give any directions to the Debenture Trustee, or to consent to the waiving of
any default hereunder and its consequences, or to take any other action
authorized to be taken by Securityholders pursuant to any of the provisions of
Article V;
(b) to remove the Debenture Trustee and nominate a successor trustee
pursuant to the provisions of Article VI;
(c) to consent to the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Section 9.02; or
(d) to take any other action authorized to be taken by or on behalf of the
holders of any specified aggregate principal amount of such Securities under any
other provision of this Indenture or under applicable law.
SECTION 8.02. Call of Meetings by Debenture Trustee
The Debenture Trustee may at any time call a meeting of Securityholders to
take any action specified in Section 8.01, to be held at such time and at such
place in New York, New York, as the Debenture Trustee shall determine. Notice of
every meeting of the Securityholders, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be mailed to holders of Securities at their addresses as they
shall appear on the Securities Register. Such notice shall be mailed not less
than 20 nor more than 180 days prior to the date fixed for the meeting.
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SECTION 8.03. Call of Meetings by Corporation or Securityholders
In case at any time the Corporation, pursuant to a resolution of the Board
of Directors, or the holders of at least 10% in aggregate principal amount of
the Securities then outstanding, shall have requested the Debenture Trustee to
call a meeting of Securityholders, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Debenture Trustee shall not have mailed the notice of such meeting within 20
days after receipt of such request, then the Corporation or such Securityholders
may determine the time and the place in New York, New York for such meeting and
may call such meeting to take any action authorized in Section 8.01, by mailing
notice thereof as provided in Section 8.02.
SECTION 8.04. Qualifications for Voting
To be entitled to vote at any meeting of Securityholders a Person shall
(a) be a holder of one or more Securities or (b) a Person appointed by an
instrument in writing as proxy by a holder of one or more Securities. The only
Persons who shall be entitled to be present or to speak at any meeting of
Securityholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives of the Debenture Trustee and its counsel and any
representatives of the Corporation and its counsel.
SECTION 8.05. Regulations
Notwithstanding any other provisions of this Indenture, the Debenture
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Securityholders, in regard to proof of the holding of Securities and
of the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Debenture Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Corporation or by Securityholders as provided in Section 8.03, in which case
the Corporation or the Securityholders calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority vote of the
meeting.
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Subject to the provisions of Section 8.04, at any meeting each holder of
Securities or proxy therefor shall be entitled to one vote for each $1,000
principal amount of Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any Security
challenged as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of Securities held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other Securityholders. Any
meeting of Securityholders duly called pursuant to the provisions of Section
8.02 or 8.03 may be adjourned from time to time by a majority of those present,
and the meeting may be held as so adjourned without further notice.
SECTION 8.06. Voting
The vote upon any resolution submitted to any meeting of holders of
Securities shall be by written ballots on which shall be subscribed the
signatures of such holders or of their representatives by proxy and the serial
number or numbers of the Securities held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
triplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was mailed as
provided in Section 8.02. The record shall show the serial numbers of the
Securities voting in favor of or against any resolution. The record shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one of the duplicates shall be delivered to the Corporation and
the other to the Debenture Trustee to be preserved by the Debenture Trustee, the
latter to have attached thereto the ballots voted at the meeting. The holders of
the Series A Capital Securities and the Series B Capital Securities shall vote
for all purposes as a single class.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
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ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Securityholders
The Corporation and the Debenture Trustee may from time to time and at any
time amend the Indenture, without the consent of the Securityholders, for one or
more of the following purposes:
(a) to evidence the succession of another Person to the Corporation, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Corporation pursuant to Article X
hereof;
(b) to add to the covenants of the Corporation such further covenants,
restrictions or conditions for the protection of the Securityholders as the
Board of Directors and the Debenture Trustee shall consider to be for the
protection of the Securityholders, and to make the occurrence, or the occurrence
and continuance, of a default in any of such additional covenants, restrictions
or conditions a default or an Event of Default permitting the enforcement of all
or any of the remedies provided in this Indenture as herein set forth; provided,
however, that in respect of any such additional covenant, restriction or
condition such amendment may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such default or
may limit the remedies available to the Debenture Trustee upon such default;
(c) to provide for the issuance under this Indenture of Securities in
coupon form (including Securities registrable as to principal only) and to
provide for exchangeability of such Securities with the Securities issued
hereunder in fully registered form and to make all appropriate changes for such
purpose;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture; provided that any such action shall not materially
adversely affect the interests of the holders of the Securities;
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(e) to evidence and provide for the acceptance of appointment hereunder by
a successor trustee with respect to the Securities;
(f) to make provision for transfer procedures, certification, book-entry
provisions, the form of restricted securities legends, if any, to be placed on
Securities, and all other matters required pursuant to Section 2.07 or otherwise
necessary, desirable or appropriate in connection with the issuance of
Securities to holders of Capital Securities in the event of a distribution of
Securities by the Trust following a Dissolution Event; provided that any such
action shall not materially adversely affect the interests of the holders of the
Securities;
(g) to qualify or maintain qualification of this Indenture under the Trust
Indenture Act; or
(h) to make any change that does not adversely affect the rights of any
Securityholder in any material respect.
The Debenture Trustee is hereby authorized to join with the Corporation in
the execution of any supplemental indenture to effect such amendment, to make
any further appropriate agreements and stipulations which may be therein
contained and to accept the conveyance, transfer and assignment of any property
thereunder, but the Debenture Trustee shall not be obligated to, but may in its
discretion, enter into any such supplemental indenture which affects the
Debenture Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Any amendment to the Indenture authorized by the provisions of this
Section 9.01 may be executed by the Corporation and the Debenture Trustee
without the consent of the holders of any of the Securities at the time
outstanding, notwithstanding any of the provisions of Section 9.02.
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SECTION 9.02. With Consent of Securityholders
With the consent (evidenced as provided in Section 7.01) of the holders of
a majority in aggregate principal amount of the Securities at the time
outstanding, the Corporation, when authorized by a Board Resolution, and the
Debenture Trustee may from time to time and at any time amend the Indenture for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the holders of the Securities; provided, however, that no such amendment
shall, without the consent of the holders of each Security then outstanding and
affected thereby (i) change the Maturity Date of any Security, or reduce the
rate or extend the time of payment of interest thereon (except as contemplated
by Article XVI), or reduce the principal amount thereof, or reduce any amount
payable on prepayment thereof, or make the principal thereof or any interest or
premium thereon payable in any coin or currency other than that provided in the
Securities, or impair or affect the right of any Securityholder to institute
suit for payment thereof, or (ii) reduce the aforesaid percentage of Securities,
the holders of which are required to consent to any such amendment to the
Indenture, provided, however, that if the Securities are held by the Trust, such
amendment shall not be effective until the holders of a majority in liquidation
amount of Trust Securities shall have consented to such amendment; provided,
further, that if the consent of the holder of each outstanding Security is
required, such amendment shall not be effective until each holder of the Trust
Securities shall have consented to such amendment.
Upon the request of the Corporation accompanied by a copy of a resolution
of the Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any supplemental indenture affecting such
amendment, and upon the filing with the Debenture Trustee of evidence of the
consent of Securityholders as aforesaid, the Debenture Trustee shall join with
the Corporation in the execution of such supplemental indenture unless such
supplemental indenture affects the Debenture Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Debenture
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
Promptly after the execution by the Corporation and the Debenture Trustee
of any supplemental indenture pursuant to the provisions of this Section, the
Debenture Trustee shall transmit by mail, first class postage prepaid, a notice,
prepared by the Corporation, setting forth in general terms the substance of
such supplemental indenture, to the Securityholders as their names and
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addresses appear upon the Security Register. Any failure of the Debenture
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.
It shall not be necessary for the consent of the Securityholders under
this Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures
Any supplemental indenture executed pursuant to the provisions of this
Article IX shall comply with the Trust Indenture Act. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article IX, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Debenture Trustee, the Corporation
and the holders of Securities shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 9.04. Notation on Securities
Securities authenticated and delivered after the execution of any
supplemental indenture affecting such series pursuant to the provisions of this
Article IX may bear a notation in form approved by the Debenture Trustee as to
any matter provided for in such supplemental indenture. If the Corporation or
the Debenture Trustee shall so determine, new Securities so modified as to
conform, in the opinion of the Debenture Trustee and the Board of Directors, to
any modification of this Indenture contained in any such supplemental indenture
may be prepared and executed by the Corporation, authenticated by the Debenture
Trustee or the Authenticating Agent and delivered in exchange for the Securities
then outstanding.
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished to Debenture Trustee
The Debenture Trustee, subject to the provisions of Sections 6.01 and
6.02, may receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article IX.
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ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Corporation May Consolidate, etc., on Certain Terms
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Corporation with or into any other
Person (whether or not affiliated with the Corporation, as the case may be), or
successive consolidations or mergers in which the Corporation or its successor
or successors, as the case may be, shall be a party or parties, or shall prevent
any sale, conveyance, transfer or lease of the property of the Corporation, or
its successor or successors as the case may be, as an entirety, or substantially
as an entirety, to any other Person (whether or not affiliated with the
Corporation, or its successor or successors, as the case may be) authorized to
acquire and operate the same; provided, that (a) the Corporation is the
surviving Person, or the Person formed by or surviving any such consolidation or
merger (if other than the Corporation) or to which such sale, conveyance,
transfer or lease of property is made is a Person organized and existing under
the laws of the United States or any State thereof or the District of Columbia,
and (b) upon any such consolidation, merger, sale, conveyance, transfer or
lease, the due and punctual payment of the principal of (and premium, if any)
and interest on the Securities according to their tenor and the due and punctual
performance and observance of all the covenants and conditions of this Indenture
to be kept or performed by the Corporation shall be expressly assumed, by
supplemental indenture (which shall conform to the provisions of the Trust
Indenture Act as then in effect) satisfactory in form to the Debenture Trustee
executed and delivered to the Debenture Trustee by the Person formed by such
consolidation, or into which the Corporation shall have been merged, or by the
Person which shall have acquired such property, as the case may be, and (c)
after giving effect to such consolidation, merger, sale, conveyance, transfer or
lease, no Default or Event of Default shall have occurred and be continuing.
SECTION 10.02. Successor Corporation to be Substituted for Corporation
In case of any such consolidation, merger, conveyance or transfer and upon
the assumption by the successor corporation, by supplemental indenture, executed
and delivered to the Debenture Trustee and satisfactory in form to the Debenture
Trustee, of the obligation of due and punctual payment of the principal of (and
premium, if any, on) and interest on all of the
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Securities and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed or observed by the
Corporation, such successor Person shall succeed to and be substituted for the
Corporation, with the same effect as if it had been named herein as the party of
the first part, and the Corporation thereupon shall be relieved of any further
liability or obligation hereunder or upon the Securities. Such successor Person
thereupon may cause to be signed, and may issue either in its own name or in the
name of Eagle Financial Corp., any or all of the Securities issuable hereunder
which theretofore shall not have been signed by the Corporation and delivered to
the Debenture Trustee or the Authenticating Agent; and, upon the order of such
successor Person instead of the Corporation and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Debenture Trustee
or the Authenticating Agent shall authenticate and deliver any Securities which
previously shall have been signed and delivered by the officers of the
Corporation to the Debenture Trustee or the Authenticating Agent for
authentication, and any Securities which such successor Person thereafter shall
cause to be signed and delivered to the Debenture Trustee or the Authenticating
Agent for that purpose. All the Securities so issued shall in all respects have
the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Indentures had been issued at the date of the execution
hereof.
SECTION 10.03. Opinion of Counsel to be Given Debenture Trustee
The Debenture Trustee, subject to the provisions of Sections 6.01 and
6.02, may receive an Opinion of Counsel as conclusive evidence that any
consolidation, merger, sale, conveyance, transfer or lease, and any assumption,
permitted or required by the terms of this Article X complies with the
provisions of this Article X.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture
When (a) the Corporation shall deliver to the Debenture Trustee for
cancellation all Securities theretofore authenticated (other than any Securities
which shall have been destroyed, lost or stolen and which shall have been
replaced as provided in Section 2.08) and not theretofore cancelled, or (b) all
the Securities not theretofore cancelled or delivered to the
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Debenture 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
prepayment within one year under arrangements satisfactory to the Debenture
Trustee for the giving of notice of prepayment, and the Corporation shall
deposit with the Debenture Trustee, in trust, funds sufficient to pay on the
Maturity Date or upon prepayment all of the Securities (other than any
Securities which shall have been destroyed, lost or stolen and which shall have
been replaced as provided in Section 2.08) not theretofore cancelled or
delivered to the Debenture Trustee for cancellation, including principal (and
premium, if any) and interest (including Compounded Interest and Additional
Sums, if any) and Liquidated Damages, if any, due or to become due to the
Maturity Date or prepayment date, as the case may be, but excluding, however,
the amount of any moneys for the payment of principal of (or premium, if any) or
interest (including Compounded Interest and Additional Sums, if any) or
Liquidated Damages, if any, on the Securities (1) theretofore repaid to the
Corporation in accordance with the provisions of Section 11.04, or (2) paid to
any State or to the District of Columbia pursuant to its unclaimed property or
similar laws, and if in either case the Corporation shall also pay or cause to
be paid all other sums payable hereunder by the Corporation, then this Indenture
shall cease to be of further effect except for the provisions of Sections 2.02,
2.07, 2.08, 3.01, 3.02, 3.04, 6.06, 6.10 and 11.04 hereof, which shall survive
until such Securities shall mature and be paid. Thereafter, Sections 6.06, 6.10
and 11.04 shall survive, and the Debenture Trustee, on demand of the Corporation
accompanied by any Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Corporation, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture; the Corporation,
however, hereby agrees to reimburse the Debenture Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Debenture Trustee in
connection with this Indenture or the Securities.
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to be Held
in Trust by Debenture Trustee
Subject to the provisions of Section 11.04, all moneys and U.S. Government
Obligations deposited with the Debenture Trustee pursuant to Sections 11.01 or
11.05 shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the Corporation if acting as its own
paying agent), to the holders of the particular Securities for the payment of
which such moneys or U.S. Government Obligations have been deposited with the
Debenture Trustee, of all sums due and to become due thereon for principal,
premium, if any, and interest.
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The Corporation shall pay and indemnify the Debenture Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 11.05 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the holders of outstanding Securities.
SECTION 11.03. Paying Agent to Repay Moneys Held
Upon the satisfaction and discharge of this Indenture all moneys then held
by any paying agent of the Securities (other than the Debenture Trustee) shall,
upon written demand of the Corporation, be repaid to it or paid to the Debenture
Trustee, and thereupon such paying agent shall be released from all further
liability with respect to such moneys.
SECTION 11.04. Return of Unclaimed Moneys
Any moneys deposited with or paid to the Debenture Trustee or any paying
agent for payment of the principal of (or premium, if any) or interest on
Securities and not applied but remaining unclaimed by the holders of Securities
for two years after the date upon which the principal of (or premium, if any) or
interest (including Compounded Interest and Additional Sums, if any) or
Liquidated Damages, if any, on such Securities, as the case may be, shall have
become due and payable, shall be repaid to the Corporation by the Debenture
Trustee or such paying agent on written demand; and the holder of any of the
Securities shall thereafter look only to the Corporation for any payment which
such holder may be entitled to collect and all liability of the Debenture
Trustee or such paying agent with respect to such moneys shall thereupon cease.
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations
The Corporation shall be deemed to have been Discharged (as defined below)
from its obligations with respect to the Securities on the 91st day after the
applicable conditions set forth below have been satisfied:
(1) the Corporation shall have deposited or caused to be deposited
irrevocably with the Debenture Trustee or the Defeasance Agent (as defined
below) as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the holders of the Securities (i) money in
an amount, or (ii) U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms will
provide, not later than one day
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before the due date of any payment, money in an amount, or (iii) a combination
of (i) and (ii), sufficient, in the opinion (with respect to (ii) and (iii)) of
a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Debenture Trustee and the
Defeasance Agent, if any, to pay and discharge each installment of principal of
and interest and premium, if any, on the outstanding Securities on the dates
such installments of principal, interest or premium are due;
(2) if the Securities are then listed on any national securities exchange,
the Corporation shall have delivered to the Debenture Trustee and the Defeasance
Agent, if any, an Opinion of Counsel to the effect that the exercise of the
option under this Section 11.05 would not cause such Securities to be delisted
from such exchange;
(3) no Default or Event of Default with respect to the Securities shall
have occurred and be continuing on the date of such deposit; and
(4) the Corporation shall have delivered to the Debenture Trustee and the
Defeasance Agent, if any, an Opinion of Counsel to the effect that holders of
the Securities will not recognize income, gain or loss for United States federal
income tax purposes as a result of the exercise of the option under this Section
11.05 and will be subject to United States federal income tax on the same amount
and in the same manner and at the same times as would have been the case if such
option had not been exercised.
"Discharged" means that the Corporation shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities and to have satisfied all the obligations under this Indenture
relating to the Securities (and the Debenture Trustee, at the expense of the
Corporation, shall execute proper instruments acknowledging the same), except
(A) the rights of holders of Securities to receive, from the trust fund
described in clause (1) above, payment of the principal of and the interest and
premium, if any, on the Securities when such payments are due; (B) the
Corporation's obligations with respect to the Securities under Sections 2.07,
2.08, 5.02 and 11.04; and (C) the rights, powers, trusts, duties and immunities
of the Debenture Trustee hereunder.
"Defeasance Agent" means another financial institution which is eligible
to act as Debenture Trustee hereunder and which assumes all of the obligations
of the Debenture Trustee necessary to enable the Debenture Trustee to act
hereunder. In the event
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such a Defeasance Agent is appointed pursuant to this Section, the following
conditions shall apply:
(1) The Debenture Trustee shall have approval rights over the document
appointing such Defeasance Agent and the document setting forth such Defeasance
Agent's rights and responsibilities;
(2) The Defeasance Agent shall provide verification to the Debenture
Trustee acknowledging receipt of sufficient money and/or U. S. Government
Obligations to meet the applicable conditions set forth in this Section 11.05.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Securities Solely Corporate Obligations
No recourse for the payment of the principal of or premium, if any, or
interest on any Security, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Corporation in this Indenture, or in any Security, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Corporation or of any successor Person to the Corporation, either
directly or through the Corporation or any successor Person to the 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 all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors
All the covenants, stipulations, promises and agreements in this Indenture
contained by the Corporation shall bind its successors and assigns whether so
expressed or not.
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SECTION 13.02. Official Acts by Successor Corporation
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
Corporation shall and may be done and performed with like force and effect by
the like board, committee or officer of any corporation that shall at the time
be the lawful sole successor of the Corporation.
SECTION 13.03. Surrender of Corporation Powers
The Corporation by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and delivered to the Debenture Trustee
may surrender any of the powers reserved to the Corporation, and thereupon such
power so surrendered shall terminate both as to the Corporation, as the case may
be, and as to any successor Person.
SECTION 13.04. Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture is required
or permitted to be given or served by the Debenture Trustee or by the holders of
Securities on the Corporation may be given or served by being deposited postage
prepaid by first class mail, registered or certified mail, overnight courier
service or conformed telecopy addressed (until another address is filed by the
Corporation with the Debenture Trustee for the purpose) to the Corporation at
000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx, 00000, Attention: Vice President,
Secretary and Chief Financial Officer. Any notice, direction, request or demand
by any Securityholder to or upon the Debenture Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing
at the office of the Debenture Trustee, Xxxxxx Square North, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Administration Department (unless another address is provided by the Debenture
Trustee to the Corporation for such purpose). Any notice or communication to a
Securityholder shall be mailed by first class mail to his or her address shown
on the register kept by the security registrar for the Securities.
SECTION 13.05. Governing Law
This Indenture and each Security shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be governed
by and construed in accordance with the laws of said State, without regard to
conflicts of laws principles thereof.
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SECTION 13.06. Evidence of Compliance with Conditions Precedent
Upon any application or demand by the Corporation to the Debenture Trustee
to take any action under any of the provisions of this Indenture, the
Corporation shall furnish to the Debenture Trustee an Officers' Certificate
stating that in the opinion of the signers all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered
to the Debenture Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (except certificates delivered pursuant to
Section 3.05) shall include (1) a statement that the Person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 13.07. Business Days
In any case where the date of payment of principal of (or premium, if any)
or interest on the Securities will not be a Business Day, the payment of such
principal of (or premium, if any) or interest on the Securities need not be made
on such date but may be made on the next succeeding Business Day, with the same
force and effect as if made on the date of payment and no interest shall accrue
for the period from and after such date, except that if such next succeeding
Business Day falls in the next succeeding calendar year, then 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.
SECTION 13.08. Trust Indenture Act to Control
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 318,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
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SECTION 13.09. Table of Contents, Headings, etc.
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
SECTION 13.10. Execution in 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 13.11. Separability
In case any one or more of the provisions contained in this Indenture or
in the Securities 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 Securities,
but this Indenture and the Securities shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
SECTION 13.12. Assignment
The Corporation 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 Corporation, provided that, in the event of any
such assignment, the Corporation will remain liable for all such obligations.
Subject to the foregoing, the Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors and assigns. This
Indenture may not otherwise be assigned by the parties thereto.
SECTION 13.13. Acknowledgement of Rights
The Corporation acknowledges that, with respect to any Securities held by
Eagle Financial Capital Trust or a trustee of such trust, if the Property
Trustee of such Trust fails to enforce its rights under this Indenture as the
holder of the Securities held as the assets of Eagle Financial Capital Trust,
any holder of Capital Securities may institute legal proceedings directly
against the Corporation 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
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attributable to the failure of the Corporation to pay principal of (or premium,
if any) or interest on the Securities when due, the Corporation acknowledges
that a holder of Capital Securities may directly institute a proceeding for
enforcement of payment to such holder of the principal of (or premium, if any)
or interest on the Securities having a principal amount equal to the aggregate
liquidation amount of the Capital Securities of such holder on or after the
respective due date specified in the Securities.
ARTICLE XIV
PREPAYMENT OF SECURITIES -- MANDATORY AND
OPTIONAL SINKING FUND
SECTION 14.01. Special Event Prepayment
If, prior to the Initial Optional Prepayment Date, a Special Event has
occurred and is continuing, then notwithstanding Section 14.02(a) but subject to
Section 14.02(c), the Corporation shall have the right, at any time within 90
days following the occurrence of such Special Event, upon (i) not less than 45
days written notice to the Debenture Trustee and (ii) not less than 30 days nor
more than 60 days written notice to the Securityholders, to prepay the
Securities, in whole (but not in part), at the Special Event Prepayment Price.
Following a Special Event, the Corporation shall take such action as is
necessary to promptly determine the Special Event Prepayment Price, including
without limitation the appointment by the Corporation of a Quotation Agent. The
Special Event Prepayment Price shall be paid prior to 12:00 noon, New York, New
York time, on the date of such prepayment or such earlier time as the
Corporation determines, provided that the Corporation shall deposit with the
Debenture Trustee an amount sufficient to pay the Special Event Prepayment Price
by 10:00 a.m., New York time, on the date such Special Event Prepayment Price is
to be paid.
SECTION 14.02. Optional Prepayment by Corporation
(a) Subject to the provisions of this Article XIV, the Corporation shall
have the right to prepay the Securities, in whole or in part, at any time on or
after the Initial Optional Prepayment Date, upon not less than 30 days and not
more than 60 days' notice, at the prepayment prices set forth below plus, in
each case, accrued and unpaid interest thereon (including Compounded Interest
and Additional Sums, if any) and Liquidated Damages, if any, to the applicable
date of prepayment (the "Optional Prepayment Price") if prepaid during the
12-month period beginning April 1 of the years indicated below.
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Percentage
Year of Principal
2007 105.0%
2008 104.5%
2009 104.0%
2010 103.5%
2011 103.0%
2012 102.5%
2013 102.0%
2014 101.5%
2015 101.0%
2016 100.5%
2017 and thereafter 100.0%
-----
If the Securities are only partially prepaid pursuant to this Section
14.02, the Securities to be prepaid shall be selected on a pro rata basis not
more than 60 days prior to the date fixed for prepayment from the outstanding
Securities not previously called for prepayment, provided, however, that with
respect to Securityholders that would be required to hold Securities with an
aggregate principal amount of less than $100,000 but more than an aggregate
principal amount of zero as a result of such pro rata prepayment, the
Corporation shall prepay Securities of each such Securityholder so that after
such prepayment such Securityholder shall hold Securities either with an
aggregate principal amount of at least $100,000 or such Securityholder no longer
holds any Securities, and shall use such method (including, without limitation,
by lot) as the Corporation shall deem fair and appropriate, provided, further,
that any such proration may be made on the basis of the aggregate principal
amount of Securities held by each Securityholder and may be made by making such
adjustments as the Corporation deems fair and appropriate in order that only
Securities in denominations of $1,000 or integral multiples thereof shall be
prepaid. The Optional Prepayment Price shall be paid prior to 12:00 noon, New
York time, on the date of such prepayment or at such earlier time as the
Corporation determines, provided that the Corporation shall deposit with the
Debenture Trustee an amount sufficient to pay the Optional Prepayment Price by
10:00 a.m., New York time, on the date such Optional Prepayment Price is to be
paid.
(b) Notwithstanding the first sentence of Section 14.02(a), upon the entry
of an order for dissolution of the Trust by a court of competent jurisdiction,
the Securities thereafter will be subject to optional prepayment, in whole only,
but not in part, on or after April 1, 2007, at the optional prepayment prices
set forth in Section 14.02 and otherwise in accordance with this Article XIV.
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(c) Any prepayment of Securities pursuant to Section 14.01 or Section
14.02 shall be subject to the Corporation obtaining the prior approval of the
Federal Reserve, if such approval is then required under applicable capital
guidelines or policies of the Federal Reserve, and any other required regulatory
approvals.
SECTION 14.03. No Sinking Fund
The Securities are not entitled to the benefit of any sinking fund.
SECTION 14.04. Notice of Prepayment; Selection of Securities
In case the Corporation shall desire to exercise the right to prepay all,
or, as the case may be, any part of the Securities in accordance with their
terms, it shall fix a date for prepayment and shall mail a notice of such
prepayment at least 30 and not more than 60 days prior to the date fixed for
prepayment to the holders of Securities to be so prepaid as a whole or in part
at their last addresses as the same appear on the Security Register. Such
mailing shall be by first class mail. The notice if mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the holder receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the holder of any Security designated for
prepayment as a whole or in part shall not affect the validity of the
proceedings for the prepayment of any other Security.
Each such notice of prepayment shall specify the CUSIP number of the
Securities to be prepaid, the date fixed for prepayment, the prepayment price at
which the Securities are to be prepaid (or the method by which such prepayment
price is to be calculated), the place or places of payment that payment will be
made upon presentation and surrender of the Securities, that interest accrued to
the date fixed for prepayment will be paid as specified in said notice, and that
on and after said date interest thereon or on the portions thereof to be prepaid
will cease to accrue. If less than all the Securities are to be prepaid, the
notice of prepayment shall specify the numbers of the Securities to be prepaid.
In case any Security is to be prepaid in part only, the notice of prepayment
shall state the portion of the principal amount thereof to be prepaid and shall
state that on and after the date fixed for prepayment, upon surrender of such
Security, a new Security or Securities in principal amount equal to the portion
thereof that has not been prepaid will be issued.
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By 10:00 a.m. New York time on the prepayment date specified in the notice
of prepayment given as provided in this Section, the Corporation will deposit
with the Debenture Trustee or with one or more paying agents an amount of money
sufficient to prepay on the prepayment date all the Securities so called for
prepayment at the appropriate Prepayment Price, together with accrued interest
to the date fixed for prepayment.
The Corporation will give the Debenture Trustee notice not less than 45
days prior to the prepayment date as to the aggregate principal amount of
Securities to be prepaid and the Debenture Trustee shall select, in such manner
as in its sole discretion it shall deem appropriate and fair, the Securities or
portions thereof (in integral multiples of $1,000, except as otherwise set forth
in the applicable form of Security) to be prepaid.
SECTION 14.05. Payment of Securities Called for Prepayment
If notice of prepayment has been given as provided in Section 14.04, the
Securities or portions of Securities with respect to which such notice has been
given shall become due and payable on the date and at the place or places stated
in such notice at the applicable Prepayment Price, together with interest
accrued to the date fixed for prepayment (subject to the rights of holders of
Securities at the close of business on a regular record date in respect of an
Interest Payment Date occurring on or prior to the prepayment date), and on and
after said date (unless the Corporation shall default in the payment of such
Securities at the Prepayment Price, together with interest accrued to said date)
interest (including Compounded Interest and Additional Sums, if any) and
Liquidated Damages, if any, on the Securities or portions of Securities so
called for prepayment shall cease to accrue. On presentation and surrender of
such Securities at a place of payment specified in said notice, the said
Securities or the specified portions thereof shall be paid and prepaid by the
Corporation at the applicable Prepayment Price, together with interest
(including Compounded Interest and Additional Sums, if any) and Liquidated
Damages, if any, accrued thereon to the date fixed for prepayment (subject to
the rights of holders of Securities on the close of business on a regular record
date in respect of an Interest Payment Date occurring on or prior to the
prepayment date).
Upon presentation of any Security prepaid in part only, the Corporation
shall execute and the Debenture Trustee shall authenticate and make available
for delivery to the holder thereof, at the expense of the Corporation, a new
Security or Securities of authorized denominations, in principal amount equal
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to the portion of the Security so presented that has not been prepaid.
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01. Agreement to Subordinate
The Corporation covenants and agrees, and each holder of Securities issued
hereunder likewise covenants and agrees, that the Securities shall be issued
subject to the provisions of this Article XV; and each holder of a Security,
whether upon original issue or upon transfer or assignment thereof, accepts and
agrees to be bound by such provisions.
The payment by the Corporation of the principal of, premium, if any, and
interest (including Compounded Interest and Additional Sums, if any) and
Liquidated Damages, if any, on all Securities issued hereunder shall, to the
extent and in the manner hereinafter set forth, be subordinated and junior in
right of payment to all Senior Indebtedness, whether outstanding at the date of
this Indenture or thereafter incurred.
No provision of this Article XV shall prevent the occurrence of any
Default or Event of Default hereunder.
SECTION 15.02. Default on Senior Indebtedness
In the event and during the continuation of any default by the Corporation
in the payment of principal, premium, interest or any other payment due on any
Senior Indebtedness, or in the event that the maturity of any Senior
Indebtedness has been accelerated because of a default, then, in either case, no
payment shall be made by the Corporation with respect to the principal
(including prepayment payments) of (or premium, if any) or interest on the
Securities (including Compounded Interest and Additional Sums (if any) and
Liquidated Damages, if any, or any other amounts which may be due on the
Securities pursuant to the terms hereof or otherwise).
In the event of the acceleration of the maturity of the Securities, then
no payment shall be made by the Corporation with respect to the principal
(including prepayment payments) of (or premium, if any) or interest on the
Securities (including Compounded Interest and Additional Sums (if any) and
Liquidated Damages, if any, or any other amounts which may be due on the
Securities pursuant to the terms hereof or otherwise) until the holders of all
Senior Indebtedness outstanding at the time of such acceleration shall receive
payment in full of such Senior Indebtedness (including any amounts due upon
acceleration).
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In the event that, notwithstanding the foregoing, any payment shall be
received by the Debenture Trustee when such payment is prohibited by the
preceding paragraphs of this Section 15.02, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to the
extent that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Debenture Trustee in writing within 90
days of such payment of the amounts then due and owing on such Senior
Indebtedness, and only the amounts specified in such notice to the Debenture
Trustee shall be paid to the holders of such Senior Indebtedness.
SECTION 15.03. Liquidation; Dissolution; Bankruptcy
Upon any payment by the Corporation or distribution of assets of the
Corporation of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution, winding-up, liquidation or reorganization of
the Corporation, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all Senior Indebtedness of the Corporation
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 Corporation on
account of the principal of (or premium, if any) or interest on the Securities
(including Compounded Interest and Additional Sums (if any) and Liquidated
Damages, if any, or any other amounts which may be due on the Securities
pursuant to the terms hereof or otherwise); and upon any such dissolution or
winding-up or liquidation or reorganization, any payment by the Corporation, or
distribution of assets of the Corporation of any kind or character, whether in
cash, property or securities, which the Securityholders or the Debenture Trustee
would be entitled to receive from the Corporation, except for the provisions of
this Article XV, shall be paid by the Corporation or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Securityholders or by the Debenture Trustee under the
Indenture if received by them or it, directly to the holders of Senior
Indebtedness of the Corporation (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness held by such holders, as calculated by
the Corporation) or their representative or representatives, or to the trustee
or trustees under any indenture pursuant to which any instruments evidencing
such Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay all such Senior Indebtedness 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 Indebtedness, before any
payment or distribution is made to the Securityholders or to the Debenture
Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Corporation of any kind or character prohibited by
the foregoing, whether in cash, property or securities, shall be received by the
Debenture Trustee before all Senior Indebtedness is paid in full, or provision
is made for such payment in money in accordance with its terms, such payment or
distribution shall be held in trust for the benefit of and shall be paid over or
delivered to the holders of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective
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interests may appear, as calculated by the Corporation, for
application to the payment of all Senior Indebtedness remaining unpaid to the
extent necessary to pay all such Senior Indebtedness 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 Indebtedness.
For purposes of this Article XV, the words "cash, property or securities"
shall not be deemed to include shares of stock of the Corporation as reorganized
or readjusted, or securities of the Corporation 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 XV with respect
to the Securities to the payment of Senior Indebtedness that may at the time be
outstanding, provided that (i) such Senior Indebtedness is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment, and
(ii) the rights of the holders of such Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Corporation with, or the merger of the Corporation into,
another Person or the liquidation or dissolution of the Corporation following
the sale, conveyance, transfer or lease of its property as an entirety, or
substantially as an entirety, to another Person upon the terms and conditions
provided for in Article X of this Indenture shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 15.03
if such other Person shall, as a part of such consolidation, merger, sale,
conveyance, transfer or lease, comply with the conditions stated in Article X of
this Indenture. Nothing in Section 15.02 or in this Section 15.03 shall apply to
claims of, or payments to, the Debenture Trustee under or pursuant to Section
6.06 of this Indenture.
SECTION 15.04. Subrogation
Subject to the payment in full of all Senior Indebtedness, the rights of
the Securityholders shall be subrogated to the rights of the holders of such
Senior Indebtedness to receive payments or distributions of cash, property or
securities of the Corporation, as the case may be, applicable to such Senior
Indebtedness until the principal of (and premium, if any) and interest on the
Securities shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of such Senior Indebtedness of any
cash, property or securities to which the Securityholders or the Debenture
Trustee would be entitled except for the provisions of this Article XV, and no
payment over pursuant to the provisions of this Article XV to or for the benefit
of the holders of such Senior Indebtedness by Securityholders or the Debenture
Trustee, shall, as between the Corporation, its creditors other than holders of
Senior Indebtedness of the Corporation, and the holders of the Securities, be
deemed to be a payment by the Corporation to or on account of such Senior
Indebtedness. It is understood that the provisions of this Article XV are and
are intended solely for the purposes of defining the relative rights of the
holders of the Securities, on the one hand, and the holders of such Senior
Indebtedness on the other hand.
Nothing contained in this Article XV or elsewhere in this Indenture or in
the Securities is intended to or shall impair, as between the Corporation, its
creditors other than the holders of Senior Indebtedness of the Corporation, and
the holders of the Securities, the obligation of the Corporation, which is
absolute and unconditional, to pay to the holders of the Securities the
principal of (and premium, if any) and interest (including Compounded Interest
and Additional Sums, if any) and Liquidated Damages, if any, on the Securities
as and when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of the holders of
the Securities and creditors of the Corporation, as the case may be, other than
the holders of Senior Indebtedness of the Corporation, as the case may be, nor
shall anything herein or therein prevent the Debenture Trustee or the holder of
any Security from exercising all remedies otherwise permitted by applicable law
upon default under the Indenture, subject to the rights, if any, under this
Article XV of the holders of such Senior Indebtedness in respect of cash,
property or securities of the Corporation, as the case may be, received upon the
exercise of any such remedy.
Upon any payment or distribution of assets of the Corporation referred to
in this Article XV, the Debenture
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Trustee, subject to the provisions of Article VI of this Indenture, and the
Securityholders 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 Debenture
Trustee or to the Securityholders, for the purposes of ascertaining the Persons
entitled to participate in such distribution, the holders of Senior Indebtedness
and other indebtedness of the Corporation, 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 XV.
SECTION 15.05. Debenture Trustee to Effectuate Subordination
Each Securityholder by such Securityholder's acceptance thereof authorizes
and directs the Debenture Trustee on such Securityholder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article XV and appoints the Debenture Trustee such
Securityholder's attorney-in-fact for any and all such purposes.
SECTION 15.06. Notice by the Corporation
The Corporation shall give prompt written notice to a Responsible Officer
of the Debenture Trustee of any fact known to the Corporation that would
prohibit the making of any payment of monies to or by the Debenture Trustee in
respect of the Securities pursuant to the provisions of this Article XV.
Notwithstanding the provisions of this Article XV or any other provision of this
Indenture, the Debenture Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment of monies
to or by the Debenture Trustee in respect of the Securities pursuant to the
provisions of this Article XV, unless and until a Responsible Officer of the
Debenture Trustee shall have received written notice thereof from the
Corporation or a holder or holders of Senior Indebtedness or from any trustee
therefor; and before the receipt of any such written notice, the Debenture
Trustee, subject to the provisions of Article VI of this Indenture, shall be
entitled in all respects to assume that no such facts exist; provided, however,
that if the Debenture Trustee shall not have received the notice provided for in
this Section 15.06 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 premium, if any) or
interest (including Compounded Interest and Additional Sums, if any) and
Liquidated Damages, if any, on any Security), then, anything herein contained to
the contrary notwithstanding, the Debenture Trustee shall have full power and
authority to receive such money and to apply the same to the purposes for which
they were received, and shall not be affected by any notice to the contrary that
may be received by it within two Business Days prior to such date.
The Debenture Trustee, subject to the provisions of Article VI of this
Indenture, shall be entitled to conclusively rely on a written notice delivered
to it by a Person representing himself to be a holder of Senior Indebtedness of
the Corporation (or a trustee on behalf of such holder), as the case may be, to
establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee on behalf of any such holder or holders. In the event
that the Debenture Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of such Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article XV, the Debenture Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Debenture Trustee as to the amount of such
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article XV,
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and, if such evidence is not furnished, the Debenture Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
Upon any payment or distribution of assets of the Corporation referred
to in this Article XV, the Debenture Trustee and the Securityholders shall be
entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding-up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, liquidating trustee,
custodian, receiver, assignee for the benefit of creditors, agent or other
person making such payment or distribution, delivered to the Debenture Trustee
or to the Securityholders, for the purpose of ascertaining the persons entitled
to participate in such payment or distribution, the holders of Senior
Indebtedness and other indebtedness of the Corporation, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article XV.
SECTION 15.07. Rights of the Debenture Trustee; Holders of Senior
Indebtedness
The Debenture Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article XV in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Debenture
Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the Corporation,
the Debenture Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article XV, and
no implied covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture against the Debenture Trustee.
The Debenture Trustee shall not be deemed to owe any fiduciary duty to the
holders of such Senior Indebtedness and, subject to the provisions of Article VI
of this Indenture, the Debenture Trustee shall not be liable to any holder of
such Senior Indebtedness if it shall pay over or deliver to Securityholders, the
Corporation or any other Person money or assets to which any holder of such
Senior Indebtedness shall be entitled by virtue of this Article XV or otherwise.
Nothing in this Article XV shall apply to claims of, or payments to,
the Debenture Trustee under or pursuant to Section 6.06.
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SECTION 15.08. Subordination May Not Be Impaired
No right of any present or future holder of any Senior Indebtedness of
the Corporation 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 Corporation, as the case may be, or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Corporation, as the
case may be, with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness of the Corporation may, at any time and from
time to time, without the consent of or notice to the Debenture Trustee or the
Securityholders, without incurring responsibility to the Securityholders and
without impairing or releasing the subordination provided in this Article XV or
the obligations hereunder of the holders of the Securities to the holders of
such Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, such Senior Indebtedness, or otherwise amend or supplement in any manner
such Senior Indebtedness or any instrument evidencing the same or any agreement
under which such Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing such Senior Indebtedness; (iii) release any Person liable in any manner
for the collection of such Senior Indebtedness; and (iv) exercise or refrain
from exercising any rights against the Corporation, as the case may be, and any
other Person.
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.01. Extension of Interest Payment Period
So long as no Event of Default has occurred and is continuing, the
Corporation shall have the right, at any time and from time to time during the
term of the Securities, to defer payments of interest by extending the interest
payment period of such Securities for a period not exceeding 10 consecutive
semi-annual periods, including the first such semi-annual period during such
extension period (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 shall end on a date other than an Interest
Payment Date or extend beyond the Maturity Date. To the
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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 16.01, will bear interest thereon at the Coupon Rate compounded
semi-annually for each semi-annual period of the Extended Interest Payment
Period ("Compounded Interest"). At the end of the Extended Interest Payment
Period, the Corporation shall pay all interest accrued and unpaid on the
Securities, including any Additional Sums and Compounded Interest (together,
"Deferred Interest") that shall be payable to the holders of the Securities in
whose names the Securities are registered in the Security Register on the first
record date preceding the end of the Extended Interest Payment Period. Before
the termination of any Extended Interest Payment Period, the Corporation may
further defer payments of interest by further extending such period, provided
that such period, together with all such previous and further extensions within
such Extended Interest Payment Period, shall not exceed 10 consecutive
semi-annual periods, including the first such semi-annual period during such
Extended Interest Payment Period, end on a date other than an Interest Payment
Date or extend beyond the Maturity Date of the Securities. Upon the termination
of any Extended Interest Payment Period and the payment of all Deferred Interest
then due, the Corporation 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
Corporation may prepay at any time all or any portion of the interest accrued
during an Extended Interest Payment Period.
SECTION 16.02. Notice of Extension
(a) If the Property Trustee is the only registered holder of the
Securities at the time the Corporation selects an Extended Interest Payment
Period, the Corporation shall give written notice to the Administrative
Trustees, the Property Trustee and the Debenture Trustee of its selection of
such Extended Interest Payment Period five Business Days before the earlier of
(i) the next succeeding date on which Distributions on the Trust Securities
issued by the Trust are payable, or (ii) the date the Trust is required to give
notice of the record date, or the date such Distributions are payable, to any
national securities exchange or to holders of the Capital Securities issued by
the Trust, but in any event at least five Business Days before such record date.
(b) If the Property Trustee is not the only holder of the Securities at
the time the Corporation selects an Extended Interest Payment Period, the
Corporation shall give the holders of the Securities and the Debenture Trustee
written notice of its selection of such Extended Interest Payment Period at
least 10
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Business Days before the earlier of (i) the next succeeding Interest Payment
Date, or (ii) the date the Corporation is required to give notice of the record
or payment date of such interest payment to any national securities exchange.
(c) The semi-annual period in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 16.02 shall be counted as one of the 10
semi-annual periods permitted in the maximum Extended Interest Payment Period
permitted under Section 16.01.
Wilmington Trust Company hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers thereunto duly authorized, as of the
day and year first above written.
EAGLE FINANCIAL CORP.
By
-----------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
as Debenture Trustee
By
------------------------------
Name:
Title:
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EXHIBIT A
(FORM OF FACE OF SECURITY)
[IF THE SECURITY IS A GLOBAL SECURITY, INSERT: THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF
THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY
A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL IN AS MUCH AS SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS OR ANY OTHER
APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE
DATE HEREOF AND THE LAST DATE ON WHICH THE CORPORATION OR ANY "AFFILIATE" OF THE
CORPORATION WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY)
ONLY (A) TO THE CORPORATION, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS SECURITY
IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL
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BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT
IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE
CORPORATION PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D)
OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR
OTHER INFORMATION SATISFACTORY TO THE CORPORATION, AND (ii) PURSUANT TO CLAUSE
(D), TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
REVERSE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEREE TO THE
CORPORATION. SUCH HOLDER FURTHER AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND.
THE SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING
AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000 (100 SECURITIES). ANY
SUCH TRANSFER OF SECURITIES IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF
LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
ANY SUCH TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH SECURITIES FOR
ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT OF PRINCIPAL, PREMIUM (IF
ANY) OR INTEREST OF SUCH SECURITIES, AND SUCH TRANSFEREE SHALL BE DEEMED TO HAVE
NO INTEREST WHATSOEVER IN SUCH SECURITIES. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT EITHER (i) IT IS NOT
AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA") OR (ii) THE ACQUISITION AND HOLDING OF THIS
SECURITY BY IT IS NOT PROHIBITED BY EITHER SECTION 406 OF ERISA OR SECTION 4975
OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR EXEMPT FROM ANY SUCH
PROHIBITION.
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No. CUSIP No. __
EAGLE FINANCIAL CORP.
SERIES A 10% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE APRIL 1, 2027
Eagle Financial Corp., a Delaware corporation (the "Corporation", which
term includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ______________________________ or
registered assigns, the principal sum of $___________ Dollars on April 1, 2027
(the "Maturity Date"), unless previously prepaid, and to pay interest on the
outstanding principal amount hereof from April 1, 1997, 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, semi-annually (subject to deferral
as set forth herein) in arrears on April 1 and October 10 of each year,
commencing October 15, 1997, at the rate of 10% per annum until the principal
hereof shall have become due and payable, and on any overdue principal and
premium, if any, 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 semi-annually. 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 and, for any period less than a full
calendar month, the number of days elapsed in such month. In the event that any
date on which the principal of (or premium, if any) or interest on this Security
is payable is not a Business Day, then the payment 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 next
succeeding Business Day falls in the next calendar year, then 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. Pursuant to the Indenture, in certain
circumstances the Corporation will be required to pay Additional Sums and
Compounded Interest (each as defined in the Indenture) with respect to this
Security. Pursuant to the Registration Rights Agreement, in certain limited
circumstances the Corporation will be required to pay Liquidated Damages (as
defined in the Registration Rights Agreement) with respect to this Security.
The interest installment so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be paid to
the Person in whose name this Security (or one or more Predecessor Securities,
as defined
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in said Indenture) is registered at the close of business on the
regular record date for such interest installment, which shall be at the close
of business on the 15th day of the month preceding the month in which the
relevant interest payment date falls. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
holders on such regular record date and may be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the close
of business on a special record date to be fixed by the Debenture Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
holders of Securities not less than 10 days prior to such special record date,
or may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
The principal of (and premium, if any) and interest (including Compounded
Interest and Additional Sums, if any) and Liquidated Damages, if any, on this
Security shall be payable at the office or agency of the Debenture Trustee
maintained for that purpose in any coin or currency of the United States of
America that at the time of payment is legal tender for payment of public and
private debts; provided, however, that, payment of interest may be made at the
option of the Corporation by (i) check mailed to the holder at such address as
shall appear in the Security Register or (ii) by transfer to an account
maintained by the Person entitled thereto, provided that proper written transfer
instructions have been received by the relevant record date. Notwithstanding the
foregoing, so long as the Holder of this Security is the Property Trustee, the
payment of the principal of (and premium, if any) and interest (including
Compounded Interest and Additional Sums, if any) and Liquidated Damages, if any,
on this Security will be made at such place and to such account as may be
designated by the Property Trustee.
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Debenture 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 Debenture Trustee his or her
attorney-in-fact for any and all such purposes. Each holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness,
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whether now outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.
This Security shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Debenture Trustee.
The provisions of this Security are continued on the reverse side hereof
and such provisions shall for all purposes have the same effect as though fully
set forth at this place.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly
executed and sealed this 1st day of April, 1997.
EAGLE FINANCIAL CORP.
By:
--------------------------------
Name:
Title:
Attest:
By:
---------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Debenture Trustee
By
-------------------
Authorized Signatory
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(FORM OF REVERSE OF SECURITY)
This Security is one of the Securities of the Corporation (herein
sometimes referred to as the "Securities"), specified in the Indenture, all
issued or to be issued under and pursuant to an Indenture, dated as of April 1,
1997 (the "Indenture"), duly executed and delivered between the Corporation and
Wilmington Trust Company, as Debenture Trustee (the "Debenture Trustee"), to
which Indenture reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Debenture Trustee, the Corporation and the holders of the Securities.
Upon the occurrence and continuation of a Special Event prior to March 15,
2007 (the "Initial Optional Prepayment Date"), the Corporation shall have the
right, at any time within 90 days following the occurrence of such Special
Event, to prepay this Security in whole (but not in part) at the Special Event
Prepayment Price. "Special Event Prepayment Price" shall mean, with respect to
any prepayment of the Securities following a Special Event, an amount in cash
equal to the Make Whole Amount. The "Make Whole Amount" shall mean an amount
equal to the greater of (i) 100% of the principal amount to be prepaid or (ii)
the sum, as determined by a Quotation Agent, of the present values of remaining
scheduled payments of principal and interest on the Securities, discounted to
the prepayment date on a semi-annual basis (assuming a 360-day year consisting
of twelve 30-day months) at the Adjusted Treasury Rate, plus, in the case of
each of clauses (i) and (ii), any accrued and unpaid interest thereon (including
Compounded Interest and Additional Sums, if any) and Liquidated Damages, if any,
to the date of such prepayment.
In addition, the Corporation shall have the right to prepay this Security,
in whole or in part, at any time on or after the Initial Optional Prepayment
Date (an "Optional Prepayment"), upon not less than 30 days and not more than 60
days' notice, at the prepayment prices set forth below plus, in each case,
accrued and unpaid interest thereon (including Additional Sums and Compounded
Interest, if any) and Liquidated Damages, if any, to the applicable date of
prepayment (the "Optional Prepayment Price") if prepaid during the 12-month
period beginning April 1 of the years indicated below.
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Percentage
Year of Principal
2007 105.0%
2008 104.5%
2009 104.0%
2010 103.5%
2011 103.0%
2012 102.5%
2013 102.0%
2014 101.5%
2015 101.0%
2016 100.5%
2017 and thereafter 100.0%
The Optional Prepayment Price or the Special Event Prepayment Price, as
the case requires, shall be paid prior to 12:00 noon, New York time, on the date
of such prepayment or at such earlier time as the Corporation determines,
provided, that the Corporation shall deposit with the Debenture Trustee an
amount sufficient to pay the applicable Prepayment Price by 10:00 a.m. New York
time on the date such Prepayment Price is to be paid. Any prepayment pursuant to
this paragraph will be made upon not less than 30 days nor more than 60 days
notice. If the Securities are only partially prepaid by the Corporation pursuant
to an Optional Prepayment, the particular Securities to be prepaid shall be
selected on a pro rata basis not more than 60 days prior to the date fixed for
prepayment from the outstanding Securities not previously called for prepayment,
provided, however, that with respect to Securityholders that would be required
to hold Securities with an aggregate principal amount of less than $100,000 but
more than an aggregate principal amount of zero as a result of such pro rata
prepayment, the Corporation shall prepay Securities of each such Securityholder
so that after such prepayment such Securityholder shall hold Securities either
with an aggregate principal amount of at least $100,000 or such Securityholder
no longer holds any Securities and shall use such method (including, without
limitation, by lot) as the Corporation shall deem fair and appropriate,
provided, further, that any such proration may be made on the basis of the
aggregate principal amount of Securities held by each Securityholder thereof and
may be made by making such adjustments as the Corporation deems fair and
appropriate in order that only Securities in denominations of $1,000 or integral
multiples thereof shall be prepaid.
In the event of prepayment of this Security in part only, a new Security
or Securities for the portion hereof that has not been prepaid will be issued in
the name of the holder hereof upon the cancellation hereof.
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Notwithstanding the foregoing, any prepayment of Securities by the
Corporation shall be subject to the prior approval of the Board of Governors of
the Federal Reserve System (the "Federal Reserve"), if such approval is then
required under applicable capital guidelines or policies of the Federal Reserve,
and the receipt of any other required regulatory approvals.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Securities 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 Corporation and the
Debenture Trustee, with the consent of the holders of a majority in aggregate
principal amount of the Securities at the time outstanding, as defined in the
Indenture, to execute supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of modifying in any manner the rights of the holders of the
Securities; provided, however, that no such supplemental indenture shall,
without the consent of each holder of Securities then outstanding and affected
thereby, (i) change the Maturity Date of any Security, or reduce the rate or
extend the time of payment of interest thereon (subject to Article XVI of the
Indenture), or reduce the principal amount thereof, or reduce any amount payable
on prepayment thereof, or make the principal thereof or any interest or premium
thereon payable in any coin or currency other than that provided in the
Securities, or impair or affect the right of any holder of Securities to
institute suit for payment thereof, or (ii) reduce the aforesaid percentage of
Securities, the holders of which are required to consent to any such
supplemental indenture. The Indenture also contains provisions permitting the
holders of a majority in aggregate principal amount of the Securities at the
time outstanding affected thereby, on behalf of all of the holders of the
Securities, 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 premium, if
any, or interest on any of the Securities or a default in respect of any
covenant or provision under which the Indenture cannot be modified or amended
without the consent of each holder of Securities then outstanding. Any such
consent or waiver by the holder of this Security (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such Holder and upon all
future holders and owners of this Security and of any Security 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 Security.
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No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Corporation, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest (including Compounded Interest and Additional Sums, if any) and
Liquidated Damages, if any, on this Security at the time and place and at the
rate and in the money herein prescribed.
So long as no Event of Default shall have occurred and be continuing, the
Corporation shall have the right, at any time and from time to time during the
term of the Securities, to defer payments of interest by extending the interest
payment period of such Securities for a period not exceeding 10 consecutive
semi-annual periods, including the first such semi-annual period during such
extension period, and not extending beyond the Maturity Date of the Securities
(an "Extended Interest Payment Period") or ending on a date other than an
Interest Payment Date, at the end of which period the Corporation shall pay all
interest then accrued and unpaid (together with interest thereon at the rate
specified for the Securities to the extent that payment of such interest is
enforceable under applicable law). Before the termination of any such Extended
Interest Payment Period, the Corporation may further defer payments of interest
by further extending such Extended Interest Payment Period, provided that such
Extended Interest Payment Period, together with all such previous and further
extensions within such Extended Interest Payment Period, (i) shall not exceed 10
consecutive semi-annual periods, including the first semi-annual period during
such Extended Interest Payment Period, (ii) shall not end on any date other than
an Interest Payment Date, and (iii) shall not extend beyond the Maturity Date of
the Securities. Upon the termination of any such Extended Interest Payment
Period and the payment of all accrued and unpaid interest and any additional
amounts then due, the Corporation may commence a new Extended Interest Payment
Period, subject to the foregoing requirements.
The Corporation has agreed that it will not (i) declare or pay any
dividends or distributions on, or prepay, purchase, acquire, or make a
liquidation payment with respect to, any of the Corporation's capital stock,
(ii) make any payment of principal, interest or premium, if any, on or repay or
repurchase or redeem any debt securities of the Corporation that rank pari passu
with or junior in right of payment to the Securities or (iii) make any guarantee
payments with respect to any guarantee by the Corporation of the debt securities
of any Subsidiary of the Corporation (including Other Guarantees) if such
guarantee ranks pari passu with or junior in right of payment to the Securities
(other than (a) dividends or distributions in shares of, or options, warrants or
rights to subscribe for or purchase shares of, Common Stock of the Corporation,
(b) any declaration of a
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dividend in connection with the implementation of a stockholder's rights plan,
or the issuance of stock under any such plan in the future, or the prepayment or
repurchase of any such rights pursuant thereto, (c) payments under the Capital
Securities Guarantee, (d) the purchase of fractional shares resulting from a
reclassification of the Corporation's capital stock, (e) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, and (f) purchases of Common Stock related to the
issuance of Common Stock or rights under any of the Corporation's benefit plans
for its directors, officers or employees or any of the Corporation's dividend
reinvestment plans), if at such time (1) there shall have occurred any event of
which the Corporation has actual knowledge that (a) is, or with the giving of
notice or the lapse of time, or both, would constitute, an Event of Default and
(b) in respect of which the Corporation shall not have taken reasonable steps to
cure, (2) if such Securities are held by the Property Trustee, the Corporation
shall be in default with respect to its payment obligations under the Capital
Securities Guarantee or (3) the Corporation shall have given notice of its
election of the exercise of its right to extend the interest payment period and
any such extension shall be continuing.
Subject to (i) the receipt of any required regulatory approval, and (ii)
the receipt by the Corporation of an opinion of counsel to the effect that such
distribution will not be a taxable event to holders of Capital Securities, the
Corporation will have the right at any time to liquidate the Trust and cause the
Securities to be distributed to the holders of the Trust Securities in
liquidation of the Trust.
The Securities are issuable only in registered form without coupons in
minimum denominations of $100,000 and multiples of $1,000 in excess thereof. As
provided in the Indenture and subject to the transfer restrictions limitations
as may be contained herein and therein from time to time, this Security is
transferable by the holder hereof on the Security Register of the Corporation,
upon surrender of this Security for registration of transfer at the office or
agency of the Corporation in New York, New York accompanied by a written
instrument or instruments of transfer in form satisfactory to the Corporation or
the Debenture Trustee duly executed by the holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of authorized
denominations and for the same aggregate principal amount and series will be
issued to the designated transferee or transferees. No service charge will be
made for any such registration of transfer, but the Corporation may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in relation thereto.
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Prior to due presentment for registration of transfer of this Security,
the Corporation, the Debenture Trustee, any authenticating agent, any paying
agent, any transfer agent and the registrar may deem and treat the holder hereof
as the absolute owner hereof (whether or not this Security shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone other
than the security registrar for the Securities) for the purpose of receiving
payment of or on account of the principal hereof and premium, if any, and
(subject to the Indenture) interest due hereon and for all other purposes, and
neither the Corporation nor the Debenture Trustee nor any authenticating agent
nor any paying agent nor any transfer agent nor any registrar shall be affected
by any notice to the contrary.
No recourse shall be had for the payment of the principal of or premium,
if any, or interest on this Security, 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 Corporation or of any predecessor or successor Person, 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.
All terms used in this Security that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PROVISIONS THEREOF.
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