JUNIOR SUBORDINATED INDENTURE between HARLEYSVILLE NATIONAL CORPORATION and WILMINGTON TRUST COMPANY, as Trustee _____________________ Dated as of August 22, 2007 _____________________
Exhibit 10.34
|
between
HARLEYSVILLE
NATIONAL CORPORATION
and
WILMINGTON
TRUST COMPANY,
as
Trustee
_____________________
Dated
as of August 22, 2007
_____________________
|
TABLE
OF CONTENTS
Page
ARTICLE
I
Definitions
and Other Provisions of General Application
| SECTION 1.1. | Definitions..........................................................................................................................................................................1 |
| SECTION 1.2. | Compliance Certificate and Opinions................................................................................................................................10 |
| SECTION 1.3. | Forms of Documents Delivered to Trustee........................................................................................................................11 |
| SECTION 1.4 | Acts of Holders...............................................................................................................................................................12 |
| SECTION 1.5. | Notices, Etc.....................................................................................................................................................................14 |
| SECTION 1.6. | Notice to Holders; Waiver. .............................................................................................................................................14 |
| SECTION 1.7. | Effect of Headings and Table of Contents. .......................................................................................................................14 |
| SECTION 1.8. | Successors and Assigns...................................................................................................................................................15 |
| SECTION 1.9. | Separability Clause..........................................................................................................................................................15 |
| SECTION 1.10. | Benefits of Indenture........................................................................................................................................................15 |
| SECTION 1.11. | Governing Law................................................................................................................................................................15 |
| SECTION 1.12. | Submission to Jurisdiction.................................................................................................................................................15 |
| SECTION 1.13. | Non-Business Days.........................................................................................................................................................15 |
ARTICLE
II
Security
Forms
| SECTION 2.1. |
Form
of
Security................................................................................................................................................................16
|
| SECTION 2.2. |
Restricted
Legend..............................................................................................................................................................16
|
| SECTION 2.3. |
Form
of Trustee’s Certificate of
Authentication....................................................................................................................16
|
| SECTION 2.4. |
Temporary
Securities..........................................................................................................................................................16
|
| SECTION 2.5. |
Definitive
Securities............................................................................................................................................................17
|
ARTICLE
III
The
Securities
| SECTION 3.1. | Payment of Principal and Interest..........................................................................................................................................17 |
| SECTION 3.2. | Denominations......................................................................................................................................................................19 |
| SECTION 3.3. | Execution, Authentication, Delivery and Dating......................................................................................................................19 |
| SECTION 3.4. | Global Securities...................................................................................................................................................................20 |
| SECTION 3.5. | Registration, Transfer and Exchange Generally.......................................................................................................................22 |
| SECTION 3.6. | Mutilated, Destroyed, Lost and Stolen Securities...................................................................................................................23 |
| SECTION 3.7. | Persons Deemed Owners.....................................................................................................................................................24 |
| SECTION 3.8. | Cancellation..........................................................................................................................................................................24 |
| SECTION 3.9. | Deferrals of Interest Payment Dates......................................................................................................................................24 |
| SECTION 3.10. | Right of Set-Off....................................................................................................................................................................25 |
| SECTION 3.11. | Agreed Tax Treatment..........................................................................................................................................................25 |
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|
SECTION
3.12.
|
CUSIP Numbers.................................................................................................................................................................25 |
ARTICLE
IV
Satisfaction
and Discharge
| SECTION 4.1. | Satisfaction and Discharge of Indenture....................................................................................................................................26 |
| SECTION 4.2. | Application of Trust Money.....................................................................................................................................................27 |
ARTICLE
V
Remedies
| SECTION 5.1. | Events of Default......................................................................................................................................................................27 |
| SECTION 5.2. | Acceleration of Maturity; Rescission and Annulment..................................................................................................................28 |
| SECTION 5.3. | Collection of Indebtedness and Suits for Enforcement by Trustee...............................................................................................29 |
| SECTION 5.4. | Trustee May File Proofs of Claim.............................................................................................................................................30 |
| SECTION 5.5. | Trustee May Enforce Claim Without Possession of Securities....................................................................................................30 |
| SECTION 5.6. | Application of Money Collected...............................................................................................................................................31 |
| SECTION 5.7. | Limitation on Suits....................................................................................................................................................................31 |
| SECTION 5.8. | Unconditional Right of Holders to Receive Principal, Premium and Interest; Direct Action by Holders of Preferred Securities......32 |
| SECTION 5.9. | Restoration of Rights and Remedies..........................................................................................................................................32 |
| SECTION 5.10. | Rights and Remedies Cumulative...............................................................................................................................................32 |
| SECTION 5.11. | Delay or Omission Not Waiver.................................................................................................................................................33 |
| SECTION 5.12. | Control by Holders...................................................................................................................................................................33 |
| SECTION 5.13. | Waiver of Past Defaults............................................................................................................................................................33 |
| SECTION 5.14 | Undertaking for Costs..............................................................................................................................................................34 |
| SECTION 5.15. | Waiver of Usury, Stay or Extension Laws.................................................................................................................................34 |
ARTICLE
VI
The Trustee
| SECTION 6.1. | Corporate Trustee Required.....................................................................................................................................................34 |
| SECTION 6.2. | Certain Duties and Responsibilities............................................................................................................................................35 |
| SECTION 6.3. | Notice of Defaults....................................................................................................................................................................36 |
| SECTION 6.4. | Certain Rights of Trustee..........................................................................................................................................................36 |
| SECTION 6.5. | May Hold Securities.................................................................................................................................................................38 |
| SECTION 6.6. | Compensation; Reimbursement; Indemnity................................................................................................................................38 |
| SECTION 6.7. | Resignation and Removal; Appointment of Successor................................................................................................................39 |
| SECTION 6.8 | Acceptance of Appointment by Successor................................................................................................................................40 |
| SECTION 6.9 | Merger, Conversion, Consolidation or Succession to Business...................................................................................................40 |
| SECTION 6.10. | Not Responsible for Recitals or Issuance of Securities...............................................................................................................41 |
| SECTION 6.11. | Appointment of Authenticating Agent........................................................................................................................................41 |
ARTICLE
VII
Holders’ Lists and Reports by Trustee and Company
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| SECTION 7.1. | Company to Furnish Trustee Names and Addresses of Holders.................................................................................................42 |
| SECTION 7.2 | Preservation of Information, Communications to Holders...........................................................................................................43 |
| SECTION 7.3. | Reports by Company and Trustee.............................................................................................................................................43 |
ARTICLE
VIII
Consolidation,
Merger, Conveyance, Transfer or Lease
| SECTION 8.1 | Company May Consolidate, Etc., Only on Certain Terms..........................................................................................................43 |
| SECTION 8.2. | Successor Company Substituted...............................................................................................................................................43 |
ARTICLE
IX
Supplemental
Indentures
| SECTION 9.1. | Supplemental Indentures without Consent of Holders................................................................................................................43 |
| SECTION 9.2. | Supplemental Indentures with Consent of Holders.....................................................................................................................43 |
| SECTION 9.3. | Execution of Supplemental Indentures.......................................................................................................................................43 |
| SECTION 9.4. | Effect of Supplemental Indentures.............................................................................................................................................43 |
| SECTION 9.5. | Reference in Securities to Supplemental Indentures....................................................................................................................43 |
ARTICLE
X
Covenants
| SECTION 10.1. | Payment of Principal, Premium and Interest...............................................................................................................................43 |
| SECTION 10.2. | Money for Security Payments to be Held in Trust......................................................................................................................43 |
| SECTION 10.3. | Statement as to Compliance......................................................................................................................................................43 |
| SECTION 10.4. | Calculation Agent.....................................................................................................................................................................43 |
| SECTION 10.5. | Additional Tax Sums................................................................................................................................................................43 |
| SECTION 10.6. | Additional Covenants...............................................................................................................................................................43 |
| SECTION 10.7. | Waiver of Covenants................................................................................................................................................................43 |
| SECTION 10.8. | Treatment of Securities.............................................................................................................................................................43 |
ARTICLE
XI
Redemption
of Securities
| SECTION 11.1. | Optional Redemption................................................................................................................................................................43 |
| SECTION 11.2. | Special Event Redemption........................................................................................................................................................43 |
| SECTION 11.3. | Election to Redeem; Notice to Trustee......................................................................................................................................43 |
| SECTION 11.4. | Selection of Securities to be Redeemed.....................................................................................................................................43 |
| SECTION 11.5. | Notice of Redemption..............................................................................................................................................................43 |
| SECTION 11.6. | Deposit of Redemption Price....................................................................................................................................................43 |
| SECTION 11.7. | Payment of Securities Called for Redemption............................................................................................................................43 |
ARTICLE
XII
Subordination
of Securities
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| SECTION 12.1. | Securities Subordinate to Senior Debt.........................................................................................................................................43 |
| SECTION 12.2 | No Payment When Senior Debt in Default; Payment Over of Proceeds Upon Dissolution, Etc......................................................43 |
| SECTION 12.3. | Payment Permitted If No Default.................................................................................................................................................43 |
| SECTION 12.4. | Subrogation to Rights of Holders of Senior Debt..........................................................................................................................43 |
| SECTION 12.5. | Provisions Solely to Define Relative Rights...................................................................................................................................43 |
| SECTION 12.6. | Trustee to Effectuate Subordination.............................................................................................................................................43 |
| SECTION 12.7. | No Waiver of Subordination Provisions.......................................................................................................................................43 |
| SECTION 12.8. | Notice to Trustee........................................................................................................................................................................43 |
| SECTION 12.9. | Reliance on Judicial Order or Certificate of Liquidating Agent......................................................................................................43 |
| SECTION 12.10 | Trustee Not Fiduciary for Holders of Senior Debt........................................................................................................................43 |
| SECTION 12.11. | Rights of Trustee as Holder of Senior Debt; Preservation of Trustee’s Rights……………............................................................43 |
| SECTION 12.12. | Article Applicable to Paying Agents.............................................................................................................................................43 |
SCHEDULES
Schedule
A Determination
of LIBOR
Exhibit
A Form
of Junior Subordinated Note
Exhibit
B Form
of Financial Officer’s Certificate
Exhibit
C Form
of Officers’ Certificate pursuant to Section 10.3
-iv-
Junior
Subordinated Indenture, dated as of August 22, 2007, between Harleysville
National Corporation, a Pennsylvania corporation (the “Company”), and
Wilmington Trust Company, a Delaware banking corporation, as Trustee (in such
capacity, the “Trustee”).
Recitals
of the Company
Whereas,
the Company has duly authorized the execution and delivery of this Indenture
to
provide for the issuance of its unsecured junior subordinated deferrable
interest notes (the “Securities”) to evidence loans made to the Company
of the proceeds from the issuance by HNC Statutory Trust IV, a Delaware
statutory trust (the “Trust”), of undivided preferred beneficial
interests in the assets of the Trust (the “Preferred Securities”) and
undivided common beneficial interests in the assets of the Trust (the
“Common Securities” and, collectively with the Preferred Securities,
the “Trust Securities”), and to provide the terms and conditions upon
which the Securities are to be authenticated, issued and delivered;
and
Whereas,
all things necessary to make this Indenture a valid agreement of the Company,
in
accordance with its terms, have been done.
Now,
therefore, this Indenture Witnesseth:
For
and
in consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE
I
Definitions
and Other Provisions of General Application
SECTION
1.1. Definitions.
For
all
purposes of this Indenture, except as otherwise expressly provided or unless
the
context otherwise requires:
(a) the
terms
defined in this Article I have the meanings assigned to them in this
Article I;
(b) the
words
“include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”;
(c) all
accounting terms not otherwise defined herein have the meanings assigned to
them
in accordance with GAAP;
(d) unless
the context otherwise requires, any reference to an “Article” or a “Section”
refers to an Article or a Section, as the case may be, of this
Indenture;
(e) the
words
“hereby”, “herein”, “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section
or
other subdivision;
(f) a
reference to the singular includes the plural and vice versa; and
(g) the
masculine, feminine or neuter genders used herein shall include the masculine,
feminine and neuter genders.
“Act”
when used with respect to any Holder, has the meaning specified in Section
1.4.
“Additional
Interest” means the interest, if any, that shall accrue on any amounts
payable on the Securities, the payment of which has not been made on
the applicable Interest Payment Date and which shall accrue at the rate per
annum, compounded quarterly, specified or determined as specified in such
Security.
“Additional
Tax Sums” has the meaning specified in Section 10.5.
“Additional
Taxes” means taxes, duties or other governmental charges imposed on the
Trust as a result of a Tax Event (which, for the sake of clarity, does not
include amounts required to be deducted or withheld by the Trust from payments
made by the Trust to or for the benefit of the Holder of, or any Person that
acquires a beneficial interest in, the Securities).
“Administrative
Trustee” means, with respect to the Trust, a Person identified as an
“Administrative Trustee” in the Trust Agreement, solely in its capacity as
Administrative Trustee of the Trust under the Trust Agreement and not in its
individual capacity, or its successor in interest in such capacity, or any
successor Administrative Trustee appointed as therein provided.
“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For the purposes of this definition, “control,” when used
with respect to any specified Person, means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the
foregoing.
“Applicable
Depositary Procedures” means, with respect to any transfer or transaction
involving a Global Security or beneficial interest therein, the rules and
procedures of the Depositary for such Security, in each case to the extent
applicable to such transaction and as in effect from time to time.
“Authenticating
Agent” means any Person authorized by the Trustee pursuant to Section
6.11 to act on behalf of the Trustee to authenticate the
Securities.
“Board
of Directors” means the board of directors of the Company or any duly
authorized committee of that board.
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“Board
Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such
certification.
“Business
Day” means any day other than (i) a Saturday or Sunday, (ii) a day on which
banking institutions in the City of New York are authorized or required by
law
or executive order to remain closed or (iii) a day on which the Corporate Trust
Office of the Trustee is closed for business.
“Calculation
Agent” has the meaning specified in Section 10.4.
“Capital
Disqualification Event” means the receipt by the Company of an Opinion of
Counsel experienced in such matters that, as a result of an amendment to or
a
change in law, rule or regulation (including any announced prospective change)
or a change in interpretation or application of law, rule or regulation by
any
legislative body, court, governmental agency or regulatory authority, there
is
more than an insubstantial risk that within ninety (90) days of the date of
such
opinion, the aggregate liquidation amount of the Preferred Securities will
not
be eligible to be treated by the Company as “Tier 1 Capital” (or the then
equivalent) for purposes of the capital adequacy guidelines of the Federal
Reserve or other “appropriate Federal banking agency” as such term is defined in
12 U.S.C. 1813(q), which amendment, change or prospective change becomes
effective or would become effective, as the case may be, on or after the date
of
issuance of the Securities; provided, however, that the inability of
the Company to treat all or any portion of the liquidation amount of the
Preferred Securities as Tier 1 Capital shall not constitute the basis for a
Capital Disqualification Event if such inability results from the Company having
such Preferred Securities outstanding in an amount that for any reason is in
excess of the amount which may now or hereafter qualify for treatment as Tier
1
Capital under applicable capital adequacy guidelines. By way of
example, the inability of the Company to treat all or any portion of the
liquidation amount of the Preferred Securities as Tier 1 Capital as a result
of
the Final Rule on Risk-Based Capital Standards: Trust Preferred
Securities and the Definition of Capital, adopted on March 1, 2005, by the
Federal Reserve, shall not constitute the basis for a Capital Disqualification
Event.
“Common
Securities” has the meaning specified in the first recital of this
Indenture.
“Company”
means the Person named as the “Company” in the first paragraph of this
Indenture until a successor corporation shall have become such pursuant to
the
applicable provisions of this Indenture, and thereafter “Company” shall
mean such successor corporation.
“Company
Request” and “Company Order” mean, respectively, the written
request or order signed in the name of the Company by its Chairman of the Board
of Directors, its Vice Chairman of the Board of Directors, its Chief Executive
Officer, President or a Vice President, and by its Chief Financial Officer,
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and
delivered to the Trustee.
“Corporate
Trust Office” means the principal office of the Trustee at which at any
particular time its corporate trust business shall be administered, which office
at the date of this
-3-
Indenture
is located at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Capital Markets.
“Debt”
means, with respect to any Person, whether recourse is to all or a portion
of
the assets of such Person, whether currently existing or hereafter incurred
and
whether or not contingent and without duplication, (i) every obligation of
such
Person for money borrowed; (ii) every obligation of such Person evidenced by
bonds, debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or businesses;
(iii) every reimbursement obligation of such Person with respect to letters
of
credit, bankers’ acceptances or similar facilities issued for the account of
such Person; (iv) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (but excluding trade accounts
payable or other accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; (vi) all
indebtedness of such Person, whether incurred on or prior to the date of this
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; (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, such Person has guaranteed
or is responsible or liable for, directly or indirectly, as obligor or
otherwise; and (viii) any renewals, extensions, refundings, amendments or
modifications of any obligation of the type referred to in clauses (i) through
(vii).
“Defaulted
Interest” has the meaning specified in Section 3.1.
“Delaware
Trustee” means, with respect to the Trust, the Person identified as the
“Delaware Trustee” in the Trust Agreement, solely in its capacity as Delaware
Trustee of the Trust under the Trust Agreement and not in its individual
capacity, or its successor in interest in such capacity, or any successor
Delaware Trustee appointed as therein provided.
“Depositary”
means an organization registered as a clearing agency under the Exchange Act
that is designated as Depositary by the Company or any successor
thereto. DTC will be the initial Depositary.
“Depositary
Participant” means a broker, dealer, bank, other financial institution or
other Person for whom from time to time a Depositary effects book-entry
transfers and pledges of securities deposited with the Depositary.
“Distributions”
means amounts payable in respect of the Trust Securities as provided in the
Trust Agreement and referred to therein as “Distributions.”
“Dollar”
or “$” means the currency of the United States of America that, as at the time
of payment, is legal tender for the payment of public and private
debts.
“DTC”
means The Depository Trust Company, a New York corporation.
“Equity
Interests” means any of (a) the partnership interests (general or limited)
in a partnership, (b) the membership interests in a limited liability company
or
(c) the shares or stock interests (both common stock and preferred stock) in
a
corporation.
-4-
“Event
of Default” has the meaning specified in Section 5.1.
“Exchange
Act” means the Securities Exchange Act of 1934 or any statute successor
thereto, in each case as amended from time to time.
“Expiration
Date” has the meaning specified in Section 1.4.
“Extension
Period” has the meaning specified in Section 3.9.
“Federal
Reserve” means the Board of Governors of the Federal Reserve System, the
staff thereof, or a Federal Reserve Bank, acting through delegated authority,
in
each case under the rules, regulations and policies of the Federal Reserve
System, or if at any time after the execution of this Indenture any such entity
is not existing and performing the duties now assigned to it , any successor
body performing similar duties or functions.
“GAAP”
means United States generally accepted accounting principles, consistently
applied, from time to time in effect.
“Global
Security” means a Security that evidences all or part of the Securities,
the ownership and transfers of which shall be made through book entries by
a
Depositary.
“Government
Obligation” means (a) any security that is (i) a direct obligation of the
United States of America of which the full faith and credit of the United States
of America is pledged or (ii) an obligation of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of America
or
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i) or (ii),
is not callable or redeemable at the option of the issuer thereof, and (b)
any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any Government Obligation that
is
specified in clause (a) above and held by such bank for the account of the
holder of such depositary receipt, or with respect to any specific payment
of
principal of or interest on any Government Obligation that is so specified
and
held, 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
depositary receipt from any amount received by the custodian in respect of
the
Government Obligation or the specific payment of principal or interest evidenced
by such depositary receipt.
“Guarantee
Agreement” means the Guarantee Agreement executed by the Company and
Wilmington Trust Company, as Guarantee Trustee, contemporaneously with the
execution and delivery of this Indenture, for the benefit of the holders of
the
Preferred Securities, as modified, amended or supplemented from time to
time.
“Holder”
means a Person in whose name a Security is registered in the Securities
Register.
“Indenture”
means this instrument as originally executed or as it may from time to time
be
amended or supplemented by one or more amendments or indentures supplemental
hereto entered into pursuant to the applicable provisions hereof.
-5-
“Interest
Payment Date” means January 30, April 30, July 30 and October 30 of each
year, commencing on October 30, 2007, during the term of this
Indenture.
“Investment
Company Act” means the Investment Company Act of 1940 or any successor
statute thereto, in each case as amended from time to time.
“Investment
Company Event” means the receipt by the Company of an Opinion of Counsel
experienced in such matters to the effect that, as a result of the occurrence
of
a change in law or regulation (including any announced prospective change)
or a
written change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority, there
is
more than an insubstantial risk that the Trust is or, within ninety (90) days
of
the date of such opinion will be, considered an “investment company” that is
required to be registered under the Investment Company Act, which change or
prospective change becomes effective or would become effective, as the case
may
be, on or after the date of the issuance of the Securities.
“LIBOR”
has the meaning specified in Schedule A.
“LIBOR
Business Day” has the meaning specified in Schedule A.
“LIBOR
Determination Date” has the meaning specified in Schedule
A.
“Liquidation
Amount” has the meaning specified in the Trust Agreement.
“Maturity,”
when used with respect to any Security, means the date on which the principal
of
such Security or any installment of principal becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
“Major
Bank Subsidiary,” means any subsidiary of the Company that is a “major bank
subsidiary” as such term is used in the Adopting Release accompanying the Final
Rule on Risk-Based Capital Standards: Trust Preferred Securities and
the Definition of Capital, adopted on March 1, 2005, by the Federal Reserve,
and
as such term may subsequently be defined or interpreted in any rule, regulation,
written interpretation or other public issuance of the Federal
Reserve. For purposes of this definition, any “depository
institution” subsidiary of the Company within the meaning of Section 3(c) of the
Federal Deposit Insurance Act that would be considered a Major Bank Subsidiary
except for the fact that such subsidiary is not a “bank” within the meaning of
Section 3(a) of the Bank Holding Company Act of 1956, shall be deemed to be
a
Major Bank Subsidiary.
“Notice
of Default” means a written notice of the kind specified in Section
5.1(d).
“Officers’
Certificate” means a certificate signed by the Chairman of the Board, a
Vice Chairman of the Board, the Chief Executive Officer, President or a Vice
President, and by the Chief Financial Officer, Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company and delivered
to the Trustee.
-6-
“Opinion
of Counsel” means a written opinion of counsel, who may be counsel for or
an employee of the Company or any Affiliate of the Company.
“Original
Issue Date” means the date of original issuance of each
Security.
“Outstanding”
means, when used in reference to any Securities, as of the date of
determination, all Securities theretofore authenticated and delivered under
this
Indenture, except:
(i) Securities
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;
(ii) Securities
for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities;
provided, that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities
that have been paid, or in substitution for or in lieu of which other Securities
have been authenticated and delivered pursuant to the provisions of this
Indenture, unless proof satisfactory to the Trustee is presented that any such
Securities are held by Holders in whose hands such Securities are valid, binding
and legal obligations of the Company;
provided,
that, in determining whether the Holders of the requisite principal amount
of
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be Outstanding, except that,
in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities that a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned that have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the
Securities or any Affiliate of the Company or such other obligor.
Notwithstanding anything herein to the contrary, Securities initially issued
to
the Trust that are owned by the Trust shall be deemed to be Outstanding
notwithstanding the ownership by the Company or an Affiliate of any beneficial
interest in the Trust.
“Paying
Agent” means the Trustee or any Person authorized by the Company to pay the
principal of or any premium or interest on, or other amounts in respect of,
any
Securities on behalf of the Company.
“Person”
means a legal person, including any individual, corporation, company, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association, government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
-7-
“Place
of Payment” means, with respect to the Securities, the Corporate Trust
Office of the Trustee.
“Preferred
Securities” has the meaning specified in the first recital of this
Indenture.
“Predecessor
Security” of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security. For the purposes of this definition, any security
authenticated and delivered under Section 3.6 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt
as
the mutilated, destroyed, lost or stolen Security.
“Proceeding”
has the meaning specified in Section 12.2.
“Property
Trustee” means the Person identified as the “Property Trustee” in the Trust
Agreement, solely in its capacity as Property Trustee of the Trust under the
Trust Agreement and not in its individual capacity, or its successor in interest
in such capacity, or any successor Property Trustee appointed as therein
provided.
“Purchase
Agreement” means the Purchase Agreement, dated as of August 22, 2007,
executed and delivered by the Trust, the Company and the Purchaser.
“Purchaser”
means Trapeza CDO XIII, Ltd., as purchaser of the Preferred Securities pursuant
to the Purchase Agreement.
“Redemption
Date” means, when used with respect to any Security to be redeemed, the
date fixed for such redemption by or pursuant to this Indenture.
“Redemption
Price” means, when used with respect to any Security to be redeemed, in
whole or in part, the price at which such Security or portion thereof is to
be
redeemed as fixed by or pursuant to this Indenture.
“Reference
Banks” has the meaning specified in Schedule A.
“Regular
Record Date” for the interest payable on any Interest Payment Date with
respect to the Securities means the date that is fifteen (15) days preceding
such Interest Payment Date (whether or not a Business Day).
“Responsible
Officer” means, with respect to the Trustee, any Senior Vice President, any
Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, any Financial Services
Officer or Assistant Financial Services Officer, or any other officer in the
Corporate Trust Office of the Trustee with direct responsibility for
the administration of this Indenture and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of that officer’s knowledge of and familiarity with the
particular subject.
“Rights
Plan” means a plan of the Company providing for the issuance by the Company
to all holders of its Equity Interests of rights entitling the holders thereof
to subscribe for or purchase Equity Interests of the Company which rights (i)
are deemed to be transferred with such
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Equity
Interests and (ii) are also issued in respect of future issuances of such Equity
Interests, in each case until the occurrence of a specified event or
events.
“Securities”
or “Security” means any debt securities or debt security, as the case
may be, authenticated and delivered under this Indenture.
“Securities
Act” means the Securities Act of 1933 or any successor statute thereto, in
each case as amended from time to time.
“Securities
Register” and “Securities Registrar” have the respective meanings
specified in Section 3.5.
“Senior
Debt” means the principal of and any premium and interest on (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company, whether or not such claim for
post-petition interest is allowed in such proceeding) all Debt of the Company,
whether incurred on or prior to the date of this Indenture or thereafter
incurred, unless it is provided in the instrument creating or evidencing the
same or pursuant to which the same is outstanding that such obligations are
not
superior in right of payment to the Securities; provided, however, that
if the Company is subject to the regulation and supervision of an "appropriate
Federal banking agency" within the meaning of 12 U.S.C. 1813(q), the Company
shall have received the approval of such appropriate Federal banking agency
prior to issuing any such obligation if not otherwise generally approved;
provided further, that Senior Debt shall not include any other debt
securities, and guarantees in respect of such debt securities, issued to any
trust other than the Trust (or a trustee of such trust), partnership or other
entity affiliated with the Company that is a financing vehicle of the Company
(a
“financing entity”), in connection with the issuance by such financing entity of
equity securities or other securities that are treated as equity capital for
regulatory capital purposes guaranteed by the Company pursuant to an instrument
that ranks pari passu with or junior in right of payment to the Securities,
including, without limitation, the debt securities of the Company issued under
the Indentures, dated February 22, 2001, between the Company and USBank, as
trustee, March 26, 2004, between the Company and Bank of NY, as trustee, and
September 28, 2005, between the Company and Wilmington Trust Company, as
trustee.
“Special
Event” means the occurrence of a Capital Disqualification Event, an
Investment Company Event or a Tax Event.
“Special
Event Redemption Price” has the meaning specified in Section
11.2.
“Special
Record Date” for the payment of any Defaulted Interest means a date fixed
by the Trustee pursuant to Section 3.1.
“Stated
Maturity” means October 30, 2037.
“Subsidiary”
means a Person more than fifty percent (50%) of the outstanding voting stock
or
other voting interests of which is owned, directly or indirectly, by the Company
or by one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For purposes of this definition, “voting stock” means stock that
ordinarily has voting power for the
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election
of directors, whether at all times or only so long as no senior class of stock
has such voting power by reason of any contingency.
“Tax
Event” means the receipt by the Company of an Opinion of 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 political subdivision or
taxing authority thereof or therein or (b) any judicial decision or any official
administrative pronouncement (including any private letter ruling, technical
advice memorandum or field service advice) or regulatory procedure, including
any notice or announcement of intent to adopt any such pronouncement or
procedure (an “Administrative Action”), regardless of whether such judicial
decision or Administrative Action is issued to or in connection with a
proceeding involving the Company or the Trust and whether or not subject to
review or appeal, which amendment, change, judicial decision or Administrative
Action is enacted, promulgated or announced, in each case, on or after the
date
of issuance of the Securities, there is more than an insubstantial risk that
(i)
the Trust is, or will be within ninety (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 Company on the
Securities is not, or within ninety (90) days of the date of such opinion,
will
not be, deductible by the Company, in whole or in part, for United States
federal income tax purposes, or (iii) the Trust is, or will be within ninety
(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”
has the meaning specified in the first recital of this Indenture.
“Trust
Agreement” means the Amended and Restated Trust Agreement executed and
delivered by the Company, the Property Trustee, the Delaware Trustee and the
Administrative Trustees named therein, contemporaneously with the execution
and
delivery of this Indenture, for the benefit of the holders of the Trust
Securities, as amended or supplemented from time to time.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this
instrument, solely in its capacity as such and not in its individual capacity,
until a successor Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and, thereafter, “Trustee” shall mean or
include each Person who is then a Trustee hereunder.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended and as in
effect on the date as of this Indenture.
“Trust
Securities” has the meaning specified in the first recital of this
Indenture.
SECTION
1.2. Compliance
Certificate and Opinions.
(a) Upon
any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers’ Certificate stating that all conditions precedent (including covenants
compliance with which constitutes a condition precedent), if any, provided
for
in this Indenture relating to the proposed action have been complied with and
an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent (including covenants compliance with which constitutes
a
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condition
precedent), if any, have been complied with, except that, in the case of any
such application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need
be
furnished.
(b) Every
certificate or opinion delivered to the Trustee with respect to compliance
with
a condition or covenant provided for in this Indenture (other than the
certificate provided pursuant to Section 10.3) shall
include:
(i) a
statement by each individual signing such certificate or opinion that such
individual has read such covenant or condition and the definitions herein
relating thereto;
(ii) a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions of such individual contained in such
certificate or opinion are based;
(iii) a
statement that, in the opinion of such individual, he or she has made such
examination or investigation as is necessary to enable him or her to express
an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a
statement as to whether, in the opinion of such individual, such condition
or
covenant has been complied with.
SECTION
1.3. Forms
of Documents Delivered to Trustee.
(a) In
any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
(b) Any
certificate or opinion of an officer of the Company may be based, insofar as
it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or after reasonable inquiry should
know,
that the certificate or opinion or representations with respect to matters
upon
which his or her certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer
or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or after reasonable inquiry should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
(c) Where
any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
(d) Whenever,
subsequent to the receipt by the Trustee of any Board Resolution, Officers’
Certificate, Opinion of Counsel or other document or instrument, a clerical,
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typographical
or other inadvertent or unintentional error or omission shall be discovered
therein, a new document or instrument may be substituted therefor in corrected
form with the same force and effect as if originally received in the corrected
form and, irrespective of the date or dates of the actual execution and/or
delivery thereof, such substitute document or instrument shall be deemed to
have
been executed and/or delivered as of the date or dates required with respect
to
the document or instrument for which it is substituted. Without
limiting the generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall nevertheless be the
valid obligations of the Company entitled to the benefits of this Indenture
equally and ratably with all other Outstanding Securities.
SECTION
1.4. Acts
of Holders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent thereof duly appointed
in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments (including any appointment
of an agent) is or are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred
to
as the “Act” of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and conclusive
in
favor of the Trustee and the Company, if made in the manner provided in this
Section 1.4.
(b) The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by the certificate
of
any notary public or other officer authorized by law to take acknowledgments
of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him or her the execution thereof. Where such execution is by
a
Person acting in other than his or her individual capacity, such certificate
or
affidavit shall also constitute sufficient proof of his or her
authority. The fact and date of the execution by any Person of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner that the Trustee deems sufficient and
in
accordance with such reasonable rules as the Trustee may determine.
(c) The
ownership of Securities shall be proved by the Securities Register.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Security shall bind every future Holder of the
same
Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such
Security.
(e) Without
limiting the foregoing, a Holder entitled to take any action hereunder with
regard to any particular Security may do so with regard to all or any part
of
the principal amount of such Security or by one or more duly appointed agents
each of which may do so pursuant to such appointment with regard to all or
any
part of such principal amount.
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(f) Except
as
set forth in paragraph (g) of this Section 1.4, the Company may set any
day as a record date for the purpose of determining the Holders of Outstanding
Securities entitled to give, make or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by
this
Indenture to be given, made or taken by Holders of Securities. If any record
date is set pursuant to this paragraph, the Holders of Outstanding Securities
on
such record date, and no other Holders, shall be entitled to take the relevant
action, whether or not such Holders remain Holders after such record date;
provided, that no such action shall be effective hereunder unless taken
on or prior to the applicable Expiration Date (as defined below) by Holders
of
the requisite principal amount of Outstanding Securities on such record
date. Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled
and of no effect). Promptly after any record date is set pursuant to
this paragraph, the Company, at its own expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date
to be given to the Trustee in writing and to each Holder of Securities in the
manner set forth in Section 1.6.
(g) The
Trustee may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities entitled to join in the giving or making
of
(i) any Notice of Default, (ii) any declaration of acceleration or rescission
or
annulment thereof referred to in Section 5.2, (iii) any request to
institute proceedings referred to in Section 5.7(b) or (iv) any direction
referred to in Section 5.12. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities on such record date, and no
other Holders, shall be entitled to join in such notice, declaration, request
or
direction, whether or not such Holders remain Holders after such record date;
provided, that no such action shall be effective hereunder unless taken
on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities on such record date. Nothing in
this
paragraph shall be construed to prevent the Trustee from setting a new record
date for any action for which a record date has previously been set pursuant
to
this paragraph (whereupon the record date previously set shall automatically
and
with no action by any Person be canceled and of no effect). Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the
Company’s expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Company in
writing and to each Holder of Securities in the manner set forth in Section
1.6.
(h) With
respect to any record date set pursuant to paragraph (f) or (g) of this
Section 1.4, the party hereto that sets such record date may designate
any day as the “Expiration Date” and from time to time may change the
Expiration Date to any earlier or later day; provided, that no such
change shall be effective unless notice of the proposed new Expiration Date
is
given to the other party hereto in writing, and to each Holder of Securities
in
the manner set forth in Section 1.6, on or prior to the existing
Expiration Date. If an Expiration Date is not designated with respect to any
record date set pursuant to this Section 1.4, the party hereto that set
such record date shall be deemed to have initially designated the ninetieth
(90th) day
after such record date as the Expiration Date with respect thereto, subject
to
its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the one
hundred and eightieth (180th) day after
the
applicable record date.
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SECTION
1.5. Notices,
Etc.
Any
request, demand, authorization, direction, notice, consent, waiver, Act of
Holders, or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
(a) the
Trustee by any Holder, any holder of Preferred Securities or the Company shall
be sufficient for every purpose hereunder if made, given, furnished or filed
in
writing to or with the Trustee at its Corporate Trust Office,
(b) the
Company by the Trustee, any Holder or any holder of Preferred Securities shall
be sufficient for every purpose hereunder if in writing and mailed, first class,
postage prepaid, to the Company addressed to it at 000 Xxxx Xx., Xxxxxxxxxxxx,
XX 00000, Attn: Chief Financial Officer, or at any other address
previously furnished in writing to the Trustee by the Company, or
(c) the
Purchaser by the Trustee, the Company, any Holder or any holder or beneficial
owner of the Preferred Securities shall be sufficient for every purpose
hereunder if in writing and mailed, first-class, postage prepaid, to the
Purchaser at: x/x Xxxxxx Xxxxxxx Xxxxxxx, X.X. Xxx 0000 GT, Queensgate House,
South Church Street, Xxxxxx Town, Grand Cayman, Cayman Islands, or any other
address previously furnished by the Purchaser.
SECTION
1.6. Notice
to Holders; Waiver.
Where
this Indenture provides for notice to Holders of any event, such notice shall
be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first class, postage prepaid, to each Holder affected by such event
to the address of such Holder as it appears in the Securities Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. If, by reason of the suspension of or
irregularities in regular mail service or for any other reason, it shall be
impossible or impracticable to mail notice of any event to Holders when said
notice is required to be given pursuant to any provision of this Indenture,
then
any manner of giving such notice as shall be satisfactory to the Trustee shall
be deemed to be a sufficient giving of such notice. In any case where notice
to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by
the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such
waiver.
SECTION
1.7. Effect
of Headings and Table of Contents.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction of this
Indenture.
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SECTION
1.8. Successors
and Assigns.
This
Indenture shall be binding upon and shall inure to the benefit of any successor
to the Company and the Trustee, including any successor by operation of
law. Except in connection with a transaction involving the Company
that is permitted under Article VIII and pursuant to which the assignee
agrees in writing to perform the Company’s obligations hereunder, the Company
shall not assign its obligations hereunder.
SECTION
1.9. Separability
Clause.
If
any
provision in this Indenture or in the Securities shall be invalid, illegal
or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby, and there
shall
be deemed substituted for the provision at issue a valid, legal and enforceable
provision as similar as possible to the provision at issue.
SECTION
1.10. Benefits
of Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall give to any
Person, other than the parties hereto and their successors and assigns, the
holders of Senior Debt, the Holders of the Securities and, to the extent
expressly provided in Sections 5.2, 5.8, 5.9, 5.11,
5.13, 9.2 and 10.7, the holders of Preferred
Securities,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION
1.11. Governing
Law.
This
Indenture and the rights and obligations of each of the Holders, the Company
and
the Trustee shall be construed and enforced in accordance with and governed
by
the laws of the State of New York without reference to its conflict of laws
provisions (other than Section 5-1401 of the General Obligations
Law).
SECTION
1.12. Submission
to Jurisdiction.
ANY
LEGAL
ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR WITH RESPECT TO OR
ARISING OUT OF THIS INDENTURE MAY BE BROUGHT IN OR REMOVED TO THE COURTS OF
THE
STATE OF NEW YORK, IN AND FOR THE COUNTY OF NEW YORK, OR OF THE UNITED STATES
OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK (IN EACH CASE SITTING IN THE
BOROUGH OF MANHATTAN). BY EXECUTION AND DELIVERY OF THIS INDENTURE, EACH PARTY
ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS (AND COURTS OF APPEALS
THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
INDENTURE.
SECTION
1.13. Non-Business
Days.
If
any
Interest Payment Date, Redemption Date or Stated Maturity of any Security shall
not be a Business Day, then (notwithstanding any other provision of this
Indenture or the Securities) payment of interest, premium, if any, or principal
or other amounts in respect of such
-15-
Security
shall not be made on such date, but shall be made on the next succeeding
Business Day (and no interest shall accrue in respect of the amounts whose
payment is so delayed for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, until such next
succeeding Business Day) except that, if such Business Day falls in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the Interest Payment Date or Redemption Date or at the Stated
Maturity.
ARTICLE
II
Security
Forms
SECTION
2.1. Form
of Security.
Any
Security issued hereunder shall be in substantially the form attached hereto
as
Exhibit A.
SECTION
2.2. Restricted
Legend.
(a) Any
Security issued hereunder shall bear a legend in substantially the form
contained in Exhibit A attached hereto.
(b) Such
legend shall not be removed from any Security unless there is delivered to
the
Company satisfactory evidence, which may include an Opinion of Counsel, as
may
be reasonably required to ensure that any future transfers thereof may be made
without restriction under or violation of the provisions of the Securities
Act
and other applicable law. Upon provision of such satisfactory
evidence, the Company shall execute and deliver to the Trustee, and the Trustee
shall deliver, at the written direction of the Company, a Security that does
not
bear the legend.
SECTION
2.3. Form
of Trustee’s Certificate of Authentication.
The
Trustee’s certificate of authentication shall be in substantially the form
contained in Exhibit A attached hereto.
SECTION
2.4. Temporary
Securities.
(a) Pending
the preparation of definitive Securities, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
that are printed, lithographed, typewritten, mimeographed or otherwise produced,
in any denomination, substantially of the tenor of the definitive Securities
in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may
determine, as evidenced by their execution of such Securities.
(b) If
temporary Securities are issued, the Company will cause definitive Securities
to
be prepared without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities shall be exchangeable for definitive
Securities upon surrender of the temporary Securities at the office or agency
of
the Company designated for that purpose without
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charge
to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor one or more definitive Securities of any authorized
denominations having the same Original Issue Date and Stated Maturity and having
the same terms as such temporary Securities. Until so exchanged, the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
SECTION
2.5. Definitive
Securities.
The
Securities issued on the Original Issue Date shall be in definitive
form. The definitive Securities shall be printed, lithographed or
engraved, or produced by any combination of these methods, if required by any
securities exchange on which the Securities may be listed, on a steel engraved
border or steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may
be
listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
ARTICLE
III
The
Securities
SECTION
3.1. Payment
of Principal and Interest.
(a) The
unpaid principal amount of the Securities shall bear interest at a fixed rate
per annum equal to 6.35% through the Interest Payment Date in October 2012,
and
a variable rate per annum, reset quarterly, equal to LIBOR plus 1.28%
thereafter, such interest to accrue from the Original Issue Date or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, and any overdue principal, premium or Additional Tax Sums and
any
overdue installment of interest shall bear Additional Interest (to the extent
payment of such interest would be legally enforceable) at a fixed rate per
annum
equal to 6.35% through the Interest Payment Date in October 2012, and a variable
rate per annum, reset quarterly, equal to LIBOR plus 1.28% thereafter,
compounded quarterly, from the dates such amounts are due until they are paid
or
funds for the payment thereof are made available for payment.
(b) Interest
and Additional Interest on any Security that is payable, and is punctually
paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, except that interest and any Additional Interest payable on the Stated
Maturity (or any date of principal repayment upon early maturity) of the
principal of a Security or on a Redemption Date shall be paid to the Person
to
whom principal is paid. The initial payment of interest on any Security that
is
issued between a Regular Record Date and the related Interest Payment Date
shall
be payable as provided in such Security.
(c) Any
interest on any Security that is due and payable, but is not timely paid or
duly
provided for, on any Interest Payment Date for Securities (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date
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by
virtue of having been such Holder, and such Defaulted Interest may be paid
by
the Company, at its election in each case, as provided in paragraph (i) or
(ii)
below:
(i) The
Company may elect to make payment of any Defaulted Interest to the Persons
in
whose names the 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 (a “Special Record Date”), which shall be fixed
in the following manner. At least thirty (30) days prior to the date
of the proposed payment, the Company shall notify the Trustee in writing of
the
amount of Defaulted Interest proposed to be paid on each Security and the date
of the proposed payment, and at the same time the Company shall deposit with
the
Trustee an amount of money equal to the aggregate amount proposed to be paid
in
respect of such Defaulted Interest or shall make arrangements satisfactory
to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest, which shall be not more than
fifteen (15) days and not less than ten (10) days prior to the date of the
proposed payment and not less than ten (10) days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense
of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first class, postage
prepaid, to each Holder of a Security at the address of such Holder as it
appears in the Securities Register not less than ten (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 so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Securities
(or their respective Predecessor Securities) are registered on such Special
Record Date; or
(ii) The
Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange or automated
quotation system on which the Securities may be listed, traded or quoted and,
upon such notice as may be required by such exchange or automated quotation
system (or by the Trustee if the Securities are not listed), if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this
clause, such payment shall be deemed practicable by the Trustee.
(d) Payments
of interest on the Securities shall include interest accrued to but excluding
the respective Interest Payment Dates. The amount of interest payable for any
interest period shall be computed and paid on the basis of a 360-day year and
the actual number of days elapsed in the relevant interest period.
(e) Payment
of principal of, premium, if any, and interest on the Securities shall be made
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private
debts. Payments of principal, premium, if any, and interest due at
the Maturity of such Securities shall be made at the Place of Payment upon
surrender of such Securities to the Paying Agent and payments of interest shall
be made, subject to such surrender where applicable, by wire transfer at such
place and to such account at a
-18-
banking
institution in the United States as may be designated in writing to the Paying
Agent at least ten (10) Business Days prior to the date for payment by the
Person entitled thereto unless proper written wire transfer instructions have
not been received by the relevant record date, in which case such payments
shall
be made by check mailed to the address of such Person as such address shall
appear in the Security Register. Notwithstanding the foregoing, so
long as the holder of the Security is the Property Trustee, the payment of
the
principal of (and premium if any) and interest (including any overdue
installment of interest and Additional Tax Sums, if any) on the Security will
be
made at such place and to such account as may be designated by the Property
Trustee.
(f) Subject
to the foregoing provisions of this Section 3.1, each Security delivered
under this Indenture upon transfer of or in exchange for or in lieu of any
other
Security shall carry the rights to interest accrued and unpaid, and to accrue,
that were carried by such other Security.
SECTION
3.2. Denominations.
The
Securities shall be in registered form without coupons and shall be issuable
in
minimum denominations of $100,000 and any integral multiple of $1,000 in excess
thereof.
SECTION
3.3. Execution,
Authentication, Delivery and Dating.
(a) At
any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Securities in an aggregate principal amount (including
all then Outstanding Securities) not in excess of $23,196,000 executed by the
Company to the Trustee for authentication, together with a Company Order for
the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and shall be fully protected in relying upon:
(i) a
copy of
any Board Resolution relating thereto; and
(ii) an
Opinion of Counsel stating that (1) such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject
to
any conditions specified in such Opinion of Counsel, will constitute valid
and
legally binding obligations of the Company, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and to general equity
principles; (2) the Securities have been duly authorized and executed by the
Company and have been delivered to the Trustee for authentication in accordance
with this Indenture; and (3) the Securities are not required to be registered
under the Securities Act.
(b) The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman of the Board, its Chief Executive Officer, its
President or one of its Vice Presidents. The signature of any of these officers
on the Securities may be manual or facsimile. Securities bearing the
manual or facsimile signatures of individuals who were at any time the proper
officers of the Company shall bind the Company, notwithstanding that such
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individuals
or any of them have ceased to hold such offices prior to the authentication
and
delivery of such Securities or did not hold such offices at the date of such
Securities.
(c) No
Security shall be entitled to any benefit under this Indenture or be valid
or
obligatory for any purpose, unless there appears on such Security a certificate
of authentication substantially in the form provided for herein executed by
the
Trustee by the manual signature of one of its authorized officers, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation
as
provided in Section 3.8, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
(d) Each
Security shall be dated the date of its authentication.
SECTION
3.4. Global
Securities.
(a) Upon
the
election of the Holder after the Original Issue Date, which election need not
be
in writing, the Securities owned by such Holder shall be issued in the form
of
one or more Global Securities registered in the name of the Depositary or its
nominee. Each Global Security issued under this Indenture shall be registered
in
the name of the Depositary designated by the Company for such Global Security
or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(b) Notwithstanding
any other provision in this Indenture, no Global Security may be exchanged
in
whole or in part for registered Securities, and no transfer of a Global Security
in whole or in part may be registered, in the name of any Person other than
the
Depositary for such Global Security or a nominee thereof unless (i) such
Depositary advises the Trustee and the Company in writing that such Depositary
is no longer willing or able to properly discharge its responsibilities as
Depositary with respect to such Global Security, and no qualified successor
is
appointed by the Company within ninety (90) days of receipt by the Company
of
such notice, (ii) such Depositary ceases to be a clearing agency registered
under the Exchange Act and no successor is appointed by the Company within
ninety (90) days after obtaining knowledge of such event, (iii) the Company
executes and delivers to the Trustee a Company Order stating that the Company
elects to terminate the book-entry system through the Depositary or (iv) an
Event of Default shall have occurred and be continuing. Upon the
occurrence of any event specified in clause (i), (ii), (iii) or (iv) above,
the
Trustee shall notify the Depositary and instruct the Depositary to notify all
owners of beneficial interests in such Global Security of the occurrence of
such
event and of the availability of Securities to such owners of beneficial
interests requesting the same. Upon the issuance of such Securities
and the registration in the Securities Register of such Securities in the names
of the Holders of the beneficial interests therein, the Trustees shall recognize
such holders of beneficial interests as Holders.
(c) If
any
Global Security is to be exchanged for other Securities or canceled in part,
or
if another Security is to be exchanged in whole or in part for a beneficial
interest in any
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Global
Security, then either (i) such Global Security shall be so surrendered for
exchange or cancellation as provided in this Article III or (ii) the
principal amount thereof shall be reduced or increased by an amount equal to
the
portion thereof to be so exchanged or canceled, or equal to the principal amount
of such other Security to be so exchanged for a beneficial interest therein,
as
the case may be, by means of an appropriate adjustment made on the records
of
the Securities Registrar, whereupon the Trustee, in accordance with the
Applicable Depositary Procedures, shall instruct the Depositary or its
authorized representative to make a corresponding adjustment to its records.
Upon any such surrender or adjustment of a Global Security by the Depositary,
accompanied by registration instructions, the Company shall execute and the
Trustee shall authenticate and deliver any Securities issuable in exchange
for
such Global Security (or any portion thereof) in accordance with the
instructions of the Depositary. The Trustee shall not be liable for any delay
in
delivery of such instructions and may conclusively rely on, and shall be fully
protected in relying on, such instructions.
(d) Every
Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof shall
be
authenticated and delivered in the form of, and shall be, a Global Security,
unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
(e) Securities
distributed to holders of Book-Entry Preferred Securities (as defined in the
Trust Agreement) upon the dissolution of the Trust shall be distributed in
the
form of one or more Global Securities registered in the name of a Depositary
or
its nominee, and deposited with the Securities Registrar, as custodian for such
Depositary, or with such Depositary, for credit by the Depositary to the
respective accounts of the beneficial owners of the Securities represented
thereby (or such other accounts as they may direct). Securities
distributed to holders of Preferred Securities other than Book-Entry Preferred
Securities upon the dissolution of the Trust shall not be issued in the form
of
a Global Security or any other form intended to facilitate book-entry trading
in
beneficial interests in such Securities.
(f) The
Depositary or its nominee, as the registered owner of a Global Security, shall
be the Holder of such Global Security for all purposes under this Indenture
and
the Securities, and owners of beneficial interests in a Global Security shall
hold such interests pursuant to the Applicable Depositary Procedures.
Accordingly, any such owner’s beneficial interest in a Global Security shall be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Depositary
Participants. The Securities Registrar and the Trustee shall be
entitled to deal with the Depositary for all purposes of this Indenture relating
to a Global Security (including the payment of principal and interest thereon
and the giving of instructions or directions by owners of beneficial interests
therein and the giving of notices) as the sole Holder of the Security and shall
have no obligations to the owners of beneficial interests
therein. Neither the Trustee nor the Securities Registrar shall have
any liability in respect of any transfers effected by the
Depositary.
(g) The
rights of owners of beneficial interests in a Global Security shall be exercised
only through the Depositary and shall be limited to those established by law
and
agreements between such owners and the Depositary and/or its Depositary
Participants.
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(h) No
holder
of any beneficial interest in any Global Security held on its behalf by a
Depositary shall have any rights under this Indenture with respect to such
Global Security, and such Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the owner of such Global Security
for all purposes whatsoever. None of the Company, the Trustee nor any
agent of the Company or the Trustee will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a Global Security or maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by a Depositary
or
impair, as between a Depositary and such holders of beneficial interests, the
operation of customary practices governing the exercise of the rights of the
Depositary (or its nominee) as Holder of any Security.
SECTION
3.5. Registration,
Transfer and Exchange Generally.
(a) The
Trustee shall cause to be kept at the Corporate Trust Office a register (the
“Securities Register”) in which the registrar and transfer agent with
respect to the Securities (the “Securities Registrar”), subject to such
reasonable regulations as it may prescribe, shall provide for the registration
of Securities and of transfers and exchanges of Securities. The Trustee shall
at
all times also be the Securities Registrar. The provisions of
Article VI shall apply to the Trustee in its role as Securities
Registrar.
(b) Subject
to compliance with Section 2.2(b), upon surrender for registration of
transfer of any Security at the offices or agencies of the Company designated
for that purpose the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Securities of any authorized denominations of like tenor and aggregate
principal amount.
(c) At
the
option of the Holder, Securities may be exchanged for other Securities of any
authorized denominations, of like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute,
and
upon receipt thereof the Trustee shall authenticate and deliver, the Securities
that the Holder making the exchange is entitled to receive.
(d) All
Securities issued upon any transfer or exchange of Securities shall be the
valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon such transfer
or exchange.
(e) Every
Security presented or surrendered for transfer or exchange shall (if so required
by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Securities
Registrar, duly executed by the Holder thereof or such Holder’s attorney duly
authorized in writing.
(f) No
service charge shall be made to a Holder for any transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover
any
tax or other
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governmental
charge that may be imposed in connection with any transfer or exchange of
Securities.
(g) Neither
the Company nor the Trustee shall be required pursuant to the provisions of
this
Section 3.5 (i) to issue, register the transfer of or exchange any
Security during a period beginning at the opening of business fifteen (15)
days
before the day of selection for redemption of Securities pursuant to Article
XI and ending at the close of business on the day of mailing of the notice
of redemption or (ii) to register the transfer of or exchange any Security
so
selected for redemption in whole or in part, except, in the case of any such
Security to be redeemed in part, any portion thereof not to be
redeemed.
(h) The
Company shall designate an office or offices or agency or agencies where
Securities may be surrendered for registration or transfer or
exchange. The Company initially designates the Corporate Trust Office
as its office and agency for such purposes. The Company shall give
prompt written notice to the Trustee and to the Holders of any change in the
location of any such office or agency.
SECTION
3.6. Mutilated,
Destroyed, Lost and Stolen Securities.
(a) If
any
mutilated Security is surrendered to the Trustee together with such security
or
indemnity as may be required by the Company or the Trustee to save each of
them
harmless, the Company shall execute and upon receipt thereof the Trustee shall
authenticate and deliver in exchange therefor a new Security of like tenor
and
aggregate principal amount and bearing a number not contemporaneously
outstanding.
(b) If
there
shall be delivered to the Company and to the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute
and upon its written request the Trustee shall authenticate and deliver, in
lieu
of any such destroyed, lost or stolen Security, a new Security of like tenor
and
aggregate principal amount as such destroyed, lost or stolen Security, and
bearing a number not contemporaneously outstanding.
(c) If
any
such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing
a
new Security, pay such Security.
(d) Upon
the
issuance of any new Security under this Section 3.6, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
(e) Every
new
Security issued pursuant to this Section 3.6 in lieu of any mutilated,
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the mutilated, destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be
entitled to all the benefits of this Indenture equally and proportionately
with
any and all other Securities duly issued hereunder.
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(f) The
provisions of this Section 3.6 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION
3.7. Persons
Deemed Owners.
The
Company, the Trustee and any agent of the Company or the Trustee shall treat
the
Person in whose name any Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any interest on such
Security and for all other purposes whatsoever, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
SECTION
3.8. Cancellation.
All
Securities surrendered for payment, redemption, transfer or exchange shall,
if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and Securities surrendered directly to the Trustee
for
any such purpose shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder that the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
any
Securities canceled as provided in this Section 3.8, except as expressly
permitted by this Indenture. All canceled Securities shall be disposed of by
the
Trustee in accordance with its customary practices and the Trustee shall deliver
to the Company a certificate of such disposition.
SECTION
3.9. Deferrals
of Interest Payment Dates.
(a) So
long
as no Event of Default pursuant to Sections 5.1(c), (e),
(f), (g) or (h) has occurred and is continuing, the
Company
shall have the right, at any time and from time to time during the term of
the
Security, to defer the payment of interest on the Securities for a period of
up
to twenty (20) consecutive quarterly interest payment periods (each such period,
an “Extension Period”), during which Extension Period(s), no interest
on the Securities shall be due and payable (except any Additional Tax Sums
that
otherwise may be due and payable). No Extension Period shall end on a
date other than an Interest Payment Date and no Extension Period shall extend
beyond the Stated Maturity of the principal of the Securities. No
interest shall be due and payable during an Extension Period, except at the
end
thereof, but each installment of interest that would otherwise have been due
and
payable during such Extension Period shall bear Additional Interest (to the
extent payment of such interest would be legally enforceable) at a fixed rate
per annum equal to 6.35% through the Interest Payment Date in October 2012,
and
a variable rate per annum, reset quarterly, equal to LIBOR plus 1.28%
thereafter, compounded quarterly, from the dates on which amounts would have
otherwise been due and payable until paid or until funds for the payment thereof
have been made available for payment. At the end of any such
Extension Period, the Company shall pay all interest then accrued and unpaid
on
the Securities together with such Additional Interest. Prior to the
termination of any such Extension Period, the Company may extend such Extension
Period and further defer the payment of interest; provided, that (i)
all such previous and further extensions comprising such Extension Period do
not
exceed twenty (20) quarterly interest payment periods,
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(ii)
no
Extension Period shall end on a date other than an Interest Payment Date and
(iii) no Extension Period shall extend beyond the Stated Maturity of the
principal of the Securities. Upon the termination of any such
Extension Period and upon the payment of all accrued and unpaid interest and
any
Additional Interest then due on any Interest Payment Date, the Company may
elect
to begin a new Extension Period; provided, that (i) such Extension
Period does not exceed twenty (20) quarterly interest payment periods, (ii)
no
Extension Period shall end on a date other than an Interest Payment Date, (iii)
no Extension Period shall extend beyond the Stated Maturity of the principal
of
the Securities and (iv) no Event of Default pursuant to Sections 5.1(c),
(e), (f), (g) or (h) has occurred and is
continuing. The Company shall give (i) the Holders of the Securities,
(ii) the Trustee, (iii) the Property Trustee and (iv) any beneficial owner
of
the Preferred Securities reasonably identified to the Company (which
identification may be made either by such beneficial owner or by the Purchaser)
written notice of its election to begin any such Extension Period no later
than
the close of business on the fifteenth (15th) Business Day prior to the next
succeeding Interest Payment Date on which interest on the Securities would
be
payable but for such deferral.
(b) In
connection with any such Extension Period, the Company shall be subject to
the
restrictions set forth in Section 10.6(a).
SECTION
3.10. Right
of Set-Off.
Notwithstanding
anything to the contrary herein, the Company shall have the right to set off
any
payment it is otherwise required to make in respect of any Security to the
extent the Company has theretofore made, or is concurrently on the date of
such
payment making, a payment under the Guarantee Agreement relating to such
Security or to a holder of Preferred Securities pursuant to an action undertaken
under Section 5.8 of this Indenture.
SECTION
3.11. Agreed
Tax Treatment.
Each
Security issued hereunder shall provide that the Company and, by its acceptance
or acquisition of a Security or a beneficial interest therein, the Holder of,
and any Person that acquires a direct or indirect beneficial interest in, such
Security, intend and agree to treat such Security as indebtedness of the Company
for United States Federal, state and local tax purposes and to treat the
Preferred Securities (including but not limited to all payments and proceeds
with respect to the Preferred Securities) as an undivided beneficial ownership
interest in the Trust (and payments and proceeds therefrom, respectively) for
United States Federal, state and local tax purposes. The provisions
of this Indenture shall be interpreted to further this intention and agreement
of the parties.
SECTION
3.12. CUSIP
Numbers.
The
Company in issuing the Securities may use “CUSIP” numbers (if then generally in
use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption
and other similar or related materials as a convenience to Holders;
provided, that any such notice or other materials may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption or other materials
and that
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reliance
may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in
or
omission of such numbers.
ARTICLE
IV
Satisfaction
and Discharge
SECTION
4.1. Satisfaction
and Discharge of Indenture.
This
Indenture shall, upon Company Request, cease to be of further effect (except
as
to any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for and as otherwise provided in this Section
4.1) and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) either
(i) all
Securities theretofore authenticated and delivered (other than (A) Securities
that have been mutilated, destroyed, lost or stolen and that have been replaced
or paid as provided in Section 3.6 and (B) Securities for whose payment
money has theretofore been deposited in trust or segregated and held in trust
by
the Company and thereafter repaid to the Company or discharged from such trust
as provided in Section 10.2) have been delivered to the Trustee for
cancellation; or
(ii) all
such
Securities not theretofore delivered to the Trustee for
cancellation
|
(A)
|
have
become due and payable, or
|
|
(B)
|
will
become due and payable at their Stated Maturity within one year of
the
date of deposit, or
|
|
(C)
|
are
to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption
by the
Trustee in the name, and at the expense, of the
Company,
|
and
the
Company, in the case of subclause (ii)(A), (B) or (C) above, has deposited
or
caused to be deposited with the Trustee as trust funds in trust for such purpose
(x) an amount in the currency or currencies in which the Securities are payable,
(y) Government Obligations which through the scheduled payment of principal
and
interest in respect thereof in accordance with their terms will provide, not
later than the due date of any payment, money in an amount or (z) a combination
thereof, in each case sufficient, in the opinion of a nationally recognized
firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest (including any Additional Interest)
to
the date of such deposit (in the case of Securities that have become due and
payable) or to the Stated Maturity (or any date of principal repayment upon
early maturity) or Redemption Date, as the case may be;
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(b) the
Company has paid or caused to be paid all other sums payable hereunder by the
Company; and
(c) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee under Section 6.6, the obligations of the Company to any
Authenticating Agent under Section 6.11 and, if money shall have been
deposited with the Trustee pursuant to subclause (a)(ii) of this Section
4.1, the obligations of the Trustee under Section 4.2 and Section
10.2(e) shall survive.
SECTION
4.2. Application
of Trust Money.
Subject
to the provisions of Section 10.2(e), all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities and this Indenture,
to the payment in accordance with Section 3.1, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as
the
Trustee may determine, to the Persons entitled thereto, of the principal and
any
premium and interest (including any Additional Interest) for the payment of
which such money or obligations have been deposited with or received by the
Trustee. Moneys held by the Trustee under this Section 4.2
shall not be subject to the claims of holders of Senior Debt under Article
XII.
ARTICLE
V
Remedies
SECTION
5.1. Events
of Default.
“Event
of Default” means, wherever used herein with respect to the Securities, any
one of the following events (whatever the reason for such Event of Default
and
whether it shall be voluntary or involuntary or be effected by operation of
law
or pursuant to any judgment, decree or order of any court or any order, rule
or
regulation of any administrative or governmental body):
(a) default
in the payment of any interest upon any Security, including any Additional
Interest in respect thereof, when it becomes due and payable, and continuance
of
such default for a period of thirty (30) days (subject to the deferral of any
due date in the case of an Extension Period); or
(b) default
in the payment of the principal of or any premium on any Security at its
Maturity; or
(c) default
in the payment of any interest upon any Security, including any Additional
Interest in respect thereof, following the nonpayment of any such interest
for
twenty (20) or more consecutive quarterly interest payment periods;
or
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(d) default
in the performance, or breach, of any covenant or warranty of the Company in
this Indenture and continuance of such default or breach for a period of thirty
(30) days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at
least twenty five percent (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
(e) the
entry
by a court having jurisdiction in the premises of a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly filed
a
petition seeking reorganization, arrangement, adjustment or composition of
or in
respect of the Company under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any such decree
or order for relief or any such other decree or order unstayed and in effect
for
a period of sixty (60) consecutive days; or
(f) the
institution by the Company of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by the Company to the institution of bankruptcy or
insolvency proceedings against it, or the filing by the Company of a petition
or
answer or consent seeking reorganization or relief under any applicable Federal
or state bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of creditors,
or
the admission by it in writing of its inability to pay its debts generally
as
they become due and its willingness to be adjudicated a bankrupt or insolvent,
or the taking of corporate action by the Company in furtherance of any such
action; or
(g) either
(1) a court or administrative or governmental agency or body shall enter a
decree or order for the appointment of a receiver of a Major Bank Subsidiary
or
all or substantially all of its property in any liquidation, insolvency or
similar proceeding, or (2) a Major Bank Subsidiary shall consent to the
appointment of a receiver for it or all or substantially all of its property
in
any liquidation, insolvency or similar proceeding; or
(h) the
Trust
shall have voluntarily or involuntarily liquidated, dissolved, wound-up its
business or otherwise terminated its existence, except in connection with (1)
the distribution of the Securities to holders of the Preferred Securities in
liquidation of their interests in the Trust, (2) the redemption of all of the
outstanding Preferred Securities or (3) certain mergers, consolidations or
amalgamations, each as and to the extent permitted by the Trust
Agreement.
SECTION
5.2. Acceleration
of Maturity; Rescission and Annulment.
(a) If
an
Event of Default pursuant to Sections 5.1(c), (e), (f),
(g) or (h) occurs and is continuing, then and
in every such case
the Trustee or the Holders of not less than twenty five percent (25%) in
principal amount of the Outstanding Securities may declare the principal amount
of all the Securities to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by Holders), provided, that if,
upon
an Event of Xxxxxxx
-00-
xxxxxxxx
xx Xxxxxxxx 0.0(x), (x), (x), (x) or (h), the
Trustee or the Holders of not less than twenty five percent (25%) in principal
amount of the Outstanding Securities fail to declare the principal of all the
Outstanding Securities to be immediately due and payable, the holders of at
least twenty five percent (25%) in aggregate Liquidation Amount of the Preferred
Securities then outstanding shall have the right to make such declaration by
a
notice in writing to the Property Trustee, the Company and the Trustee; and
upon
any such declaration the principal amount of and the accrued interest (including
any Additional Interest) on all the Securities shall become immediately due
and
payable.
(b) At
any
time after such a declaration of acceleration with respect to the Securities
has
been made and before a judgment or decree for payment of the money due has
been
obtained by the Trustee as hereinafter provided in this Article V, the
Holders of a majority in principal amount of the Outstanding Securities, by
written notice to the Trustee, or the holders of a majority in aggregate
Liquidation Amount of the Preferred Securities, by written notice to the
Property Trustee, the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(i) the
Company has paid or deposited with the Trustee a sum sufficient to
pay:
|
(A)
|
all
overdue installments of interest on all
Securities,
|
|
(B)
|
any
accrued Additional Interest on all
Securities,
|
|
(C)
|
the
principal of and any premium on any Securities that have become due
otherwise than by such declaration of acceleration and interest (including
any Additional Interest) thereon at the rate borne by the Securities,
and
|
|
(D)
|
all
sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee,
the
Property Trustee and their agents and counsel;
and
|
(ii) all
Events of Default with respect to the Securities, other than the non-payment
of
the principal of Securities that has become due solely by such acceleration,
have been cured or waived as provided in Section 5.13;
provided,
that if the Holders of such Securities fail to annul such declaration and waive
such default, the holders of not less than a majority in aggregate Liquidation
Amount of the Preferred Securities then outstanding shall also have the right
to
rescind and annul such declaration and its consequences by written notice to
the
Property Trustee, the Company and the Trustee, subject to the satisfaction
of
the conditions set forth in paragraph (b) of this Section
5.2. No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION
5.3. Collection
of Indebtedness and Suits for Enforcement by Trustee.
(a) The
Company covenants that if:
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(i) default
is made in the payment of any installment of interest (including any Additional
Interest) on any Security when such interest becomes due and payable and such
default continues for a period of thirty (30) days, or
(ii) default
is made in the payment of the principal of and any premium on any Security
at
the Maturity thereof,
the
Company will, upon demand of the Trustee, pay to the Trustee, for the benefit
of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest (including any Additional
Interest) and, in addition thereto, all amounts owing the Trustee under
Section 6.6.
(b) If
the
Company fails to pay such amounts forthwith upon such demand, the Trustee,
in
its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, and may prosecute
such proceeding to judgment or final decree, and may enforce the same against
the Company or any other obligor upon such Securities and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon the Securities, wherever
situated.
(c) If
an
Event of Default with respect to the Securities occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and
the
rights of the Holders of Securities by such appropriate judicial proceedings
as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION
5.4. Trustee
May File Proofs of Claim.
In
case
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or similar judicial proceeding relative
to
the Company (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in
such
proceeding or otherwise, to take any and all actions authorized hereunder in
order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to first pay to the Trustee any amount due
it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts owing the Trustee, any
predecessor Trustee and other Persons under Section 6.6.
SECTION
5.5. Trustee
May Enforce Claim Without Possession of Securities.
All
rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any
such proceeding instituted by the Trustee
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shall
be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, subject to Article XII and after provision for the
payment of all the amounts owing the Trustee, any predecessor Trustee and other
Persons under Section 6.6, be for the ratable benefit of the Holders of
the Securities in respect of which such judgment has been
recovered.
SECTION
5.6. Application
of Money Collected.
Any
money
or property collected or to be applied by the Trustee with respect to the
Securities pursuant to this Article V shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money or property on account of principal or any premium
or
interest (including any Additional Interest), upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST:
To
the payment of all amounts due the Trustee, any predecessor Trustee and other
Persons under Section 6.6;
SECOND:
To the payment of all Senior Debt of the Company if and to the extent required
by Article XII.
THIRD: Subject
to Article XII, to the payment of the amounts then due and unpaid upon
the Securities for principal and any premium and interest (including any
Additional Interest) in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for principal and
any
premium and interest (including any Additional Interest), respectively;
and
FOURTH:
The balance, if any, to the Person or Persons entitled thereto.
SECTION
5.7. Limitation
on Suits.
Subject
to Section 5.8, no Holder of any Securities shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture
or for the appointment of a custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) or for any other remedy hereunder,
unless:
(a) such
Holder has previously given written notice to the Trustee of a continuing Event
of Default with respect to the Securities;
(b) the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such
Holder or Holders have offered to the Trustee reasonable indemnity against
the
costs, expenses and liabilities to be incurred in compliance with such
request;
(d) the
Trustee after its receipt of such notice, request and offer of indemnity has
failed to institute any such proceeding for sixty (60) days; and
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(e) no
direction inconsistent with such written request has been given to the Trustee
during such sixty (60)-day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities;
it
being
understood and intended that no one or more of such Holders shall have any
right
in any manner whatever by virtue of, or by availing itself of, any provision
of
this Indenture to affect, disturb or prejudice the rights of any other Holders
of Securities, or to obtain or to seek to obtain priority or preference over
any
other of such Holders or to enforce any right under this Indenture, except
in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION
5.8. Unconditional
Right of Holders to Receive Principal, Premium and Interest; Direct Action
by
Holders of Preferred Securities.
Notwithstanding
any other provision in this Indenture, the Holder of any Security shall have
the
right, which is absolute and unconditional, to receive payment of the principal
of and any premium on such Security at its Maturity and payment of interest
(including any Additional Interest) on such Security when due and payable and
to
institute suit for the enforcement of any such payment, and such right shall
not
be impaired without the consent of such Holder. Any registered holder of the
Preferred Securities shall have the right, upon the occurrence of an Event
of
Default described in Section 5.1(a), Section 5.1(b) or Section
5.1(c), to institute a suit directly against the Company for enforcement of
payment to such holder of principal of and any premium and interest (including
any Additional Interest) on the Securities having a principal amount equal
to
the aggregate Liquidation Amount of the Preferred Securities held by such
holder.
SECTION
5.9. Restoration
of Rights and Remedies.
If
the
Trustee, any Holder or any holder of Preferred Securities has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee, such Holder or such holder of Preferred
Securities, then and in every such case the Company, the Trustee, such Holder
and such holder of Preferred Securities shall, subject to any determination
in
such proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Trustee,
such
Holder and such holder of Preferred Securities shall continue as though no
such
proceeding had been instituted.
SECTION
5.10. Rights
and Remedies Cumulative.
Except
as
otherwise provided in Section 3.6(f), no right or remedy herein conferred
upon or reserved to the Trustee or the Holders is intended to be exclusive
of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
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SECTION
5.11. Delay
or Omission Not Waiver.
No
delay
or omission of the Trustee, any Holder of any Securities or any holder of any
Preferred Security to exercise any right or remedy accruing upon any Event
of
Default shall impair any such right or remedy or constitute a waiver of any
such
Event of Default or an acquiescence therein. Every right and remedy
given by this Article V or by law to the Trustee or to the Holders and
the right and remedy given to the holders of Preferred Securities by Section
5.8 may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee, the Holders or the holders of Preferred Securities,
as the case may be.
SECTION
5.12. Control
by Holders.
The
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities (or, as the case may be, the holders of a majority in
aggregate Liquidation Amount of the Preferred Securities) shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee; provided, that:
(a) such
direction shall not be in conflict with any rule of law or with this
Indenture,
(b) the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction, and
(c) subject
to the provisions of Section 6.2, the Trustee shall have the right to
decline to follow such direction if a Responsible Officer or Officers of the
Trustee shall, in good faith, reasonably determine that the proceeding so
directed would be unjustly prejudicial to the Holders not joining in any such
direction or would involve the Trustee in personal liability.
SECTION
5.13. Waiver
of Past Defaults.
(a) The
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities and the holders of not less than a majority in aggregate
Liquidation Amount of the Preferred Securities may waive any past Event of
Default hereunder and its consequences except an Event of Default:
(i) in
the
payment of the principal of or any premium or interest (including any Additional
Interest) on any Security (unless such Event of Default has been cured and
the
Company has paid to or deposited with the Trustee a sum sufficient to pay all
installments of interest (including any Additional Interest) due and past due
and all principal of and any premium on all Securities due otherwise than by
acceleration), or
(ii) in
respect of a covenant or provision hereof that under Article IX cannot be
modified or amended without the consent of each Holder of any Outstanding
Security.
(b) Any
such
waiver shall be deemed to be on behalf of the Holders of all the Securities
or,
in the case of a waiver by holders of Preferred Securities issued by such Trust,
by all holders of Preferred Securities.
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(c) Upon
any
such waiver, such Event of Default shall cease to exist and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Event
of
Default or impair any right consequent thereon.
SECTION
5.14. Undertaking
for Costs.
All
parties to this Indenture agree, and each Holder of any Security by his or
her
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of
an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees 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 5.14 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than ten percent (10%) in aggregate
principal amount of the Outstanding Securities, or to any suit instituted by
any
Holder for the enforcement of the payment of the principal of or any premium
on
the Security after the Stated Maturity or any interest (including any Additional
Interest) on any Security after it is due and payable.
SECTION
5.15. Waiver
of Usury, Stay or Extension Laws.
The
Company covenants (to the extent that it may lawfully do so) that it will not
at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted,
now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any
power herein granted to the Trustee, but will suffer and permit the execution
of
every such power as though no such law had been enacted.
ARTICLE
VI
The
Trustee
SECTION
6.1. Corporate
Trustee Required.
There
shall at all times be a Trustee hereunder with respect to the
Securities. The Trustee shall be a corporation organized and doing
business under the laws of the United States or of any state thereof, authorized
to exercise corporate trust powers, having a combined capital and surplus of
at
least $50,000,000, subject to supervision or examination by Federal or state
authority and having an office within the United States. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then, for the purposes
of this Section 6.1, 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 the Trustee
shall cease to be eligible in
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accordance
with the provisions of this Section 6.1, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article
VI.
SECTION
6.2. Certain
Duties and Responsibilities.
(a) Except
during the continuance of an Event of Default:
(i) the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
and
(ii) in
the
absence of bad faith on its part, the Trustee may conclusively rely, as to
the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; provided, that in the case of any such
certificates or opinions that by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine
the
same to determine whether or not they substantially conform on their face to
the
requirements of this Indenture.
(b) If
an
Event of Default known to the Trustee has occurred and is continuing, the
Trustee shall, prior to the receipt of directions, if any, from the Holders
of
at least a majority in aggregate principal amount of the Outstanding Securities
(or, if applicable, from the holders of a majority in aggregate Liquidation
Amount of the Preferred Securities), exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
its
exercise, as a prudent person would exercise or use under the circumstances
in
the conduct of such person’s own affairs.
(c) Notwithstanding
the foregoing, no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is
not reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 6.2. To the extent that, at law or
in equity, the Trustee has duties and liabilities relating to the Holders,
the
Trustee shall not be liable to any Holder for the Trustee’s good faith reliance
on the provisions of this Indenture. The provisions of this
Indenture, to the extent that they restrict the duties and liabilities of the
Trustee otherwise existing at law or in equity, are agreed by the Company and
the Holders to replace such other duties and liabilities of the
Trustee.
(d) No
provisions of this Indenture shall be construed to relieve the Trustee from
liability with respect to matters that are within the authority of the Trustee
under this Indenture for its own negligent action, negligent failure to act
or
willful misconduct, except that:
(i) the
Trustee shall not be liable for any error or judgment made in good faith by
an
authorized officer of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
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(ii) the
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in good faith in accordance with the direction of the Holders of
at
least a majority in aggregate principal amount of the Outstanding Securities
(or, if applicable, from the holders of a majority in aggregate Liquidation
Amount of the Preferred Securities), relating to the time, method and place
of
conducting any proceeding for any remedy available to the Trustee under this
Indenture; and
(iii) the
Trustee shall be under no liability for interest on any money received by it
hereunder and money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
SECTION
6.3. Notice
of Defaults.
Within
ninety (90) days after the occurrence of any default actually known to the
Trustee, the Trustee shall give the Holders notice of such default unless such
default shall have been cured or waived; provided, that except in the
case of a default in the payment of the principal of or any premium or interest
on any Securities, the Trustee shall be fully protected in withholding the
notice if and so long as the board of directors, the executive committee or
a
trust committee of directors and/or Responsible Officers of the Trustee in
good
faith determines that withholding the notice is in the interest of holders
of
Securities; and provided, further, that in the case of any
default of the character specified in Section 5.1(d), no such notice to
Holders shall be given until at least thirty (30) days after the occurrence
thereof. For the purpose of this Section 6.3, the term “default” means
any event which is, or after notice or lapse of time or both would become,
an
Event of Default.
SECTION
6.4. Certain
Rights of Trustee.
Subject
to the provisions of Section 6.2:
(a) the
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting in good faith and in accordance with the terms hereof
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note 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) if
(i) in
performing its duties under this Indenture the Trustee is required to decide
between alternative courses of action, (ii) in construing any of the provisions
of this Indenture the Trustee finds ambiguous or inconsistent with any other
provisions contained herein or (iii) the Trustee is unsure of the application
of
any provision of this Indenture, then, except as to any matter as to which
the
Holders are entitled to decide under the terms of this Indenture, the Trustee
shall deliver a notice to the Company requesting the Company’s written
instruction as to the course of action to be taken and the Trustee shall take
such action, or refrain from taking such action, as the Trustee shall be
instructed in writing to take, or to refrain from taking, by the Company;
provided, that if the Trustee does not receive such instructions from
the Company within ten Business Days after it has delivered such notice or
such
reasonably shorter period of time set forth in such notice the Trustee may,
but
shall be under no duty to, take such action, or refrain from taking such action,
as the Trustee shall deem advisable and in the best interests of
-36-
the
Holders, in which event the Trustee shall have no liability except for its
own
negligence, bad faith or willful misconduct;
(c) any
request or direction of the Company shall be sufficiently evidenced by a Company
Request or Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(d) the
Trustee may consult with counsel (which counsel may be counsel to the Trustee,
the Company or any of its Affiliates, and may include any of its employees)
and
the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
or any holder of Preferred Securities pursuant to this Indenture, unless such
Holders (or such holders of Preferred Securities) shall have offered to the
Trustee security or indemnity reasonably satisfactory to it against the costs,
expenses (including reasonable attorneys’ fees and expenses) and liabilities
that might be incurred by it in compliance with such request or direction,
including reasonable advances as may be requested by the Trustee;
(f) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, indenture, note or other
paper
or document, but the Trustee in its discretion may make such inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such inquiry or investigation, it shall be entitled
to
examine the books, records and premises of the Company, personally or by agent
or attorney;
(g) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, attorneys, custodians or
nominees and the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent, attorney, custodian or nominee
appointed with due care by it hereunder;
(h) whenever
in the administration of this Indenture the Trustee shall deem it desirable
to
receive instructions with respect to enforcing any remedy or right or taking
any
other action with respect to enforcing any remedy or right hereunder, the
Trustees (i) may request instructions from the Holders (which instructions
may
only be given by the Holders of the same aggregate principal amount of
Outstanding Securities as would be entitled to direct the Trustee under this
Indenture in respect of such remedy, right or action), (ii) may refrain from
enforcing such remedy or right or taking such action until such instructions
are
received and (iii) shall be protected in acting in accordance with such
instructions;
(i) except
as
otherwise expressly provided by this Indenture, the Trustee shall not be under
any obligation to take any action that is discretionary under the provisions
of
this Indenture;
(j) without
prejudice to any other rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with any
bankruptcy,
-37-
insolvency
or other proceeding referred to in clauses (e) or (f) of the definition of
Event
of Default, such expenses (including legal fees and expenses of its agents
and
counsel) and the compensation for such services are intended to constitute
expenses of administration under any bankruptcy laws or law relating to
creditors rights generally;
(k) whenever
in the administration of this Indenture the Trustee shall deem it desirable
that
a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, conclusively rely
upon
an Officers’ Certificate addressing such matter, which, upon receipt of such
request, shall be promptly delivered by the Company;
(l) the
Trustee shall not be charged with knowledge of any default or Event of Default
unless either (i) a Responsible Officer of the Trustee shall have actual
knowledge or (ii) the Trustee shall have received written notice thereof from
the Company or a Holder; and
(m) in
the
event that the Trustee is also acting as Paying Agent, Authenticating Agent
or
Securities Registrar hereunder, the rights and protections afforded to the
Trustee pursuant to this Article VI shall also be afforded such Paying
Agent, Authenticating Agent, or Securities
Registrar.
SECTION
6.5. May
Hold Securities.
The
Trustee, any Authenticating Agent, any Paying Agent, any Securities Registrar
or
any other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Securities and may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Securities Registrar or such other
agent.
SECTION
6.6. Compensation;
Reimbursement; Indemnity.
(a) The
Company agrees
(i) to
pay to
the Trustee from time to time reasonable compensation for all services rendered
by it hereunder in such amounts as the Company and the Trustee shall agree
from
time to time (which compensation shall not be limited by any provision of law
in
regard to the compensation of a trustee of an express trust);
(ii) to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and
the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, bad faith
or
willful misconduct; and
(iii) to
the
fullest extent permitted by applicable law, to indemnify the Trustee (including
in its individual capacity) and its Affiliates, and their officers, directors,
shareholders, agents, representatives and employees for, and to hold them
harmless against, any loss, damage, liability, tax (other than income, franchise
or other taxes imposed on amounts paid pursuant to (i) or (ii) hereof), penalty,
expense or claim of any
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kind
or nature whatsoever incurred without negligence, bad faith or willful
misconduct on its part arising out of or in connection with the acceptance
or
administration of this trust or the performance of the Trustee’s duties
hereunder, including the advancement of funds to cover the costs and expenses
of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
(b) To
secure
the Company’s payment obligations in this Section 6.6, the Company
hereby grants and pledges to the Trustee and the Trustee shall have a lien
prior
to the Securities on all money or property held or collected by the Trustee,
other than money or property held in trust to pay principal and interest on
particular Securities. Such lien shall survive the satisfaction and
discharge of this Indenture or the resignation or removal of the
Trustee.
(c) The
obligations of the Company under this Section 6.6 shall survive the
satisfaction and discharge of this Indenture and the earlier resignation or
removal of the Trustee.
(d) In
no
event shall the Trustee be liable for any indirect, special, punitive or
consequential loss or damage of any kind whatsoever, including, but not limited
to, lost profits, even if the Trustee has been advised of the likelihood of
such
loss or damage and regardless of the form of action.
(e) In
no
event shall the Trustee be liable for any failure or delay in the performance
of
its obligations hereunder because of circumstances beyond its control,
including, but not limited to, acts of God, flood, war (whether declared or
undeclared), terrorism, fire, riot, embargo, government action, including any
laws, ordinances, regulations, governmental action or the like which delay,
restrict or prohibit the providing of the services contemplated by this
Indenture.
SECTION
6.7. Resignation
and Removal; Appointment of Successor.
(a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article VI shall become effective until the acceptance
of appointment by the successor Trustee under Section 6.8.
(b) The
Trustee may resign at any time by giving written notice thereof to the
Company.
(c) Unless
an
Event of Default shall have occurred and be continuing, the Trustee may be
removed at any time by the Company by a Board Resolution. If an Event
of Default shall have occurred and be continuing, the Trustee may be removed
by
Act of the Holders of a majority in aggregate principal amount of the
Outstanding Securities, delivered to the Trustee and to the
Company.
(d) If
the
Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any reason, at a time when no Event
of
Default shall have occurred and be continuing, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee, and such successor
Trustee and the retiring Trustee shall comply with the applicable requirements
of Section 6.8. If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any reason, at
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a
time
when an Event of Default shall have occurred and be continuing, the Holders,
by
Act of the Holders of a majority in aggregate principal amount of the
Outstanding Securities, shall promptly appoint a successor Trustee, and such
successor Trustee and the retiring Trustee shall comply with the applicable
requirements of Section 6.8. If no successor Trustee shall have been so
appointed by the Company or the Holders and accepted appointment within sixty
(60) days after the giving of a notice of resignation by the Trustee or the
removal of the Trustee in the manner required by Section 6.8, any Holder
who has been a bona fide Holder of a Security for at least six months may,
on
behalf of such Holder and all others similarly situated, and any resigning
Trustee may, at the expense of the Company, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(e) The
Company shall give notice to all Holders in the manner provided in Section
1.6 of each resignation and each removal of the Trustee and each appointment
of a successor Trustee. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION
6.8. Acceptance
of Appointment by Successor.
(a) In
case
of the appointment hereunder of a successor Trustee, each successor Trustee
so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of
the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder.
(b) Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all rights, powers and trusts referred to in paragraph (a)
of
this Section 6.8.
(c) No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article VI.
SECTION
6.9. Merger,
Conversion, Consolidation or Succession to Business.
Any
Person into which the Trustee may be merged or converted or with which it may
be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding
to
all or substantially all of the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto,
provided, that such Person shall be otherwise qualified and eligible
under this Article VI. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation or as otherwise provided above in this
Section 6.9 to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated,
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and
in
case any Securities shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
Trustee or in the name of such successor Trustee, and in all cases the
certificate of authentication shall have the full force which it is provided
anywhere in the Securities or in this Indenture that the certificate of the
Trustee shall have.
SECTION
6.10. Not
Responsible for Recitals or Issuance of Securities.
The
recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the Trustee
nor
any Authenticating Agent shall be accountable for the use or application by
the
Company of the Securities or the proceeds thereof.
SECTION
6.11. Appointment
of Authenticating Agent.
(a) The
Trustee may appoint an Authenticating Agent or Agents, if so requested by the
Company, with respect to the Securities, which shall be authorized to act on
behalf of the Trustee to authenticate Securities issued upon original issue
and
upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.6, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory
for
all purposes as if authenticated by the Trustee hereunder. Wherever reference
is
made in this Indenture to the authentication and delivery of Securities by
the
Trustee or the Trustee’s certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, or of any State or Territory
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or state
authority. If such Authenticating Agent publishes reports of condition at least
annually pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section 6.11 the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section 6.11, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section 6.11.
(b) Any
Person into which an Authenticating Agent may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any Person succeeding to all or substantially all of the corporate trust
business of an Authenticating Agent shall be the successor Authenticating Agent
hereunder, provided such Person shall be otherwise eligible under this
Section 6.11, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
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(c) An
Authenticating Agent may resign at any time by giving written notice thereof
to
the Trustee and to the Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.11, the Trustee may appoint a successor
Authenticating Agent eligible under the provisions of this Section 6.11,
which shall be acceptable to the Company, and shall give notice of such
appointment to all Holders. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the rights, powers
and
duties of its predecessor hereunder, with like effect as if originally named
as
an Authenticating Agent.
(d) The
Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 6.11 in such amounts as
the Company and the Authenticating Agent shall agree from time to
time.
(e) If
an
appointment of an Authenticating Agent is made pursuant to this Section
6.11, the Securities may have endorsed thereon, in addition to the Trustee’s
certificate of authentication, an alternative certificate of authentication
in
the following form:
This
represents Securities designated therein and referred to in the within mentioned
Indenture.
Dated:
WILMINGTON
TRUST COMPANY, not in its
individual
capacity, but solely as Trustee
Authenticating
Agent
By:
Authorized
Officer
ARTICLE
VII
Holders’
Lists and Reports by Trustee and Company
SECTION
7.1. Company
to Furnish Trustee Names and Addresses of Holders.
The
Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually,
on or before June 30 and December 31 of each year, a list, in such form as
the
Trustee may reasonably require, of the names and addresses of the Holders as
of
a date not more than fifteen (15) days prior to the delivery thereof,
and
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(b) at
such
other times as the Trustee may request in writing, within thirty (30) days
after
the receipt by the Company of any such request, a list of similar form and
content as of a date not more than fifteen (15) days prior to the time such
list
is furnished, in each case to the extent such information is in the possession
or control of the Company and has not otherwise been received by the Trustee
in
its capacity as Securities Registrar.
SECTION
7.2. Preservation
of Information, Communications to Holders.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable,
the
names and addresses of Holders contained in the most recent list furnished
to
the Trustee as provided in Section 7.1 and the names and addresses of
Holders received by the Trustee in its capacity as Securities Registrar. The
Trustee may destroy any list furnished to it as provided in Section 7.1
upon receipt of a new list so furnished.
(b) The
rights of Holders to communicate with other Holders with respect to their rights
under this Indenture or under the Securities, and the corresponding rights
and
privileges of the Trustee, shall be as provided in the Trust Indenture
Act.
(c) Every
Holder of Securities, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee nor any agent of either
of them shall be held accountable by reason of the disclosure of information
as
to the names and addresses of the Holders made pursuant to the Trust Indenture
Act.
SECTION
7.3. Reports
by Company and Trustee.
(a) The
Company shall furnish to the Holders and to prospective purchasers of
Securities, upon their request, the information required to be furnished
pursuant to Rule 144A(d)(4) under the Securities Act. The Company
shall furnish to the Trustee and, so long as the Property Trustee holds any
of
the Securities, the Company shall furnish to the Property Trustee, (i) reports
on Federal Reserve form FR Y-9C, FR Y-9LP and FR Y-6 promptly
following their filing with the Federal Reserve, or (ii) if at such time the
Company is no longer required to file the reports set forth in (i) above, such
other similar reports as the Company may be required to file at such time with
the Company’s primary federal banking regulator promptly following their filing
with such banking regulator.
(b) The
Company shall furnish to (i) the Holders and to subsequent holders of
Securities, (ii) the Purchaser, (iii) any beneficial owner of the Securities
reasonably identified to the Company (which identification may be made either
by
such beneficial owner or by the Purchaser) and (iv) any designee of (i), (ii)
or
(iii) above, a duly completed and executed certificate in the form attached
hereto as Exhibit B, including the financial statements referenced in
such Exhibit, which certificate and financial statements shall be so furnished
by the Company not later than forty five (45) days after the end of each of
the
first three fiscal quarters of each fiscal year of the Company and not later
than ninety (90) days after the end of each fiscal year of the
Company.
(c) The
Trustee shall receive all reports, certificates and information, which it is
entitled to receive under each of the Operative Documents (as defined in the
Trust Agreement),
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and
deliver to the Purchaser or its designee, as identified in writing to the
Trustee, all such reports, certificates or information promptly upon receipt
thereof.
ARTICLE
VIII
Consolidation,
Merger, Conveyance, Transfer or Lease
SECTION
8.1. Company
May Consolidate, Etc., Only on Certain Terms.
The
Company shall not consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to
any
Person, and no Person shall consolidate with or merge into the Company or
convey, transfer or lease its properties and assets substantially as an entirety
to the Company, unless:
(a) if
the
Company shall consolidate with or merge into another Person or convey, transfer
or lease its properties and assets substantially as an entirety to any Person,
the entity formed by such consolidation or into which the Company is merged
or
the Person that acquires by conveyance or transfer, or that leases, the
properties and assets of the Company substantially as an entirety shall be
an
entity organized and existing under the laws of the United States of America
or
any State or Territory thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the due and punctual
payment of the principal of and any premium and interest (including any
Additional Interest) on all the Securities and the performance of every covenant
of this Indenture on the part of the Company to be performed or
observed;
(b) immediately
after giving effect to such transaction, no Event of Default, and no event
that,
after notice or lapse of time, or both, would constitute an Event of Default,
shall have happened and be continuing; and
(c) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer
or
lease and, if a supplemental indenture is required in connection with such
transaction, any such supplemental indenture comply with this Article
VIII and that all conditions precedent herein provided for relating to such
transaction have been complied with; and the Trustee may rely upon such
Officers’ Certificate and Opinion of Counsel as conclusive evidence that such
transaction complies with this Section 8.1.
SECTION
8.2. Successor
Company Substituted.
(a) Upon
any
consolidation or merger by the Company with or into any other Person, or any
conveyance, transfer or lease by the Company of its properties and assets
substantially as an entirety to any Person in accordance with Section 8.1
and the execution and delivery to the Trustee of the supplemental indenture
described in Section 8.1(a), the successor entity formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein;
and in the event of any such conveyance or transfer, following
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the
execution and delivery of such supplemental indenture, the Company shall be
discharged from all obligations and covenants under the Indenture and the
Securities.
(b) Such
successor Person may cause to be executed, and may issue either in its own
name
or in the name of the Company, any or all of the Securities issuable hereunder
that theretofore shall not have been signed by the Company and delivered to
the
Trustee; and, upon the order of such successor Person instead of the Company
and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
that
previously shall have been signed and delivered by the officers of the Company
to the Trustee for authentication, and any Securities that such successor Person
thereafter shall cause to be executed and delivered to the Trustee on its
behalf. 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.
(c) In
case
of any such consolidation, merger, sale, conveyance or lease, such changes
in
phraseology and form may be made in the Securities thereafter to be issued
as
may be appropriate to reflect such occurrence.
ARTICLE
IX
Supplemental
Indentures
SECTION
9.1. Supplemental
Indentures without Consent of Holders.
Without
the consent of any Holders, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form reasonably satisfactory to the Trustee,
for any of the following purposes:
(a) to
evidence the succession of another Person to the Company, and the assumption
by
any such successor of the covenants of the Company herein and in the Securities;
or
(b) to
cure
any ambiguity, to correct or supplement any provision herein that may be
defective or inconsistent with any other provision herein, or to make or amend
any other provisions with respect to matters or questions arising under this
Indenture, which shall not be inconsistent with the other provisions of this
Indenture, provided, that such action pursuant to this clause (b) shall
not adversely affect in any material respect the interests of any Holders or
the
holders of the Preferred Securities; or
(c) to
add to
the covenants, restrictions or obligations of the Company or to add to the
Events of Default, provided, that such action pursuant to this clause
(c) shall not adversely affect in any material respect the interests of any
Holders or the holders of the Preferred Securities; or
(d) to
modify, eliminate or add to any provisions of the Indenture or the Securities
to
such extent as shall be necessary to ensure that the Securities are treated
as
indebtedness of the Company for United States Federal income tax purposes,
provided, that such action pursuant to this clause (d) shall not
adversely affect in any material respect the interests of any Holders or the
holders of the Preferred Securities.
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SECTION
9.2. Supplemental
Indentures with Consent of Holders.
(a) With
the
consent of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any
of the provisions of this Indenture or of modifying in any manner the rights
of
the Holders of Securities under this Indenture; provided, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security,
(i) change
the Stated Maturity of the principal or any premium of any Security or change
the date of payment of any installment of interest (including any Additional
Interest) on any Security, or reduce the principal amount thereof or the rate
of
interest thereon or any premium payable upon the redemption thereof or change
the place of payment where, or the coin or currency in which, any Security
or
interest thereon is payable, or restrict or impair the right to institute suit
for the enforcement of any such payment on or after such date, or
(ii) reduce
the percentage in aggregate principal amount of the Outstanding Securities,
the
consent of whose Holders is required for any such supplemental indenture, or
the
consent of whose Holders is required for any waiver of compliance with any
provision of this Indenture or of defaults hereunder and their consequences
provided for in this Indenture, or
(iii) modify
any of the provisions of this Section 9.2, Section 5.13 or
Section 10.7, except to increase any percentage in aggregate principal
amount of the Outstanding Securities, the consent of whose Holders is required
for any reason, or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Security;
provided,
further, that, so long as any Preferred Securities remain outstanding, no
amendment under this Section 9.2 shall be effective until the holders of
a majority in Liquidation Amount of the Trust Securities shall have consented
to
such amendment; provided, further, that if the consent of the Holder of
each Outstanding Security is required for any amendment under this Indenture,
such amendment shall not be effective until the holder of each outstanding
Trust
Security shall have consented to such amendment.
(b) It
shall
not be necessary for any Act of Holders under this Section 9.2 to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
SECTION
9.3. Execution
of Supplemental Indentures.
In
executing or accepting the additional trusts created by any supplemental
indenture permitted by this Article IX or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in conclusively relying upon, an Officers’
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture, and that
all conditions
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precedent
herein provided for relating to such action have been complied with. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
that affects the Trustee’s own rights, duties, indemnities or immunities under
this Indenture or otherwise. Copies of the final form of each
supplemental indenture shall be delivered by the Trustee at the expense of
the
Company to each Holder, and, if the Trustee is the Property Trustee, to each
holder of Preferred Securities, promptly after the execution
thereof.
SECTION
9.4. Effect
of Supplemental Indentures.
Upon
the
execution of any supplemental indenture under this Article IX, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION
9.5. Reference
in Securities to Supplemental Indentures.
Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and shall if required by
the Company, bear a notation in form approved by the Company as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Company, to
any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
ARTICLE
X
Covenants
SECTION
10.1. Payment
of Principal, Premium and Interest.
The
Company covenants and agrees for the benefit of the Holders of the Securities
that it will duly and punctually pay the principal of and any premium and
interest (including any Additional Interest) on the Securities in accordance
with the terms of the Securities and this Indenture.
SECTION
10.2. Money
for Security Payments to be Held in Trust.
(a) If
the
Company shall at any time act as its own Paying Agent with respect to the
Securities, it will, on or before each due date of the principal of and any
premium or interest (including any Additional Interest) on the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto
a
sum sufficient to pay the principal and any premium or interest (including
Additional Interest) so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee in writing of its failure so to act.
(b) Whenever
the Company shall have one or more Paying Agents, it will, prior to 10:00 a.m.,
New York City time, on each due date of the principal of or any premium or
interest (including any Additional Interest) on any Securities, deposit with
a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided in the Trust Indenture Act and
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(unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its failure so to act.
(c) The
Company will cause each Paying Agent for the Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section
10.2, that such Paying Agent will (i) comply with the provisions of this
Indenture and the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other obligor
upon the Securities) in the making of any payment in respect of the Securities,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
held in trust by such Paying Agent for payment in respect of the
Securities.
(d) The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the
same
terms as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.
(e) Any
money
deposited with the Trustee or any Paying Agent, or then held by the Company
in
trust for the payment of the principal of and any premium or interest (including
any Additional Interest) on any Security and remaining unclaimed for two years
after such principal and any premium or interest has become due and payable
shall (unless otherwise required by mandatory provision of applicable escheat
or
abandoned or unclaimed property law) be paid on Company Request to the Company,
or (if then held by the Company) shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) be
discharged from such trust; and the Holder of such Security shall thereafter,
as
an unsecured general creditor, look only to the Company for payment thereof,
and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause
to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than thirty (30)
days from the date of such publication, any unclaimed balance of such money
then
remaining will be repaid to the Company.
SECTION
10.3. Statement
as to Compliance.
The
Company shall deliver to the Trustee, within one hundred and twenty (120) days
after the end of each fiscal year of the Company ending after the date hereof,
an Officers’ Certificate (substantially in the form attached hereto as
Exhibit C) covering the preceding fiscal year, stating whether or not to
the knowledge of the signers thereof the Company is in default in the
performance or observance of any of the terms, provisions and conditions of
this
Indenture (without regard to any period of grace or requirement of notice
provided hereunder), and if the
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Company
shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
SECTION
10.4. Calculation
Agent.
(a) The
Company hereby agrees that for so long as any of the Securities remain
Outstanding, there will at all times be an agent appointed to calculate LIBOR
in
respect of each Interest Payment Date in accordance with the terms of
Schedule A (the “Calculation Agent”). The Company has
initially appointed the Property Trustee as Calculation Agent for purposes
of
determining LIBOR for each Interest Payment Date. The Calculation
Agent may be removed by the Company at any time. Except as described
in the immediately preceding sentence, so long as the Property Trustee holds
any
of the Securities, the Calculation Agent shall be the Property
Trustee. If the Calculation Agent is unable or unwilling to act
as such or is removed by the Company, the Company will promptly appoint as
a
replacement Calculation Agent the London office of a leading bank which is
engaged in transactions in three-month U.S. Dollar deposits in Europe and which
does not control or is not controlled by or under common control with the
Company or its Affiliates. The Calculation Agent may not resign its
duties without a successor having been duly appointed.
(b) The
Calculation Agent shall be required to agree that, as soon as possible after
11:00 a.m. (London time) on each LIBOR Determination Date (as defined in
Schedule A), but in no event later than 11:00 a.m. (London time) on the
Business Day immediately following each LIBOR Determination Date, the
Calculation Agent will calculate the interest rate and dollar amount (rounded
to
the nearest cent, with half a cent being rounded upwards) for the related
Interest Payment Date, and will communicate such rate and amount to the Company,
the Trustee, each Paying Agent and the Depositary. The Calculation Agent will
also specify to the Company the quotations upon which the foregoing rates and
amounts are based and, in any event, the Calculation Agent shall notify the
Company before 5:00 p.m. (London time) on each LIBOR Determination Date that
either: (i) it has determined or is in the process of determining the
foregoing rates and amounts or (ii) it has not determined and is not in the
process of determining the foregoing rates and amounts, together with its
reasons therefor. The Calculation Agent’s determination of the
foregoing rates and amounts for any Interest Payment Date will (in the absence
of manifest error) be final and binding upon all parties. For the
sole purpose of calculating the interest rate for the Securities, “Business Day”
shall be defined as any day on which dealings in deposits in Dollars are
transacted in the London interbank market.
SECTION
10.5. Additional
Tax Sums.
If
(a)
the Trust is the Holder of all of the Outstanding Securities and (b) a Tax
Event
described in clause (i) or (iii) in the definition of Tax Event in Section
1.1 hereof has occurred and is continuing, the Company shall pay to the
Trust (and its permitted successors or assigns under the related Trust
Agreement) for so long as the Trust (or its permitted successor or assignee)
is
the registered holder of the Outstanding Securities, such amounts as may be
necessary in order that the amount of Distributions (including any Additional
Interest Amount (as defined in the Trust Agreement)) then due and payable by
the
Trust on the Preferred Securities and Common Securities that at any time remain
outstanding in accordance with the terms thereof shall not be reduced as a
result of any Additional Taxes arising from such Tax
-49-
Event
(additional such amounts payable by the Company to the Trust, the
“Additional Tax Sums”). Whenever in this Indenture or the Securities
there is a reference in any context to the payment of principal of or interest
on the Securities, such mention shall be deemed to include mention of the
payments of the Additional Tax Sums provided for in this Section 10.5 to
the extent that, in such context, Additional Tax Sums are, were or would be
payable in respect thereof pursuant to the provisions of this Section
10.5 and express mention of the payment of Additional Tax Sums (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Tax Sums in those provisions hereof where such express mention is
not
made; provided, that the deferral of the payment of interest pursuant
to Section 3.9 on the Securities shall not defer the payment of any
Additional Tax Sums that may be due and payable.
SECTION
10.6. Additional
Covenants.
(a) The
Company covenants and agrees with each Holder of Securities that if an Event
of
Default shall have occurred and be continuing or the Company shall have given
notice of its election to begin an Extension Period with respect to the
Securities and shall not have rescinded such notice, or such Extension Period,
or any extension thereof, shall be continuing, it shall not (i) declare or
pay
any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company’s Equity Interests, (ii)
vote in favor of or permit or otherwise allow any of its Subsidiaries to declare
or pay any dividends or distributions on, or redeem, purchase, acquire or make
a
liquidation payment with respect to or otherwise retire, any of such
Subsidiary’s Equity Interests entitling the holders thereof to a stated rate of
return, other than dividends or distributions on Equity Interests issued by
any
Subsidiary solely payable to the Company or any Subsidiary thereof (for the
avoidance of doubt, whether such Equity Interests are perpetual or otherwise),
or (iii) make any payment of principal of or any interest or premium on or
repay, repurchase or redeem any debt securities of the Company that rank
pari passu in all respects with or junior in interest to the Securities
(other than (A) repurchases, redemptions or other acquisitions of Equity
Interests of the Company in connection with any employment contract, benefit
plan or other similar arrangement with or for the benefit of any one or more
employees, officers, directors or consultants, in connection with a dividend
reinvestment or stockholder stock purchase or similar plan with respect to
any
Equity Interests or in connection with the issuance of Equity Interests of
the
Company (or securities convertible into or exercisable for such Equity
Interests) as consideration in an acquisition transaction entered into prior
to
the applicable Event of Default or Extension Period, (B) as a result of an
exchange or conversion of any class or series of the Company’s Equity Interests
(or any Equity Interests of a Subsidiary of the Company) for any class or series
of the Company’s Equity Interests or of any class or series of the Company’s
indebtedness for any class or series of the Company’s Equity Interests, (C) the
purchase of fractional interests in Equity Interests of the Company pursuant
to
the conversion or exchange provisions of such Equity Interests or the security
being converted or exchanged, (D) any declaration of a dividend in connection
with any Rights Plan, the issuance of rights, Equity Interests or other property
under any Rights Plan or the redemption or repurchase of rights pursuant
thereto, or (E) any dividend in the form of Equity Interests, warrants, options
or other rights where the dividend Equity Interests or the Equity Interests
issuable upon exercise of such warrants, options or other rights are the same
Equity Interests as those on which the dividend is being paid or rank pari
passu with or junior to such Equity Interests).
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(b) The
Company also covenants with each Holder of Securities (i) to hold, directly
or
indirectly, one hundred percent (100%) of the Common Securities of the Trust,
provided, that any permitted successor of the Company hereunder may
succeed to the Company’s ownership of such Common Securities, (ii) as holder of
such Common Securities, not to voluntarily dissolve, wind-up or liquidate the
Trust other than (A) in connection with a distribution of the Securities to
the
holders of the Preferred Securities in liquidation of the Trust or (B) in
connection with certain mergers, consolidations or amalgamations permitted
by
the Trust Agreement and (iii) to use its reasonable commercial efforts,
consistent with the terms and provisions of the Trust Agreement, to cause the
Trust to continue to be taxable as a grantor trust and not as a corporation
for
United States Federal income tax purposes.
SECTION
10.7. Waiver
of Covenants.
The
Company may omit in any particular instance to comply with any covenant or
condition contained in Section 10.6 if, before or after the time for such
compliance, the Holders of at least a majority in aggregate principal amount
of
the Outstanding Securities shall, by Act of such Holders, and at least a
majority of the aggregate Liquidation Amount of the Preferred Securities then
outstanding, by consent of such holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but
no
such waiver shall extend to or affect such covenant or condition except to
the
extent so expressly waived, and, until such waiver shall become effective,
the
obligations of the Company in respect of any such covenant or condition shall
remain in full force and effect.
SECTION
10.8. Treatment
of Securities.
The
Company will treat the Securities as indebtedness, and the amounts (other than
payments of principal) payable in respect of the principal amount of such
Securities as interest, for all U.S. federal income tax purposes. All
payments in respect of the Securities will be made free and clear of U.S.
withholding tax to any beneficial owner thereof that has provided an Internal
Revenue Service Form W-9 or W-8BEN (or any substitute or successor form)
establishing its U.S. or non-U.S. status for U.S. federal income tax
purposes.
ARTICLE
XI
Redemption
of Securities
SECTION
11.1. Optional
Redemption.
The
Company may, at its option, on any Interest Payment Date, on or after October
30, 2012, redeem the Securities in whole at any time or in part from time to
time, at a Redemption Price equal to one hundred percent (100%) of the principal
amount thereof (or of the redeemed portion thereof, as applicable), together,
in
the case of any such redemption, with accrued interest, including any Additional
Interest, to but excluding the date fixed for redemption; provided,
that the Company shall have received the prior approval of the Federal Reserve
with respect to such redemption if then required.
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SECTION
11.2. Special
Event Redemption.
Upon
the
occurrence and during the continuation of a Special Event, the Company may,
at
its option, redeem the Securities, in whole but not in part, at a redemption
price equal to one hundred three and one half (103.50%) percent of the principal
amount thereof, if the redemption occurs prior to October 30, 2008, and
thereafter at a redemption price equal to the percentage of the principal amount
of the Securities that is specified below, together, in the case of any such
redemption, with accrued interest, including any Additional Interest, to but
excluding the date fixed for redemption (the “Special Event Redemption
Price”):
|
Special
Event Redemption During
the
12-Month Period Beginning October 30,
|
Percentage
of Principal Amount
|
|
2008
|
102.80%
|
|
2009
|
102.10%
|
|
2010
|
101.40%
|
|
2011
|
100.70%
|
|
2012
and thereafter
|
100.00%
|
;
provided, that the Company shall have received the prior approval of
the Federal Reserve with respect to such redemption if then
required.
SECTION
11.3. Election
to Redeem; Notice to Trustee.
The
election of the Company to redeem any Securities, in whole or in part, shall
be
evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, not less than
thirty (30) days and not more than sixty (60) days prior to the Redemption
Date
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee and the Property Trustee under the Trust Agreement in writing of such
date and of the principal amount of the Securities to be redeemed and provide
the additional information required to be included in the notice or notices
contemplated by Section 11.5. In the case of any redemption of
Securities, in whole or in part, (a) prior to the expiration of any restriction
on such redemption provided in this Indenture or the Securities or (b) pursuant
to an election of the Company which is subject to a condition specified in
this
Indenture or the Securities, the Company shall furnish the Trustee with an
Officers’ Certificate and an Opinion of Counsel evidencing compliance with such
restriction or condition.
SECTION
11.4. Selection
of Securities to be Redeemed.
(a) If
less
than all the Securities are to be redeemed, the particular Securities to be
redeemed shall be selected and redeemed on a pro rata basis not more than sixty
(60) days prior to the Redemption Date by the Trustee from the Outstanding
Securities not previously called for redemption, provided, that the
unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
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(b) The
Trustee shall promptly notify the Company in writing of the Securities selected
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed. For all purposes of
this Indenture, unless the context otherwise requires, all provisions relating
to the redemption of Securities shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Security that has been or is to be redeemed.
(c) The
provisions of paragraphs (a) and (b) of this Section 11.4 shall not apply
with respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
SECTION
11.5. Notice
of Redemption.
(a) Notice
of
redemption shall be given not later than the thirtieth (30th) day, and not
earlier than the sixtieth (60th) day, prior to the Redemption Date to each
Holder of Securities to be redeemed, in whole or in part (unless a shorter
notice shall be satisfactory to the Property Trustee under the related Trust
Agreement).
(b) With
respect to Securities to be redeemed, in whole or in part, each notice of
redemption shall state:
(i) the
Redemption Date;
(ii) the
Redemption Price or, if the Redemption Price cannot be calculated prior to
the
time the notice is required to be sent, the estimate of the Redemption Price,
as
calculated by the Company, together with a statement that it is an estimate
and
that the actual Redemption Price will be calculated on the fifth Business Day
prior to the Redemption Date (and if an estimate is provided, a further notice
shall be sent of the actual Redemption Price on the date that such Redemption
Price is calculated);
(iii) if
less
than all Outstanding Securities are to be redeemed, the identification (and,
in
the case of partial redemption, the respective principal amounts) of the
particular Securities to be redeemed;
(iv) that
on
the Redemption Date, the Redemption Price will become due and payable upon
each
such Security or portion thereof, and that any interest (including any
Additional Interest) on such Security or such portion, as the case may be,
shall
cease to accrue on and after said date; and
(v) the
place
or places where such Securities are to be surrendered for payment of the
Redemption Price.
(c) Notice
of
redemption of Securities to be redeemed, in whole or in part, at the election
of
the Company shall be given by the Company or, at the Company’s request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
The notice if mailed in the manner provided above shall be conclusively presumed
to have been duly given,
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whether
or not the Holder receives such notice. In any case, a failure to give such
notice by mail or any defect in the notice to the Holder of any Security
designated for redemption as a whole or in part shall not affect the validity
of
the proceedings for the redemption of any other Security.
SECTION
11.6. Deposit
of Redemption Price.
Prior
to
10:00 a.m., New York City time, on the Redemption Date specified in the notice
of redemption given as provided in Section 11.5, the Company will deposit
with the Trustee or with one or more Paying Agents (or if the Company is acting
as its own Paying Agent, the Company will segregate and hold in trust as
provided in Section 10.2) an amount of money sufficient to pay the
Redemption Price of, and any accrued interest (including any Additional
Interest) on, all the Securities (or portions thereof) that are to be redeemed
on that date.
SECTION
11.7. Payment
of Securities Called for Redemption.
(a) If
any
notice of redemption has been given as provided in Section 11.5, the
Securities or portion of Securities with respect to which such notice has been
given shall become due and payable on the date and at the place or places stated
in such notice at the applicable Redemption Price, together with accrued
interest (including any Additional Interest) to the Redemption Date. On
presentation and surrender of such Securities at a Place of Payment specified
in
such notice, the Securities or the specified portions thereof shall be paid
and
redeemed by the Company at the applicable Redemption Price, together with
accrued interest (including any Additional Interest) to the Redemption
Date.
(b) Upon
presentation of any Security redeemed in part only, the Company shall execute
and upon receipt thereof the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Company, a new Security or Securities,
of
authorized denominations, in aggregate principal amount equal to the unredeemed
portion of the Security so presented and having the same Original Issue Date,
Stated Maturity and terms.
(c) If
any
Security called for redemption shall not be so paid upon surrender thereof
for
redemption, the principal of and any premium on such Security shall, until
paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
ARTICLE
XII
Subordination
of Securities
SECTION
12.1. Securities
Subordinate to Senior Debt.
The
Company covenants and agrees, and each Holder of a Security, by its acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article XII, the payment of the principal
of and any premium and interest (including any Additional Interest) on each
and
all of the Securities are hereby expressly made subordinate and subject in
right
of payment to the prior payment in full of all Senior Debt.
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SECTION
12.2. No
Payment When Senior Debt in Default; Payment Over of Proceeds Upon Dissolution,
Etc.
(a) In
the
event and during the continuation of any default by the Company in the payment
of any principal of or any premium or interest on any Senior Debt (following
any
grace period, if applicable) when the same becomes due and payable, whether
at
maturity or at a date fixed for prepayment or by declaration of acceleration
or
otherwise, then, upon written notice of such default to the Company by the
holders of such Senior Debt or any trustee therefor, unless and until such
default shall have been cured or waived or shall have ceased to exist, no direct
or indirect payment (in cash, property, securities, by set-off or otherwise)
shall be made or agreed to be made on account of the principal of or any premium
or interest (including any Additional Interest) on any of the Securities, or
in
respect of any redemption, repayment, retirement, purchase or other acquisition
of any of the Securities.
(b) In
the
event of a bankruptcy, insolvency or other proceeding described in clause (e)
or
(f) of the definition of Event of Default (each such event, if any, herein
sometimes referred to as a “Proceeding”), all Senior Debt (including
any interest thereon accruing after the commencement of any such proceedings)
shall first be paid in full before any payment or distribution, whether in
cash,
securities or other property, shall be made to any Holder of any of the
Securities on account thereof. Any payment or distribution, whether in cash,
securities or other property (other than securities of the Company or any other
entity provided for by a plan of reorganization or readjustment the payment
of
which is subordinate, at least to the extent provided in these subordination
provisions with respect to the indebtedness evidenced by the Securities, to
the
payment of all Senior Debt at the time outstanding and to any securities issued
in respect thereof under any such plan of reorganization or readjustment),
which
would otherwise (but for these subordination provisions) be payable or
deliverable in respect of the Securities shall be paid or delivered directly
to
the holders of Senior Debt in accordance with the priorities then existing
among
such holders until all Senior Debt (including any interest thereon
accruing after the commencement of any Proceeding) shall have been paid in
full.
(c) In
the
event of any Proceeding, after payment in full of all sums owing with respect
to
Senior Debt, the Holders of the Securities, together with the holders of any
obligations of the Company ranking on a parity with the Securities, shall be
entitled to be paid from the remaining assets of the Company the amounts at
the
time due and owing on account of unpaid principal of and premium, if any, and
interest (including any Additional Interest) on the Securities and such other
obligations before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any Equity Interests or any
obligations of the Company ranking junior to the Securities and such other
obligations. If, notwithstanding the foregoing, any payment or distribution
of
any character or any security, whether in cash, securities or other property
(other than securities of the Company or any other entity provided for by a
plan
of reorganization or readjustment the payment of which is subordinate, at least
to the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior Debt
at
the time outstanding and to any securities issued in respect thereof under
any
such plan of reorganization or readjustment) shall be received by the Trustee
or
any Holder in contravention of any of the terms hereof and before all Senior
Debt shall have been paid in full, such payment or distribution or security
shall be received in trust for the benefit of, and shall be paid over or
delivered and transferred to, the holders of the
-55-
Senior
Debt at the time outstanding in accordance with the priorities then existing
among such holders for application to the payment of all Senior Debt remaining
unpaid, to the extent necessary to pay all such Senior Debt (including any
interest thereon accruing after the commencement of any Proceeding) in full.
In
the event of the failure of the Trustee or any Holder to endorse or assign
any
such payment, distribution or security, each holder of Senior Debt is hereby
irrevocably authorized to endorse or assign the same.
(d) The
Trustee and the Holders, at the expense of the Company, shall take such
reasonable action (including the delivery of this Indenture to an
agent for any holders of Senior Debt or consent to the filing of a financing
statement with respect hereto) as may, in the opinion of counsel designated
by
the holders of a majority in principal amount of the Senior Debt at the time
outstanding, be necessary or appropriate to assure the effectiveness of the
subordination effected by these provisions.
(e) The
provisions of this Section 12.2 shall not impair any rights, interests,
remedies or powers of any secured creditor of the Company in respect of any
security interest the creation of which is not prohibited by the provisions
of
this Indenture.
(f) The
securing of any obligations of the Company, otherwise ranking on a parity with
the Securities or ranking junior to the Securities, shall not be deemed to
prevent such obligations from constituting, respectively, obligations ranking
on
a parity with the Securities or ranking junior to the Securities.
SECTION
12.3. Payment
Permitted If No Default.
Nothing
contained in this Article XII or elsewhere in this Indenture or in any of
the Securities shall prevent (a) the Company, at any time, except during the
pendency of the conditions described in paragraph (a) of Section 12.2 or
of any Proceeding referred to in Section 12.2, from making payments
at any time of principal of and any premium or interest (including any
Additional Interest) on the Securities or (b) the application by the Trustee
of
any moneys deposited with it hereunder to the payment of or on account of the
principal of and any premium or interest (including any Additional Interest)
on
the Securities or the retention of such payment by the Holders, if, at the
time
of such application by the Trustee, it did not have knowledge (in accordance
with Section 12.8) that such payment would have been prohibited by the
provisions of this Article XII, except as provided in Section
12.8.
SECTION
12.4. Subrogation
to Rights of Holders of Senior Debt.
Subject
to the payment in full of all amounts due or to become due on all Senior Debt,
or the provision for such payment in cash or cash equivalents or otherwise
in a
manner satisfactory to the holders of Senior Debt, the Holders of the Securities
shall be subrogated to the extent of the payments or distributions made to
the
holders of such Senior Debt pursuant to the provisions of this Article
XII (equally and ratably with the holders of all indebtedness of the Company
that by its express terms is subordinated to Senior Debt of the Company to
substantially the same extent as the Securities are subordinated to the Senior
Debt and is entitled to like rights of subrogation by reason of any payments
or
distributions made to holders of such Senior Debt) to the rights of the holders
of such Senior Debt to receive payments and distributions of cash,
-56-
property
and securities applicable to the Senior Debt until the principal of and any
premium and interest (including any Additional Interest) on the Securities
shall
be paid in full. For purposes of such subrogation, no payments or distributions
to the holders of the Senior Debt of any cash, property or securities to which
the Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article XII, and no payments made pursuant to the
provisions of this Article XII to the holders of Senior Debt by Holders
of the Securities or the Trustee, shall, as among the Company, its creditors
other than holders of Senior Debt, and the Holders of the Securities, be deemed
to be a payment or distribution by the Company to or on account of the Senior
Debt.
SECTION
12.5. Provisions
Solely to Define Relative Rights.
The
provisions of this Article XII are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on
the
one hand and the holders of Senior Debt on the other hand. Nothing contained
in
this Article XII or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as between the Company and the Holders of
the
Securities, the obligations of the Company, which are absolute and
unconditional, to pay to the Holders of the Securities the principal of and
any
premium and interest (including any Additional Interest) on the Securities
as
and when the same shall become due and payable in accordance with their terms,
(b) affect the relative rights against the Company of the Holders of the
Securities and creditors of the Company other than their rights in relation
to
the holders of Senior Debt or (c) prevent the Trustee or the Holder of any
Security (or to the extent expressly provided herein, the holder of any
Preferred Security) from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, including filing and voting
claims in any Proceeding, subject to the rights, if any, under this Article
XII of the holders of Senior Debt to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION
12.6. Trustee
to Effectuate Subordination.
Each
Holder of a Security by his or her acceptance thereof authorizes and directs
the
Trustee on his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination provided in this
Article XII and appoints the Trustee his or her attorney-in-fact for any
and all such purposes.
SECTION
12.7. No
Waiver of Subordination Provisions.
(a) No
right
of any present or future holder of any Senior Debt to enforce subordination
as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or be otherwise charged
with.
(b) Without
in any way limiting the generality of paragraph (a) of this Section 12.7,
the holders of Senior Debt may, at any time and from to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to such Holders of
-57-
the
Securities and without impairing or releasing the subordination provided in
this
Article XII or the obligations hereunder of such Holders of the
Securities to the holders of Senior Debt, 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, Senior Debt, or otherwise amend or supplement in any
manner Senior Debt or any instrument evidencing the same or any agreement under
which Senior Debt is outstanding, (ii) sell, exchange, release or otherwise
deal
with any property pledged, mortgaged or otherwise securing Senior Debt, (iii)
release any Person liable in any manner for the payment of Senior Debt and
(iv)
exercise or refrain from exercising any rights against the Company and any
other
Person.
SECTION
12.8. Notice
to Trustee.
(a) The
Company shall give prompt written notice to a Responsible Officer of the Trustee
of any fact known to the Company that would prohibit the making of any payment
to or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this Article XII or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts
that would prohibit the making of any payment to or by the Trustee in respect
of
the Securities, unless and until a Responsible Officer of the Trustee shall
have
received written notice thereof from the Company or a holder of Senior Debt
or
from any trustee, agent or representative therefor; provided, that if
the Trustee shall not have received the notice provided for in this Section
12.8 at least two Business Days prior to the date upon which by the terms
hereof any monies may become payable for any purpose (including, the payment
of
the principal of and any premium on or interest (including any Additional
Interest) on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such
monies and to apply the same to the purpose for which they were received and
shall not be affected by any notice to the contrary that may be received by
it
within two Business Days prior to such date.
(b) The
Trustee shall be entitled to rely on the delivery to it of a written notice
by a
Person representing himself or herself to be a holder of Senior Debt (or a
trustee, agent, representative or attorney-in-fact therefor) to establish that
such notice has been given by a holder of Senior Debt (or a trustee, agent,
representative or attorney-in-fact therefor). In the event that the Trustee
determines in good faith that further evidence is required with respect to
the
right of any Person as a holder of Senior Debt to participate in any payment
or
distribution pursuant to this Article XII, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as
to
the amount of Senior Debt held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article XII, and if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION
12.9. Reliance
on Judicial Order or Certificate of Liquidating Agent.
Upon
any
payment or distribution of assets of the Company referred to in this Article
XII, the Trustee and the Holders of the Securities shall be entitled to
conclusively rely upon any order or decree entered by any court of competent
jurisdiction in which such Proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the
-58-
benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid
or
distributed thereon and all other facts pertinent thereto or to this Article
XII.
SECTION
12.10. Trustee
Not Fiduciary for Holders of Senior Debt.
The
Trustee, in its capacity as trustee under this Indenture, shall not owe or
be
deemed to owe any fiduciary duty to the holders of Senior Debt and shall not
be
liable to any such holders if it shall in good faith mistakenly pay over or
distribute to Holders of Securities or to the Company or to any other Person
cash, property or securities to which any holders of Senior Debt shall be
entitled by virtue of this Article XII or otherwise.
SECTION
12.11. Rights
of Trustee as Holder of Senior Debt; Preservation of Trustee’s
Rights.
The
Trustee in its individual capacity shall be entitled to all the rights set
forth
in this Article XII with respect to any Senior Debt that may at any time
be held by it, to the same extent as any other holder of Senior Debt, and
nothing in this Indenture shall deprive the Trustee of any of its rights as
such
holder. With respect to the holders of Senior Debt of the Company, the Trustee
undertakes to perform only such of its obligations as are specifically set
forth
in this Article XII, and no implied covenants or obligations with respect to
the
holders of such Senior Debt shall be read into this Indenture against the
Trustee. Nothing in this Article XII shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.6.
SECTION
12.12. Article
Applicable to Paying Agents.
If
at any
time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term “Trustee” as used in
this Article XII shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article XII in addition to or in place of the Trustee;
provided, that Sections12.8 and 12.11 shall not
apply to the Company or any Affiliate of the Company if the Company or such
Affiliate acts as Paying Agent.
This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument. Delivery of an
executed signature page of this Indenture by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
*
* *
*
-59-
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the day and year first above written.
HARLEYSVILLE
NATIONAL CORPORATION
By: /s/
Xxxx X. Xxxxxxxx
Name: Xxxx
X.
Xxxxxxxx
Title: Chief
Executive Officer and President
WILMINGTON
TRUST COMPANY, not in its
individual
capacity, but solely as Trustee
By: /s/
X. X. Xxxxxx, XX
Name: W.
Xxxxxx Xxxxxx,
II
Title: Assistant
Vice President
[SIGNATURE
PAGE – JUNIOR SUBORDINATED INDENTURE AGREEMENT]
Schedule
A
DETERMINATION
OF LIBOR
With
respect to the Securities, the London interbank offered rate (“LIBOR”)
shall be determined by the Calculation Agent in accordance with the following
provisions (in each case rounded to the nearest .000001%):
(1) On
the second LIBOR Business Day (as defined below) prior to an Interest Payment
Date (each such day, a “LIBOR Determination Date”), LIBOR for any given
security shall, for the following interest payment period, equal the rate,
as
obtained by the Calculation Agent from Bloomberg Financial Markets Commodities
News, for three-month U.S. Dollar deposits in Europe, which appears on page
“LIBOR 01” of the Reuters Monitor Money Rates Service, or such other page as may
replace such page “LIBOR 01” from time to time, as of 11:00 a.m. (London time)
on such LIBOR Determination Date.
(2) If,
on any LIBOR Determination Date, such rate does not appear on page “LIBOR 01” of
the Reuters Monitor Money Rates Service or such other page as may replace such
page “LIBOR 01” from time to time, the Calculation Agent shall determine the
arithmetic mean of the offered quotations of the Reference Banks (as defined
below) to leading banks in the London interbank market for three-month U.S.
Dollar deposits in Europe in an amount determined by the Calculation Agent
by
reference to requests for quotations as of approximately 11:00 a.m. (London
time) on the LIBOR Determination Date made by the Calculation Agent to the
Reference Banks. If, on any LIBOR Determination Date, at least two of
the Reference Banks provide such quotations, LIBOR shall equal such arithmetic
mean of such quotations. If, on any LIBOR Determination Date, only
one or none of the Reference Banks provide such quotations, LIBOR shall be
deemed to be the arithmetic mean of the offered quotations that leading banks
in
the City of New York selected by the Calculation Agent are quoting on the
relevant LIBOR Determination Date for three-month U.S. Dollar deposits in Europe
in an amount determined by the Calculation Agent by reference to the principal
London offices of leading banks in the London interbank market; provided
that, if the Calculation Agent is required but is unable to determine
a
rate in accordance with at least one of the procedures provided above, LIBOR
shall be LIBOR as determined on the previous LIBOR Determination
Date.
(3) As
used herein: “Reference Banks” means four major banks in the London
interbank market selected by the Calculation Agent; and “LIBOR Business
Day” means a day on which commercial banks are open for business (including
dealings in foreign exchange and foreign currency deposits) in
London.
|
Schedule
A-1 |
Exhibit
A
[FORM
OF
JUNIOR SUBORDINATED NOTE DUE 2037]
[IF
THIS 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 THE
DEPOSITORY TRUST COMPANY (“DTC”) OR A NOMINEE OF DTC. THIS SECURITY
IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
DTC
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 DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE
OF
DTC) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS
THIS SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF 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 INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
THE
SECURITIES REPRESENTED BY THIS
CERTIFICATE WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND SUCH
SECURITIES, AND ANY INTEREST THEREIN, MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF ANY SECURITIES IS HEREBY NOTIFIED THAT
THE SELLER OF THE SECURITIES MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES
ACT.
THE
HOLDER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A)
SUCH SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO
THE
COMPANY, (II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, OR (III) 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 THE SECURITY FOR
ITS
OWN ACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,” WITHIN THE MEANING
OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT,
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
A-1
ACT,
IN
EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND, IN THE CASE OF (III),
SUBJECT TO THE RIGHT OF THE COMPANY TO REQUIRE AN OPINION OF COUNSEL ADDRESSING
COMPLIANCE WITH THE U.S. SECURITIES LAWS, AND OTHER INFORMATION SATISFACTORY
TO
IT AND (B) THE HOLDER WILL NOTIFY ANY PURCHASER OF ANY SECURITIES FROM IT OF
THE
RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE
SECURITIES WILL BE ISSUED AND MAY
BE TRANSFERRED ONLY IN BLOCKS HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS
THAN $100,000. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY ATTEMPTED
TRANSFER OF SECURITIES, OR ANY INTEREST THEREIN, IN A BLOCK HAVING AN AGGREGATE
PRINCIPAL AMOUNT OF LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF
SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED
NOT TO BE THE HOLDER OF SUCH SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT
LIMITED TO, THE RECEIPT OF PRINCIPAL OF OR INTEREST ON SUCH SECURITIES, OR
ANY
INTEREST THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO
INTEREST WHATSOEVER IN SUCH SECURITIES.
THE
HOLDER OF THIS SECURITY, OR ANY
INTEREST THEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF ALSO AGREES, REPRESENTS
AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT PLAN, INDIVIDUAL RETIREMENT
ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
“CODE”) (EACH A “PLAN”), OR AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT IN THE ENTITY, AND NO
PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR HOLD THIS SECURITY OR
ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE
EXEMPTIVE RELIEF AVAILABLE UNDER SECTION 408(b)(17) OF ERISA, U.S. DEPARTMENT
OF
LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14
OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY,
OR
ANY INTEREST THEREIN, ARE NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION
4975
OF THE CODE WITH RESPECT TO SUCH PURCHASE AND HOLDING. ANY PURCHASER OR HOLDER
OF THE SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED
BY
ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT
PLAN OR OTHER PLAN TO WHICH TITLE I OF ERISA OR SECTION 4975 OF
A-2
THE
CODE
IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE “PLAN ASSETS” OF
ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH
PURCHASE OR HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH FULL EXEMPTIVE RELIEF IS
NOT
AVAILABLE UNDER AN APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.
THIS
OBLIGATION IS NOT A DEPOSIT AND IS
NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES,
INCLUDING THE FEDERAL DEPOSIT INSURANCE CORPORATION.
A-3
Exhibit
A
Harleysville
National Corporation
Junior
Subordinated Note due 2037
No.
001 $23,196,000
Harleysville
National Corporation, a corporation organized and existing under the laws of
Pennsylvania (hereinafter called the “Company,” which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to HNC Statutory Trust IV (the “Holder”), or
registered assigns, the principal sum of $23,196,000 DOLLARS [if the
Security is a Global Security, then insert— or such other principal amount
represented hereby as may be set forth in the records of the Securities
Registrar hereinafter referred to in accordance with the Indenture] on October
30, 2037. The Company further promises to pay interest on said
principal sum from August 22, 2007, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, quarterly (subject
to
deferral as set forth herein) in arrears on January 30, April 30, July 30,
and
October 30 of each year, commencing on October 30, 2007, or if any such day
is
not a Business Day, on the next succeeding Business Day (and no interest shall
accrue in respect of the amounts whose payment is so delayed for the period
from
and after such Interest Payment Date until such next succeeding Business Day),
except that, if such Business Day falls in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in each
case, with the same force and effect as if made on the Interest Payment Date,
at
a fixed rate per annum equal to 6.35% through the Interest Payment Date in
October 2012, and a variable rate per annum, reset quarterly, equal to LIBOR
plus 1.28% thereafter, together with Additional Tax Sums, if any, as provided
in
Section 10.5 of the Indenture, until the principal hereof is paid or duly
provided for or made available for payment; provided, that any overdue
principal, premium, if any, or Additional Tax Sums and any overdue installment
of interest shall bear Additional Interest (to the extent that the payment
of
such interest shall be legally enforceable) at a fixed rate per annum equal
to
6.35% through the Interest Payment Date in October 2012, and a variable rate
per
annum, reset quarterly, equal to LIBOR plus 1.28% thereafter, compounded
quarterly, from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on
demand.
The
amount of interest payable for any interest period shall be computed and paid
on
the basis of a 360-day year and the actual number of days elapsed in the
relevant interest period. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date shall, as provided in the Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest installment. Any such interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder
on
such Regular Record Date and may either be paid to the Person in whose name
this
Security (or one or more Predecessor Securities) is registered at the close
of
business on a Special Record Date for the payment of such Defaulted Interest
to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
not less than ten (10) days prior to such Special Record Date, or be paid at
any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange or automated quotation system on which the Securities may
be
listed, traded or quoted and upon such notice as may be required by such
exchange or automated quotation system, all as more fully provided in the
Indenture.
A-4
So
long
as no Event of Default pursuant to Sections 5.1(c), (e),
(f), (g) or (h) of the Indenture has occurred and
is
continuing, the Company shall have the right, at any time and from time to
time
during the term of this Security, to defer the payment of interest on this
Security for a period of up to twenty (20) consecutive quarterly interest
payment periods (each such period, an “Extension Period”), during which
Extension Period(s), no interest shall be due and payable (except any Additional
Tax Sums that may be due and payable). No Extension Period shall end
on a date other than an Interest Payment Date, and no Extension Period shall
extend beyond the Stated Maturity of the principal of this
Security. No interest shall be due and payable during an Extension
Period (except any Additional Tax Sums that may be due and payable), except
at
the end thereof, but each installment of interest that would otherwise have
been
due and payable during such Extension Period shall bear Additional Interest
(to
the extent payment of such interest would be legally enforceable) at a fixed
rate per annum equal to 6.35% through the Interest Payment Date in October
2012,
and a variable rate per annum, reset quarterly, equal to LIBOR plus 1.28%
thereafter, compounded quarterly, from the dates on which amounts would have
otherwise been due and payable until paid or made available for
payment. At the end of any such Extension Period, the Company shall
pay all interest then accrued and unpaid on this Security, together with such
Additional Interest. Prior to the termination of any such Extension
Period, the Company may further defer the payment of interest;
provided, that (i) all such previous and further extensions comprising
such Extension Period do not exceed twenty (20) quarterly interest payment
periods, (ii) no Extension Period shall end on a date other than an Interest
Payment Date and (iii) no Extension Period shall extend beyond the Stated
Maturity of the principal of this Security. Upon the termination of
any such Extension Period and upon the payment of all accrued and unpaid
interest and any Additional Interest then due on any Interest Payment Date,
the
Company may elect to begin a new Extension Period; provided, that (i)
such Extension Period does not exceed twenty (20) quarterly interest payment
periods, (ii) no Extension Period shall end on a date other than an Interest
Payment Date, (iii) no Extension Period shall extend beyond the Stated Maturity
of the principal of this Security and (iv) no Event of Default pursuant to
Sections 5.1(c), (e), (f), (g) or (h) has
occurred and is continuing. The Company shall give (i) the Holder of
this Security, (ii) the Trustee, (iii) the Property Trustee and (iv) any
beneficial owner of the Preferred Securities reasonably identified to the
Company (which identification may be made either by such beneficial owner or
by
the Purchaser) written notice of its election to begin any such Extension Period
no later than the close of business on the fifteenth (15th) Business
Day
prior to the next succeeding Interest Payment Date on which interest on this
Security would be payable but for such deferral.
During
any such Extension Period, the Company shall not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company’s Equity Interests, (ii)
vote in favor of or permit or otherwise allow any of its Subsidiaries to declare
or pay any dividends or distributions on, or redeem, purchase, acquire or make
a
liquidation payment with respect to or otherwise retire, any of such
Subsidiary’s Equity Interests entitling the holders thereof to a stated rate of
return, other than dividends or distributions on Equity Interests issued by
any
Subsidiary solely payable to the Company or any Subsidiary thereof (for the
avoidance of doubt, whether such Equity Interests are perpetual or otherwise),
or (iii) make any payment of principal of or any interest or premium on or
repay, repurchase or redeem any debt securities of the Company that rank
pari passu in all respects with or junior in interest to this Security
(other than (a) repurchases, redemptions or other acquisitions of Equity
Interests of the Company in connection with (1) any employment
A-5
contract,
benefit plan or other similar arrangement with or for the benefit of any one
or
more employees, officers, directors or consultants, (2) a dividend reinvestment
or stockholder stock purchase or similar plan with respect to any Equity
Interests or (3) the issuance of Equity Interests of the Company (or securities
convertible into or exercisable for such Equity Interests) as consideration
in
an acquisition transaction entered into prior to the applicable Extension
Period, (b) as a result of an exchange or conversion of any class or series
of
the Company’s Equity Interests (or any Equity Interests of a Subsidiary of the
Company) for any class or series of the Company’s Equity Interests or of any
class or series of the Company’s indebtedness for any class or series of the
Company’s Equity Interests, (c) the purchase of fractional interests in Equity
Interests of the Company pursuant to the conversion or exchange provisions
of
such Equity Interests or the security being converted or exchanged, (d) any
declaration of a dividend in connection with any Rights Plan, the issuance
of
rights, Equity Interests or other property under any Rights Plan, or the
redemption or repurchase of rights pursuant thereto or (e) any dividend in
the
form of Equity Interests, warrants, options or other rights where the dividend
Equity Interests or the Equity Interests issuable upon exercise of such
warrants, options or other rights are the same Equity Interests as those on
which the dividend is being paid or rank pari passu with or junior to
such Equity Interests).
Payment
of principal of, premium, if any, and interest on this Security shall be made
in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. Payments of
principal, premium, if any, and interest due at the Maturity of this Security
shall be made at the office or agency of the Company maintained for that purpose
in the Place of Payment upon surrender of such Securities to the Paying Agent,
and payments of interest shall be made, subject to such surrender where
applicable, by wire transfer at such place and to such account at a banking
institution in the United States as may be designated in writing to the Paying
Agent at least ten (10) Business Days prior to the date for payment by the
Person entitled thereto unless proper written wire transfer instructions have
not been received by the relevant record date, in which case such payments
shall
be made by check mailed to the address of such Person as such address shall
appear in the Security Register. 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 any overdue
installment of interest and Additional Tax Sums, 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 Debt, and this Security is issued subject to the provisions
of the Indenture with respect thereto. Each Holder of this Security, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such actions
as
may be necessary or appropriate to effectuate the subordination so provided
and
(c) appoints the Trustee his or her attorney-in-fact for any and all such
purposes. Each Holder hereof, by his or her acceptance hereof, waives all notice
of the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Debt, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said
provisions.
A-6
Unless
the certificate of authentication hereon has been executed by the Trustee by
manual signature, this Security shall not be entitled to any benefit under
the
Indenture or be valid or obligatory for any purpose.
A-7
Exhibit
A
IN
WITNESS WHEREOF, the Company has duly executed this certificate this 22nd day of
August,
2007.
HARLEYSVILLE
NATIONAL CORPORATION
By:
Name: Xxxx
X. Xxxxxxxx
Title: Chief
Executive Officer and President
This
represents Securities referred to in the within-mentioned
Indenture.
Dated: August
22, 2007
WILMINGTON
TRUST COMPANY, not in its individual capacity but solelyas
Trustee
By:
Authorized
Officer
A-8
Exhibit
A
[FORM
OF
REVERSE OF SECURITY]
This
Security is one of a duly authorized issue of securities of the Company (the
“Securities”) issued under the Junior Subordinated Indenture, dated as
of August 22, 2007 (the “Indenture”), between the Company and
Wilmington Trust Company, as Trustee (in such capacity, the “Trustee,”
which term includes any successor trustee under the Indenture), to
which
Indenture and all indentures supplemental thereto reference is hereby made
for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee, the holders of Senior Debt and the
Holders of the Securities, and of the terms upon which the Securities are,
and
are to be, authenticated and delivered.
All
terms
used in this Security that are defined in the Indenture or in the Amended and
Restated Trust Agreement, dated as of August 22, 2007 (as modified, amended
or
supplemented from time to time, the “Trust Agreement”), relating to HNC
Statutory Trust IV (the “Trust”), among the Company, as Depositor, the
trustees named therein and the holders from time to time of the Trust Securities
issued pursuant thereto, shall have the meanings assigned to them in the
Indenture or the Trust Agreement, as the case may be.
The
Company may, on any Interest Payment Date, at its option, upon not less than
thirty (30) days’ nor more than sixty (60) days’ written notice to the Holders
of the Securities (unless a shorter notice period shall be satisfactory to
the
Trustee) on or after October 30, 2012 and subject to the terms and conditions
of
Article XI of the Indenture, redeem this Security in whole at any time or
in part from time to time at a Redemption Price equal to one hundred percent
(100%) of the principal amount hereof, together, in the case of any such
redemption, with accrued interest, including any Additional Interest, to but
excluding the date fixed for redemption; provided, that the Company
shall have received the prior approval of the Federal Reserve if then
required.
In
addition, upon the occurrence and during the continuation of a Special Event,
the Company may, at its option, upon not less than thirty (30) days’ nor more
than sixty (60) days’ written notice to the Holders of the Securities (unless a
shorter notice period shall be satisfactory to the Trustee), redeem this
Security, in whole but not in part, subject to the terms and conditions of
Article XI of the Indenture at the Special Event Redemption Price;
provided, that the Company shall have received the prior approval
of
the Federal Reserve if then required.
In
the
event of redemption of this Security in part only, a new Security or Securities
for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof. If less than all the Securities
are to be redeemed, the particular Securities to be redeemed shall be selected
not more than sixty (60) days prior to the Redemption Date by the Trustee from
the Outstanding Securities not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of a portion of the principal amount of any
Security.
The
Indenture permits, with certain exceptions as therein provided, the Company
and
the Trustee at any time to enter into a supplemental indenture or indentures
for
the purpose of modifying in any manner the rights and obligations of the Company
and of the Holders of the Securities, with the consent of the Holders of not
less than a majority in principal amount of the Outstanding Securities. The
Indenture also contains provisions permitting Holders of specified
A-9
percentages
in principal amount of the Securities, on behalf of the Holders of all
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and
of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver
is
made upon this Security.
No
reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and any premium and interest,
including any Additional Interest, on this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is registrable in the Securities Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Company maintained for such purpose, duly endorsed by, or accompanied
by
a written instrument of transfer in form satisfactory to the Company and the
Securities Registrar and duly executed by, the Holder hereof or such Holder’s
attorney duly authorized in writing, and thereupon one or more new Securities,
of like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The
Securities are issuable only in registered form without coupons in minimum
denominations of $100,000 and any integral multiple of $1,000 in excess thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities are exchangeable for a like aggregate principal amount of
Securities and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Company, the Trustee and any agent of the Company or the Trustee may treat
the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company,
the
Trustee nor any such agent shall be affected by notice to the
contrary.
The
Company and, by its acceptance of this Security or a beneficial interest herein,
the Holder of, and any Person that acquires a beneficial interest in, this
Security agree that, for United States federal, state and local tax purposes,
it
is intended that this Security constitute indebtedness.
This
Security shall be construed and
enforced in accordance with and governed by the laws of the State of New York,
without reference to its conflict of laws provisions (other than Section 5-1401
of the General Obligations Law).
A-10
Exhibit
B
Form
of
Financial Officer’s Certificate
The
undersigned, the [Chief Financial Officer] [Treasurer] [Assistant Treasurer]
hereby certifies, pursuant to Section 7.3(b) of the Junior Subordinated
Indenture, dated as of August 22, 2007, between Harleysville National
Corporation (the “Company”) and Wilmington Trust Company, as
trustee, that, as of _______, 20__, the Company had the following
ratios and balances:
BANK
HOLDING COMPANY
As
of
[Quarterly Financial Dates]
|
Tier
1 Risk Weighted Assets
|
%
|
|
Ratio
of Double Leverage
|
%
|
|
Non-Performing
Assets to Loans and OREO
|
%
|
|
Tangible
Common Equity as a Percentage of Tangible Assets
|
%
|
|
Ratio
of Reserves to Non-Performing Loans
|
%
|
|
Ratio
of Net Charge-Offs to Loans
|
%
|
|
Return
on Average Assets (annualized)
|
%
|
|
Net
Interest Margin (annualized)
|
%
|
|
Efficiency
Ratio
|
%
|
|
Ratio
of Loans to Assets
|
%
|
|
Ratio
of Loans to Deposits
|
%
|
|
Double
Leverage (exclude trust preferred as equity)
|
%
|
|
Total
Assets
|
$
|
|
Year
to Date Income
|
$
|
*
A table
describing the quarterly report calculation procedures is attached.
[FOR
FISCAL YEAR END: Attached hereto are the audited consolidated financial
statements (including the balance sheet, income statement and statement of
cash
flows, and notes thereto, together with the report of the independent
accountants thereon) of the Company and its consolidated subsidiaries for the
three years ended _______, 20___.]
[FOR
FISCAL QUARTER END: Attached hereto are the unaudited consolidated and
consolidating financial statements (including the balance sheet and income
statement) of the Company and its consolidated subsidiaries for the fiscal
quarter and [six/nine] month period ended _______, 20___.]
The
financial statements fairly present in all material respects, in accordance
with
U.S. generally accepted accounting principles (“GAAP”), the financial position
of the Company and its consolidated subsidiaries, and the results of operations
and changes in financial condition as of
B-1
the
date,
and for the [___ quarter interim] [annual] period ended _______, 20__, and
such
financial statements have been prepared in accordance with GAAP consistently
applied throughout the period involved (except as otherwise noted
therein).
IN
WITNESS WHEREOF, the undersigned has executed this Financial Officer’s
Certificate as of this _____ day of _____________, 20__
Name:
Title:
Harleysville
National Corporation
000
Xxxx
Xx.
Xxxxxxxxxxxx,
XX 00000
(000)
000-0000
B-2
Financial
Definitions
Bank
Holding Company
|
Report
Item
|
Corresponding
FRY-9C or LP Line Items with Line Item corresponding
Schedules
|
Description
of Calculation
|
|
Tier
1 Risk
Weighted
Assets
|
BHCK7206
Schedule
HC-R
|
Tier
1 Risk Ratio: Core Capital (Tier 1)/ Risk-Adjusted
Assets
|
|
Ratio
of Double Leverage
|
(BHCP0365)/(BCHCP3210)
Schedule
PC in the LP
|
Total
equity investments in subsidiaries divided by the total equity capital.
This field is calculated at the parent company level. “Subsidiaries”
include bank, bank holding company, and non-bank
subsidiaries.
|
|
Non-Performing
Assets to Loans and OREO
|
(BHCK5525-BHCK3506+BHCK5526-BHCK3507+BHCK2744/(BHCK2122+BHCK2744)
Schedules HC-C, HC-M & HC-N
|
Total
Nonperforming Assets (NPLs+Foreclosed Real Estate+Other Nonaccrual
&
Repossessed Assets)/Total Loans+Foreclosed Real Estate
|
|
Tangible
Common Equity as a Percentage of Tangible Assets
|
(BHDM3210-BHCK3163)/(BHCK2170-BHCK3163)
Schedule
HC
|
(Equity
Capital – Goodwill)/(Total Assets – Goodwill)
|
|
Ratio
of Reserves to Non-Performing Loans
|
(BHCK3123+BHCK3128)/(BHCK5525-BHCK3506+BHCK5526-BHCK3507)
Schedules
HC & HC-N & HC-R
|
Total
Loan Loss and Allocated Transfer Risk Reserves/ Total Nonperforming
Loans
(Nonaccrual
+ Restructured)
|
|
Ratio
of Net Charge-Offs to Loans
|
(BHCK4635-BHCK4605)/(BHCK3516)
Schedules
HI-B & HC-K
|
Net
charge offs for the period as a percentage of average
loans.
|
|
Return
on Average Assets (annualized)
|
(BHCK4340/BHCK3368)
Schedules
HI & HC-K
|
Net
Income as a percentage of Assets.
|
|
Net
Interest Margin (annualized)
|
(BHCK4519/(BHCK3515+BHCK3365+BHCK3516+BHCK3401+BHCKB985)
Schedules
HI Memorandum and HC-K
|
(Net
Interest Income Fully Taxable Equivalent, if available/Average Earning
Assets)
|
|
Efficiency
Ratio
|
(BHCK4093)/(BHCK4519+BHCK4079)
Schedule
HI
|
(Non-interest
Expense)/(Net Interest Income Fully Taxable Equivalent, if available,
plus
Non-interest Income)
|
|
Ratio
of Loans to Assets
|
(BHCKB528+BHCK5369)/(BHCK2170)
Schedule
HC
|
Total
Loans & Leases (Net of Unearned Income & Gross of Reserve)/Total
Assets
|
|
Ratio
of Loans to Deposits
|
(BHCKB528+BHCK5369)/(BHDM6631+BHDM6636+BHFN6631+BHFN6636)
Schedule
HC
|
Total
Loans & Leases (Net of Unearned Income & Gross of Reserve)/Total
Deposits (Includes Domestic and Foreign
Deposits)
|
B-3
|
Total
Assets
|
(BHCK2170)
Schedule
HC
|
The
sum of total assets. Includes cash and balances due from depository
institutions; securities; federal funds sold and securities purchased
under agreements to resell; loans and lease financing receivables;
trading
assets; premises and fixed assets; other real estate owned; investments
in
unconsolidated subsidiaries and associated companies; customer’s liability
on acceptances outstanding; intangible assets; and other
assets.
|
|
Net
Income
|
(BHCK4300)
Schedule
HI
|
The
sum of income (loss)before extraordinary items and other adjustments
and
extraordinary items; and other adjustments, net of income
taxes.
|
B-4
Exhibit
C
FORM
OF
OFFICERS’
CERTIFICATE
UNDER
SECTION
10.3
Pursuant
to Section 10.3 of the Junior
Subordinated Indenture, dated as of August 22, 2007 (as amended or supplemented
from time to time, the “Indenture”), between Harleysville National Corporation,
as issuer (the “Company”), and Wilmington Trust Company, as trustee, each of the
undersigned hereby certifies that, to the knowledge of the undersigned, the
Company is not in default in the performance or observance of any of the terms,
provisions or conditions contained in the Indenture (without regard to any
period of grace or requirement of notice provided under the Indenture), for
the
fiscal year ending on December 31, 2007 [, except as follows: specify each
such default and the nature and status thereof].
Capitalized
terms used herein, and not
otherwise defined herein, have the respective meanings assigned thereto in
the
Indenture.
IN
WITNESS WHEREOF, the undersigned
have executed this Officers’ Certificate as of August 22, 2007.
Name: Xxxx
X.
Xxxxxxxx
Title: Chief
Executive Officer and President
of
Harleysville National Corporation
Name: Xxxxxx
X.
Xxxx
Title: Chief
Financial Officer and
Executive
Vice President
of
Harleysville National
Corporation
C-1
