FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE dated as of ________________, 1997 ("First
Supplemental Indenture") to the Indenture dated as of ________________, 1997
(the "Indenture") between St. Xxxx Bancorp, Inc., a Delaware corporation (herein
called the "Company"), and Xxxxxx Trust and Savings Bank, a national banking
association duly organized and existing under the laws of the United States of
America (herein called the "Trustee"), having its Corporate Trust Office located
at 000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000.
WHEREAS, the Company has heretofore executed and delivered to the Trustee
the Indenture;
WHEREAS, the Company desires in and by this First Supplemental Indenture to
create a first series of securities to be issued under the Indenture, to
designate or otherwise distinguish such series, to specify the particulars
necessary to describe and define the same, and to specify such other provisions
and agreements in respect thereof as are in the Indenture provided or permitted;
and
WHEREAS, all acts and things necessary to make this First Supplemental
Indenture, when duly executed and delivered, a valid, binding and legal
instrument in accordance with its terms and for the purposes herein expressed,
have been done and performed; and the execution and delivery of this First
Supplemental Indenture have been in all respects duly authorized;
NOW, THEREFORE, in consideration of the premises, the sum of one dollar
duly paid by the Trustee to the Company at or before the execution and delivery
of this First Supplemental Indenture, and for other good and valuable
consideration, the receipt thereof is hereby acknowledged, the Company covenants
and agrees to and with the Trustee for the equal and proportionate benefit and
security of the holders of the securities as hereinafter set forth:
ARTICLE I
_____% SENIOR NOTES DUE 2004
Section 1.1. There is hereby created a first series of securities to be
issued under and secured by the Indenture and to be designated as the ____%
Senior Notes Due 2004 (herein called the "Notes").
Section 1.2. The aggregate principal amount of the Notes which may be
authenticated for original issue shall not exceed $100,000,000.
Section 1.3. The Notes will be represented by one or more global
securities which shall bear a legend to the extent required by Section 2.3 of
the Indenture and shall be deposited with The Depository Trust Company ("DTC"),
which is designated as Depository under the Indenture.
Section 1.4. The maturity of the Notes shall be _____________, 2004.
Section 1.5. The Notes shall bear interest from the date of original
issuance at an interest rate of ____% per annum until paid in full.
Interest will be payable on each Interest Payment Date to the person who is the
Holder as of the close of business on the Regular Record Date. The Regular
Record Date for the Notes shall be the seventh day of the month (whether or not
a Business Day) immediately preceding an Interest Payment Date. Interest will
accrue, at the applicable interest rate as set forth above, from and including
each Interest Payment Date (or, in the case of the first Interest Payment Date
from the date of issuance) to but excluding the next Interest Payment Date. In
the event an Interest Payment Date falls on a day other than a Business Day,
interest will be paid on the next succeeding Business Day and no interest on
such payment shall accrue for the period from and after such Interest Payment
Date to such next succeeding Business Day. The amount of interest payable on
each Interest Payment Date will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
Section 1.6. The Notes may be redeemed at the option of the Company, in
whole or in part, at any time, at a Redemption Price equal to the Make-Whole
Amount (as defined below). Article X of the Indenture shall be applicable to
any redemption pursuant to this Section 1.6. The Notes may not be otherwise
redeemed at the option of the Company.
For the purposes of this Section 1.6, the following terms shall have
the following meanings:
"Adjusted Treasury Rate" means, with respect to any Redemption Date, the
Treasury Rate plus 25 basis points.
"Comparable Treasury Issue" means with respect to any Redemption Date the
United States Treasury security selected by the Quotation Agent as having a
maturity comparable to the Remaining Life that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to Remaining Life. If
no United States Treasury security has a maturity which is within a period from
three months before to three months after _________________, 2004, the two most
closely corresponding United
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States Treasury securities shall be used as the Comparable Treasury Issue, and
the Treasury Rate shall be interpolated or extrapolated on a straight-line
basis, rounding to the nearest month using such securities.
"Comparable Treasury Price" means (i) the average of five Reference
Treasury Dealer Quotations for the Redemption Date, after excluding the highest
and lowest of the Reference Treasury Dealer Quotations, or (ii) if the Trustee
obtains fewer than five Reference Treasury Dealer Quotations, the average of all
such Quotations.
"Make-Whole Amount" means the amount equal to the greater of (i) 100% of
the principal amount of the Notes being redeemed, and (ii) as determined by the
Quotation Agent, the sum of the present value of 100% of the principal amount
that would be payable with respect to the Notes being redeemed on ___________,
2004, together with the present values of scheduled payments of interest for the
Remaining Life, in each case discounted to the Redemption Date on a semi-annual
basis (assuming a 360-day year consisting of 30-day months) at the Adjusted
Treasury Rate.
"Quotation Agent" means Xxxxxx Xxxxxxx & Co. and its successors; provided,
however, that if the foregoing shall cease to be a primary United States
Government securities dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute another Primary Treasury Dealer.
"Reference Treasury Dealer" means (i) the Quotation Agent and (ii) any
other Primary Treasury Dealer selected by the Trustee after consultation with
the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by a Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding the Redemption Date.
"Remaining Life" means the period from the Redemption Date to
__________________, 2004.
"Treasury Rate" means (i) the yield, under the heading which represents the
average for the week immediately prior to the calculation date, appearing in the
most recently published statistical release designated "H.15(519)" or any
successor publication which is published weekly by the Federal Reserve and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to
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the Remaining Life (if no maturity is within three months before or after the
Remaining Life, yields for the two published maturities most closely
corresponding to the Remaining Life shall be determined and the Treasury Rate
shall be interpolated or extrapolated from such yields on a straight line basis,
rounding to the nearest month) or (ii) if such release (or any successor
release) is not published during the week preceding the calculation date or does
not contain such yields, the rate per annum equal to the semi-annual equivalent
yield to maturity of the Comparable Treasury Issue, calculated using a price for
the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such Redemption Date. The
Treasury Rate shall be calculated on the third Business Day preceding the
Redemption Date.
Section 1.7. The Notes shall have such other terms and provisions, to the
extent not inconsistent with the foregoing, as are set forth in the Indenture
and the form of Note attached as Exhibit A hereto.
ARTICLE II
MISCELLANEOUS
Section 2.1. Unless otherwise defined herein, all capitalized terms used
in this First Supplemental Indenture have the respective meanings set forth in
the Indenture. This First Supplemental Indenture may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original, and all of such counterparts shall together constitute one and the
same instrument. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect.
Section 2.2. Each of the Company and the Trustee makes and reaffirms as
of the date of execution of this First Supplemental Indenture all of its
respective covenants and agreements set forth in the Indenture.
Section 2.3. All covenants and agreements in this First Supplemental
Indenture by the Company or the Trustee shall bind its respective successors and
assigns, whether so expressed or not.
Section 2.4. In case any provision in this First Supplemental Indenture
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions or of the Indenture shall not in any
way be affected or impaired thereby.
Section 2.5. Nothing in this First Supplemental Indenture, expressed or
implied, shall give to any person, other than the parties hereto and their
successors under the Indenture and the
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Holders of the Securities, any benefit or any legal or equitable right, remedy
or claim under the Indenture.
Section 2.6. If any provision hereof limits, qualifies or conflicts with
a provision of the Trust Indenture Act of 1939, as amended, that is required
under such Act to be a part of and govern this First Supplemental Indenture,
such required provision shall control. If any provision hereof modifies or
excludes any provision of such Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this First Supplemental Indenture
as so modified or shall be excluded, as the case may be.
Section 2.7. This First Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York without regard to
principles of conflicts of laws.
Section 2.8. All provisions of this First Supplemental Indenture shall be
deemed to be incorporated in, and made a part of, the Indenture; and the
Indenture, as amended and supplemented by this First Supplemental Indenture,
shall be read, taken and construed as one and the same instrument.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed, all as of the day and year first above written.
[SEAL] ST. XXXX BANCORP, INC.
Attest:
By:________________________ By_______________________________
Name: Name:
Title: Title:
[SEAL] XXXXXX TRUST AND SAVINGS BANK,
as Trustee
Attest:
By:________________________ By_______________________________
Name: Name:
Title: Title:
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EXHIBIT A
---------
ST. XXXX BANCORP, INC.
____% SENIOR NOTE DUE 2004
NO. R-1
CUSIP NO. ______________ U.S. $100,000,000
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC" OR THE "DEPOSITORY"), TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE 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 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 SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
ST. XXXX BANCORP, INC., a Delaware corporation (hereinafter called the
"Company", which term includes any successor corporation under the Indenture
referred to), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the sum of One Hundred Million Dollars (U.S.$100,000,000) on
______________, 2004, and to pay interest (computed on the basis of a 360-day
year of twelve 30-day months) thereon from ____________, 1996, or from and
including the most recent Interest Payment Date (as hereinafter defined) to
which interest has been paid or duly provided for, semi-annually on
______________ and ______________ in each year, commencing ______________, 1997,
through maturity (each an "Interest Payment Date"), until the principal hereof
is paid or has been duly provided for, at the rate of ___% per annum. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in said Indenture, be paid to the Person in whose
name this Note (or one or more Predecessor Securities, as defined in said
Indenture) is registered at the close of business on the __________ or
__________, as the case may be, next preceding each Interest Payment Date. Any
such interest not so punctually paid or duly provided for shall forthwith cease
to be payable to the registered Holder on each Interest Payment Date and may be
paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on a record date not more
than 15 days and not less than 10 days prior to the date fixed by the Trustee
for payment of such defaulted interest and not less than 10 days after the
receipt by the Trustee from the Company of notice of the proposed payment,
notice of which record date shall be given to
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Holders of Notes not less than 10 days prior to such record date, or may be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture. Payment of the principal of and interest on this Note will be made at
the office or agency of the Company maintained for that purpose in The City of
_______________, 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,
provided, however, that at the option of the Company payment of interest may be
made (subject to collection) by check mailed to the address of the Person
entitled thereto as such address shall appear on the Securities Register.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
* * *
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY
OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR.
DATED: ___________________, 1997
ST. XXXX BANCORP, INC.
By:____________________________
Name:
Title:
[Seal]
ATTEST:
________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated and referred to in the
within-mentioned Indenture.
XXXXXX TRUST AND SAVINGS BANK,
as Trustee
By:____________________________
Authorized Signatory
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[Reverse of Note]
ST. XXXX BANCORP, INC.
____% SENIOR NOTE DUE 2004
This Note is one of a duly authorized issue of debentures, notes or other
evidences of indebtedness (hereinafter called the "Securities") of the Company,
all such Securities issued and to be issued under an Indenture for Debt
Securities (herein, together with all indentures supplemental thereto, called
the "Indenture") dated as of _______________, 1997, between the Company and
Xxxxxx Trust and Savings Bank, as Trustee, to which Indenture reference is
hereby made for a specification of the rights and limitation of rights
thereunder of the Holders of the Securities and of the rights, obligations,
duties and immunities of the Trustee and of the Company. As provided in the
Indenture, the Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest, if any, at different rates, may be subject
to different redemption provisions, if any, may be subject to different sinking,
purchase or analogous funds, if any, may be subject to different covenants and
Events of Default and may otherwise vary as in the Indenture provided or
permitted. This Note is one of a series designated on the face hereof (the
"Notes").
The Notes are redeemable by the Company prior to maturity as set forth in
the Indenture. The Notes do not provide for any sinking fund.
If any Event of Default with respect to the Notes, as defined in the
Indenture, shall occur and be continuing, the principal of the Notes may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company with the consent of the Holders of a majority in
aggregate principal amount of the Securities at the time Outstanding, as defined
in the Indenture, of each series of Securities to be affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of any series at the
time Outstanding, as defined in the Indenture, on behalf of the Holders of all
the Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences
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with respect to such series. Any such consent or waiver by the Holder of this
Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the transfer herefor or in
exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note 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, this Note is transferable on the Securities Register of the Company, upon
surrender of this Note for registration of transfer at the office or agency of
the Company to be maintained for that purpose in The City of _________________,
duly endorsed by, or accompanied by a written instrument of transfer in the form
satisfactory to the Company and the Securities Registrar duly executed by the
Holder herefor or his attorney duly authorized in writing, and thereupon one or
more new Notes, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of a like tenor and
of a different authorized denomination, as requested by the Holder surrendering
the same.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.3 of the Indenture, the
Company shall appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of such series is not
appointed by the Company within 90 days after the issuer receives such notice or
becomes aware of such ineligibility, the Company's election pursuant to Section
3.1 of the Indenture shall no longer be effective with respect to the
Securities of such series and the Company shall execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of certificated
Securities of such series of like tenor, shall authenticate and deliver
Securities of such series of like tenor in certificated form, in authorized
denominations and in an aggregate principal amount equal to the principal
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amount of the Security or Securities of such series of like tenor in global form
in exchange for such Security or Securities in global form.
The Company may at any time in its sole discretion determine that
Securities of a series issued in global form shall no longer be represented by
such a Security or Securities in global form. In such event the Company shall
execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form. Except as provided above, owners of beneficial interests in
this permanent global Note will not be entitled to receive physical delivery of
Notes in certificated registered form and will not be considered the Holders
thereof for any purpose under the Indenture.
No recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or any indenture supplemental thereto or in this Note,
or because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor corporation, either
directly or indirectly through the Company or any successor corporation, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment, penalty or by any legal or equitable proceeding or otherwise,
all such liability being expressly waived and released by the acceptance hereof
and as a condition of and as part of the consideration for the issue hereof.
The Indenture with respect to any series will be discharged and cancelled
except for certain Sections thereof, subject to the terms of the Indenture, upon
the payment of all the Securities of such series or upon the irrevocable deposit
with the Trustee of cash or Government Obligations (or a combination thereof)
sufficient for such payment in accordance with Article 4 of the Indenture.
Certain terms used in this Note which are defined in the Indenture have the
meanings set forth therein.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
The Company, the Trustee and any agent of the Company or the Trustee may
deem and treat the person in whose name this Note is
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registered as the owner hereof for all purposes, whether or not this Note be
overdue and notwithstanding any notation of ownership or other writing hereon,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
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ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT -
___________________ Custodian ______________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
____________________________________________________
Additional abbreviations may also be used though not in the above list.
__________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
____________________________________
____________________________________
(Please Print or Typewrite Name and Address of Assignee)
the within instrument of ST. XXXX BANCORP, INC. and does hereby irrevocably
constitute and appoint _______________________________________________________
_______ Attorney to transfer said instrument on the books of the within-named
Company, with full power of substitution in the premises.
Dated _____________ _________________________
Signature
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration by enlargement or any change whatever.
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