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FOURTH SUPPLEMENTAL INDENTURE among Xxxxxxxx Financial Corporation, formerly
called CVD Financial Corporation, a corporation incorporated pursuant to the
laws of the State of Delaware (the "Corporation"), The Bank of Nova Scotia
Trust Company of New York (the "Trustee"), a trust company organized pursuant
to the laws of the State of New York, and Xxxxxxxx Financial (B.C.) Ltd., a
company incorporated pursuant to the laws of the Province of British
Columbia, Canada (the "Subsidiary") dated for reference February 4, 1998 (the
"Fourth Supplemental Indenture") to the CVD Financial 1993 Master Indenture
made between the Corporation and Xxxxxx Trust Company of New York, dated
August 26, 1993, as amended by a First Supplemental Indenture dated November
30, 1993, a Second Supplemental Indenture dated October 23, 1996, and a Third
Supplemental Indenture dated May 15, 1997 (collectively, the "Indenture").
WHEREAS:
A. The Corporation entered into the Indenture to provide for the
issuance of the Corporation's unsecured subordinated variable rate bonds (the
"Securities") to be issued in one or more series as provided in the
Indenture;
B. The Corporation wishes to transfer (the "Transfer") certain of its
properties and assets to the Subsidiary, a wholly-owned subsidiary of the
Corporation, such Transfer not constituting a transfer of the Corporation's
properties and assets substantially as an entirety as set out in section 801
of the Indenture;
C. In order to protect the interests of the Holders of the Securities,
the Corporation has agreed to cause the Subsidiary to become a primary
obligor under the Indenture, jointly and severally with the Corporation; and
D. Section 901 of the Indenture provides that the Corporation and the
Trustee, without the consent of any of the holders of the Securities, may
enter into one or more indentures supplemental to the Indenture to add to,
change or eliminate any of the provisions of the Indenture, provided that any
such addition, change or elimination shall not adversely affect the interests
of the Holder of any Outstanding Security in any material respect;
NOW THEREFORE THIS INDENTURE WITNESSES THAT the parties agree as follows:
SECTION 1
DECLARATION AND INTERPRETIVE PROVISIONS
1.1 This Fourth Supplemental Indenture is declared to be supplemental to
the Indenture and is to form part of and shall have the same effect as though
incorporated in the Indenture. The Indenture is a part of this Fourth
Supplemental Indenture and is, by this reference, included herein with the
same effect as though at length set forth herein. In this Fourth
Supplemental Indenture, unless there is something in the subject or context
inconsistent therewith, the expressions herein used shall have the same
meaning as corresponding expressions used in the Indenture and all the
provisions of the Indenture, except only so far as may be inconsistent with
the express provisions of this Fourth Supplemental Indenture, shall apply to
and have effect in connection with this Fourth Supplemental Indenture.
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SECTION 2
EFFECTIVE DATE
2.1 This Fourth Supplemental Indenture will be effective from and after
February 4, 1998 (the "Effective Date"), irrespective of the actual dates of
the execution hereof.
SECTION 3
ENUREMENT
3.1 This Fourth Supplemental Indenture will enure to the benefit of and
be binding upon the parties hereto and their respective successors and
assigns.
SECTION 4
REPRESENTATIONS AND WARRANTIES
4.1 As of the Effective Date, the Subsidiary represents and warrants
that it has no indebtedness or any other mortgage, pledge, lien, security
interest or other encumbrance outstanding, other than unsecured indebtedness
owing to the Corporation.
SECTION 5
AMENDMENT
5.1 The Indenture and the Securities are hereby amended so that the
references to the "Company" in the Indenture and the Securities refer to
either both the Corporation and the Subsidiary or either the Corporation or
the Subsidiary, as appropriate in the context, such that the Subsidiary is
added as a primary obligor under the Indenture and the interests of the
Holder of any Security shall not be adversely affected in any material
respect by the Transfer.
5.2 For greater certainty, the Subsidiary covenants and agrees for the
benefit of the Securities that it will duly and punctually pay the principal
of and interest on the Securities in accordance with the terms of the
Securities and the Indenture, and that it will severally and jointly with the
Corporation perform or observe every covenant of the Indenture to be
performed or observed by the Corporation. The parties hereto agree that the
Subsidiary may exercise every right and power of the Corporation under the
Indenture with the same effect as if the Subsidiary had been named as the
Corporation therein.
SECTION 6
COUNTERPARTS
6.1 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 constitute but one and the same instrument.
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SECTION 7
MISCELLANEOUS
7.1 The Indenture and the Securities as amended or modified by this
Fourth Supplemental Indenture, in all respects, are ratified and confirmed
and the Indenture as so amended shall be read, taken and construed as one and
the same instrument. This Fourth Supplemental Indenture shall become
effective upon execution and delivery hereof by all parties hereto.
7.2 The Trustee accepts the modification of the Indenture effected by
this Fourth Supplemental Indenture, but only upon the terms and conditions
set forth in the Indenture. Without limiting the generality of the
foregoing, the Trustee assumes no responsibility for the accuracy of the
recitals contained herein, which recitals shall be taken as the statements of
the Corporation.
7.3 This Fourth Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental
Indenture to be duly executed effective as of the date set out herein.
XXXXXXXX FINANCIAL CORPORATION
(FORMERLY CVD FINANCIAL CORPORATION)
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: President
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THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK, AS TRUSTEE
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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XXXXXXXX FINANCIAL (B.C.) LTD.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Secretary and Chief Financial Officer
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