EXHIBIT 4.1
INDENTURE
BY AND BETWEEN
UNITED BANCORPORATION OF ALABAMA, INC.
AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS TRUSTEE
FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURES DUE JUNE 30, 2032
EFFECTIVE AS OF JUNE 27, 2002
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS................................................................................2
Section 1.1 Definitions of Terms..............................................................2
ARTICLE II ISSUE, DESCRIPTION, TERMS, CONDITIONS, REGISTRATION AND EXCHANGE OF THE DEBENTURES........10
Section 2.1 Designation and Principal Amount.................................................10
Section 2.2 Maturity.........................................................................10
Section 2.3 Form and Payment.................................................................10
Section 2.4 Intentionally Left Blank.........................................................11
Section 2.5 Interest.........................................................................11
Section 2.6 Execution and Authentications....................................................13
Section 2.7 Registration of Transfer and Exchange............................................14
Section 2.8 Temporary Debentures.............................................................17
Section 2.9 Mutilated, Destroyed, Lost or Stolen Debentures..................................18
Section 2.10 Cancellation.....................................................................18
Section 2.11 Benefit of Indenture.............................................................19
Section 2.12 Authentication Agent.............................................................19
ARTICLE III REDEMPTION OF DEBENTURES..................................................................20
Section 3.1 Special Event Redemption.........................................................20
Section 3.2 Optional Redemption by Company...................................................20
Section 3.3 Notice of Redemption.............................................................21
Section 3.4 Payment Upon Redemption..........................................................22
Section 3.5 No Sinking Fund..................................................................23
ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD......................................................23
Section 4.1 Extension of Interest Payment Period.............................................23
Section 4.2 Notice of Extension..............................................................23
Section 4.3 Limitation on Transactions.......................................................24
ARTICLE V PARTICULAR COVENANTS OF THE COMPANY.......................................................25
Section 5.1 Payment of Principal and Interest................................................25
Section 5.2 Maintenance of Agency............................................................25
Section 5.3 Paying Agents....................................................................25
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TABLE OF CONTENTS
(continued)
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Section 5.4 Appointment to Fill Vacancy in Office of Trustee.................................26
Section 5.5 Compliance with Consolidation Provisions.........................................26
Section 5.6 Limitation on Transactions.......................................................27
Section 5.7 Covenants as to the Trust........................................................27
Section 5.8 Covenants as to Purchases........................................................28
Section 5.9 Waiver of Usury, Stay or Extension Laws..........................................28
ARTICLE VI DEBENTUREHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE........................28
Section 6.1 Company to Furnish Trustee Names and Addresses of Debentureholders...............28
Section 6.2 Preservation of Information Communications with Debentureholders.................29
Section 6.3 Reports by the Company...........................................................29
Section 6.4 Reports by the Trustee...........................................................29
ARTICLE VII REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS ON EVENT OF DEFAULT..........................30
Section 7.1 Events of Default................................................................30
Section 7.2 Collection of Indebtedness and Suits for Enforcement by Trustee..................32
Section 7.3 Application of Money Collected...................................................33
Section 7.4 Limitation on Suits..............................................................34
Section 7.5 Rights and Remedies Cumulative; Delay or Omission not Waiver.....................34
Section 7.6 Control by Debentureholders......................................................35
Section 7.7 Undertaking to Pay Costs.........................................................35
Section 7.8 Direct Action; Right of Set-Off..................................................36
ARTICLE VIII FORM OF DEBENTURE AND ORIGINAL ISSUE......................................................36
Section 8.1 Form of Debenture................................................................36
Section 8.2 Original Issue of Debentures.....................................................36
ARTICLE IX CONCERNING THE TRUSTEE....................................................................36
Section 9.1 Certain Duties and Responsibilities of the Trustee...............................36
Section 9.2 Notice of Defaults...............................................................38
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TABLE OF CONTENTS
(continued)
PAGE
Section 9.3 Certain Rights of Trustee........................................................38
Section 9.4 Trustee Not Responsible for Recitals, etc........................................39
Section 9.5 May Hold Debentures..............................................................40
Section 9.6 Moneys Held in Trust.............................................................40
Section 9.7 Compensation and Reimbursement...................................................40
Section 9.8 Reliance on Officers' Certificate................................................41
Section 9.9 Disqualification; Conflicting Interests..........................................41
Section 9.10 Corporate Trustee Required; Eligibility..........................................41
Section 9.11 Resignation and Removal; Appointment of Successor................................41
Section 9.12 Acceptance of Appointment by Successor...........................................43
Section 9.13 Merger, Conversion, Consolidation or Succession to Business......................43
Section 9.14 Preferential Collection of Claims Against the Company............................44
ARTICLE X CONCERNING THE DEBENTUREHOLDERS...........................................................44
Section 10.1 Evidence of Action by Holders....................................................44
Section 10.2 Proof of Execution by Debentureholders...........................................44
Section 10.3 Who May be Deemed Owners.........................................................45
Section 10.4 Certain Debentures Owned by Company Disregarded..................................45
Section 10.5 Actions Binding on Future Debentureholders.......................................45
ARTICLE XI SUPPLEMENTAL INDENTURES...................................................................46
Section 11.1 Supplemental Indentures Without the Consent of Debentureholders..................46
Section 11.2 Supplemental Indentures with Consent of Debentureholders.........................47
Section 11.3 Effect of Supplemental Indentures................................................47
Section 11.4 Debentures Affected by Supplemental Indentures...................................47
Section 11.5 Execution of Supplemental Indentures.............................................48
ARTICLE XII SUCCESSOR CORPORATION.....................................................................48
Section 12.1 Company May Consolidate, etc.....................................................48
Section 12.2 Successor Person Substituted.....................................................49
Section 12.3 Evidence of Consolidation, etc. to Trustee.......................................49
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE XIII SATISFACTION AND DISCHARGE................................................................49
Section 13.1 Satisfaction and Discharge of Indenture..........................................49
Section 13.2 Discharge of Obligations.........................................................50
Section 13.3 Deposited Money to be Held in Trust..............................................50
Section 13.4 Payment of Money Held by Paying Agents...........................................50
Section 13.5 Repayment to Company.............................................................51
ARTICLE XIV IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS...........................51
Section 14.1 No Recourse......................................................................51
ARTICLE XV MISCELLANEOUS PROVISIONS..................................................................52
Section 15.1 Effect on Successors and Assigns.................................................52
Section 15.2 Actions by Successor.............................................................52
Section 15.3 Surrender of Company Powers......................................................52
Section 15.4 Notices..........................................................................52
Section 15.5 Governing Law....................................................................52
Section 15.6 Treatment of Debentures as Debt..................................................52
Section 15.7 Compliance Certificates and Opinions.............................................53
Section 15.8 Payments on Business Days........................................................53
Section 15.9 Application of Trust Indenture Act; Conflict.....................................53
Section 15.10 Counterparts.....................................................................54
Section 15.11 Severability.....................................................................54
Section 15.12 Assignment.......................................................................54
Section 15.13 Acknowledgment of Rights; Right of Set Off.......................................54
ARTICLE XVI SUBORDINATION OF DEBENTURES...............................................................55
Section 16.1 Agreement to Subordinate.........................................................55
Section 16.2 Default on Senior Debt, Subordinated Debt or Additional Senior Obligations.......55
Section 16.3 Liquidation; Dissolution; Bankruptcy.............................................55
Section 16.4 Subrogation......................................................................57
Section 16.5 Trustee to Effectuate Subordination..............................................58
Section 16.6 Notice by the Company............................................................58
Section 16.7 Rights of the Trustee; Holders of Senior Indebtedness............................59
Section 16.8 Subordination may not be Impaired................................................59
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INDENTURE
THIS INDENTURE, effective as of June 27, 2002, between United
Bancorporation of Alabama, Inc., a
Delaware corporation (the "Company") and
Xxxxx Fargo Bank, National Association, a national banking association with its
principal place of business in the State of
Delaware (the "Trustee");
RECITALS:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of securities to be known as Floating Rate Junior Subordinated
Deferrable Interest Debentures due June 30, 2032 (hereinafter referred to as the
"Debentures"), the form and substance of such Debentures and the terms,
provisions and conditions thereof to be set forth as provided in this Indenture;
WHEREAS, United Bancorp Capital Trust I, a
Delaware statutory business
trust (the "Trust"), has offered in a private placement up to Four Million
Dollars ($4,000,000) aggregate liquidation amount of its Trust Preferred
Securities (as defined herein) and proposes to invest the proceeds from such
offering, together with the proceeds of the issuance and sale by the Trust to
the Company of up to One Hundred Twenty-Five Thousand Dollars ($125,000)
aggregate liquidation amount of its Common Securities (as defined herein), in up
to Four Million One Hundred Twenty-Five Thousand Dollars ($4,125,000) aggregate
principal amount of the Debentures;
WHEREAS, the Company has requested that the Trustee execute and deliver
this Indenture;
WHEREAS, all requirements necessary to make this Indenture a valid
instrument in accordance with its terms, and to make the Debentures, when
executed by the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company, have been performed, and the execution and
delivery of this Indenture have been duly authorized in all respects;
WHEREAS, to provide the terms and conditions upon which the Debentures
are to be authenticated, issued and delivered, the Company has duly authorized
the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises set forth herein and
the purchase of the Debentures by the holders thereof, it is mutually covenanted
and agreed as follows for the equal and ratable benefit of the holders of the
Debentures as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS OF TERMS.
The terms defined in this Section 1.1 (except as otherwise expressly
provided in this Indenture or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section 1.1 and shall include the
plural as well as the singular. All other terms used in this Indenture that are
defined in the Trust Indenture Act, or that are by reference in the Trust
Indenture Act and defined in the Securities Act (except as herein otherwise
expressly provided or unless the context otherwise requires), shall have the
meanings assigned to such terms in the Trust Indenture Act and in the Securities
Act as in force at the date of the execution of this instrument and as may be
amended from time to time. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance with
Generally Accepted Accounting Principles.
"Accelerated Maturity Date" means if the Company elects to accelerate
the Maturity Date in accordance with Sections 2.2(b) and 2.2(c), the date
selected by the Company which is prior to the Scheduled Maturity Date, but is on
an Interest Payment Date after June 30, 2007.
"Additional Interest" means interest earned and to be paid on interest
that was not timely paid.
"Additional Senior Obligations" means all indebtedness of the Company
whether incurred on or prior to the date of this Indenture or thereafter
incurred, for claims in respect of derivative products such as interest and
foreign exchange rate contracts, commodity contracts and similar arrangements;
provided, however, that Additional Senior Obligations does not include claims in
respect of Senior Debt or Subordinated Debt or obligations which, by their
terms, are expressly stated to be not superior in right of payment to the
Debentures or to rank pari passu in right of payment with the Debentures. For
purposes of this definition, "claim" shall have the meaning assigned thereto in
Section 101(4) of the United States Bankruptcy Code of 1978, as amended.
"Additional Sums" shall have the meaning set forth in Section 2.5(g).
"Administrative Trustees" shall have the meaning set forth in the Trust
Agreement.
"Affiliate" means, with respect to a specified Person, (i) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person; (ii) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person; (iii) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person; (iv) a partnership in which the specified Person is a
general partner; (v) any officer or director of the specified Person; and (vi)
if the specified Person is an individual, any entity of which the specified
Person is an officer, director or general partner.
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"Authenticating Agent" means an authenticating agent with respect to
the Debentures appointed by the Trustee pursuant to Section 2.12.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee of such Board or any other duly designated officers of
the Company.
"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, with respect to the Debentures, any day other
than a Saturday or a Sunday or a day on which federal or state banking
institutions in
Delaware or Minnesota are authorized or required by law,
executive order or regulation to close, or a day on which the Corporate Trust
Office of the Trustee or the Property Trustee is closed for business.
"Calculation Agent" shall have the meaning set forth in Section
2.5(d)(i).
"Capital Treatment Event" means the receipt by the Company and the
Trust of an Opinion of Counsel, rendered by a law firm having a recognized
national bank regulatory practice, 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 thereof or therein, or (b) any official or administrative
pronouncement or action or judicial decision interpreting or applying such laws
or regulations, which amendment or change is effective or which pronouncement or
decision is announced on or after the date of issuance of the Trust Preferred
Securities under the Trust Agreement, there is more than an insubstantial risk
of impairment of the Company's ability to treat the Trust Preferred Securities
(or any substantial portion thereof) as Tier 1 capital (or the then equivalent
thereof), for purposes of the capital adequacy guidelines of the Federal Reserve
(or any successor thereto), as then in effect and applicable to the Company;
provided, however, that the Trust or the Company shall have requested and
received such an Opinion of Counsel with regard to such matters within a
reasonable period of time after the Trust or the Company shall have become aware
of the probable occurrence of any such event.
"Certificate" means a certificate signed by the principal executive
officer, the principal financial officer, the principal accounting officer, the
treasurer or any vice president of the Company. The Certificate need not comply
with the provisions of Section 15.7.
"Change in 1940 Act Law" shall have the meaning set forth in the
definition of "Investment Company Event."
"Commission" means the Securities and Exchange Commission.
"Common Securities" means undivided common beneficial interests in the
assets of the Trust that rank pari passu with the Trust Preferred Securities;
provided, however, that upon the occurrence of an Event of Default, the rights
of holders of Common Securities to payment in
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respect of distributions and payments upon liquidation, redemption and otherwise
are subordinated to the rights of holders of Trust Preferred Securities.
"Company" means United Bancorporation of Alabama, Inc., a corporation
duly organized and validly existing under the laws of the State of
Delaware,
and, subject to the provisions of Article XII, shall also include its successors
and assigns.
"Compounded Interest" shall have the meaning set forth in Section 4.1.
"Corporate Trust Office" means the office of the Trustee or the
Property Trustee at which, at any particular time, its corporate trust business
shall be principally administered, which office at the date hereof is located at
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000 , Attention: Corporate Trust Administration.
"Custodian" means any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Debentures" shall have the meaning set forth in the Recitals hereto.
"Debentureholder," "holder of Debentures," "registered holder," or
other similar term, means the Person or Persons in whose name or names a
particular Debenture shall be registered on the books of the Company or the
Trustee kept for that purpose in accordance with the terms of this Indenture.
"Debenture Register" shall have the meaning set forth in Section
2.7(b).
"Debt" means with respect to any Person, whether recourse is to all or
a portion of the assets of such Person and whether or not contingent, (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 accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; and (vi) every
obligation of the type referred to in clauses (i) through (v) 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, directly or indirectly, as
obligor or otherwise.
"Default" means any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Dissolution Event" means that as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance with
the Trust Agreement and the Debentures
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held by the Property Trustee are to be distributed to the holders of the Trust
Securities issued by the Trust pro rata in accordance with the Trust Agreement.
"Event of Default" means, with respect to the Debentures, any event
specified in Section 7.1, which has continued for the period of time, if any,
and after the giving of the notice, if any, therein designated.
"Exchange Act," means the Securities Exchange Act of 1934 or any
successor statute thereto, in each case as amended from time to time.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 4.1.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Floating Interest Rate" shall have the meaning set forth in Section
2.5(a).
"Generally Accepted Accounting Principles" means such accounting
principles as are generally accepted at the time of any computation required
hereunder.
"Governmental Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged; or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America that, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the holder of
such depository receipt; provided, however, that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"Herein," "hereof," and "hereunder," and other words of similar import,
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into in accordance with the terms hereof.
"Interest Payment Date," has the meaning specified in Section 2.5(a).
"Interest Reset Date" has the meaning specified in Section 2.5(d).
"Investment Company Act," means the Investment Company Act of 1940 or
any successor statute thereto, in each case as amended from time to time.
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"Investment Company Event" means the receipt by the Trust and the
Company of an Opinion of Counsel, rendered by a law firm having a recognized
national securities law practice, to the effect that, as a result of the
occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), the Trust is or
shall be considered an "investment company" that is required to be registered
under the Investment Company Act, which Change in 1940 Act Law becomes effective
on or after the date of original issuance of the Trust Preferred Securities
under the Trust Agreement; provided, however, that the Trust or the Company
shall have requested and received such an Opinion of Counsel with regard to such
matters within a reasonable period of time after the Trust or the Company shall
have become aware of a Change in 1940 Act Law.
"Maturity Date" means the date on which the Debentures mature and on
which the principal shall be due and payable together with all accrued and
unpaid interest thereon including Compounded Interest and Additional Interest,
if any.
"Ministerial Action" shall have the meaning set forth in Section 3.1.
"Officers' Certificate" means a certificate signed by the Chief
Executive Officer, President or a Vice President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary of the Company
that is delivered to the Trustee in accordance with the terms hereof. Each such
certificate shall include the statements provided for in Section 15.7, if and to
the extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of independent,
outside legal counsel for the Company that is delivered to the Trustee in
accordance with the terms hereof. Each such opinion shall include the statements
provided for in Section 15.7, if and to the extent required by the provisions
thereof.
"Outstanding," when used with reference to the Debentures, means,
subject to the provisions of Section 10.4, as of any particular time, all
Debentures theretofore authenticated and delivered by the Trustee under this
Indenture, except (i) Debentures theretofore canceled by the Trustee or any
Paying Agent, or delivered to the Trustee or any Paying Agent for cancellation
or that have previously been canceled; (ii) Debentures or portions thereof for
the payment or redemption of which money or Governmental Obligations in the
necessary amount shall have been deposited in trust with the Trustee or with any
Paying Agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own Paying
Agent); provided, however, that if such Debentures or portions of such
Debentures are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as provided in Article III or provision
satisfactory to the Trustee shall have been made for giving such notice; and
(iii) Debentures in lieu of or in substitution for which other Debentures shall
have been authenticated and delivered pursuant to the terms of Section 2.7;
provided, however, that in determining whether the holders of the requisite
percentage of Debentures have given any such request, notice, consent or waiver
hereunder, Debentures held by the Company or any Affiliate of the Company shall
not be included; provided, further, that the Trustee shall be protected in
acting or relying upon any request, notice, consent or waiver unless a
Responsible
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Officer of the Trustee shall have actual knowledge that the holder of any such
Debenture is the Company or an Affiliate thereof.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.3.
"Person" means any individual, corporation, partnership, trust, limited
liability company, joint venture, joint-stock company, unincorporated
organization or other entity or government or any agency or political
subdivision thereof.
"Predecessor Debenture" means every previous Debenture evidencing all
or a portion of the same debt as that evidenced by such particular Debenture;
and, for the purposes of this definition, any Debenture authenticated and
delivered under Section 2.9 in lieu of a lost, destroyed or stolen Debenture
shall be deemed to evidence the same debt as the lost, destroyed or stolen
Debenture.
"Property Trustee" has the meaning set forth in the Trust Agreement.
"Resale Restriction Termination Date" means, with respect to the offer,
sale or other transfer of a Debenture, (a) the date which is two years (or such
shorter period of time as permitted by Rule 144(k) under the Securities Act)
after the later of the original issue date of such Debenture and the last date
on which the Company or any Affiliate of the Company was the owner of such
Debenture (or any predecessor of the Debenture) and (b) such later date, if any,
as may be required by applicable laws.
"Redemption Date" shall have the meaning set forth in Section 3.2(a).
"Redemption Price" shall have the meaning set forth in Section 3.1.
"Responsible Officer" when used with respect to the Trustee means any
officer within the Corporate Trust Office of the Trustee with direct
responsibility for the administration of this Indenture, including any vice
president, any assistant vice president, any assistant secretary or any other
officer or assistant officer of the Trustee customarily performing functions
similar to those performed by the Persons who at the time shall be such officers
or to whom such corporate trust matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Scheduled Maturity Date" means June 30, 2032.
"Securities Act," means the Securities Act of 1933 or any successor
statute thereto, in each case as amended from time to time.
"Senior Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on all
Debt, whether incurred on or prior to the date of this Indenture or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the
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Debentures or to other Debt which is pari passu with, or subordinated to, the
Debentures; provided, however, that Senior Debt shall not be deemed to include
(i) any Debt of the Company owed which when incurred and without respect to any
election under Section 1111(b) of the United States Bankruptcy Code of 1978, as
amended, was without recourse to the Company; (ii) Debt which by its terms is
subordinated to trade accounts payable or accrued liabilities arising in the
ordinary course of business; and (iii) Debt which constitutes Subordinated Debt.
"Senior Indebtedness" shall have the meaning set forth in Section 16.1.
"Special Event" means a Tax Event, an Investment Company Event or a
Capital Treatment Event.
"Subordinated Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on
Debt, whether incurred on or prior to the date of this Indenture or thereafter
incurred, which is by its terms expressly provided to be junior and subordinate
to Senior Debt of the Company (other than the Debentures); provided, however,
that Subordinated Debt will not be deemed to include (i) any Debt of the Company
which when incurred and without respect to any election under Section 1111(b) of
the United States Bankruptcy Code of 1978, as amended, was without recourse to
the Company, (ii) any Debt which by its terms is subordinated to trade accounts
payable or accrued liabilities arising in the ordinary course of business; (iii)
Debt which constitutes Senior Debt and (iv) any Debt of the Company under debt
securities (and guarantees in respect of these debt securities) initially issued
to any trust, or a trustee of a trust, partnership or other entity affiliated
with the Company that is, directly or indirectly, a financing vehicle of the
Company in connection with the issuance by that entity of preferred securities
or other securities which are intended to qualify for Tier 1 capital treatment
for purposes of the capital adequacy guidelines of the Federal Reserve, as then
in effect.
"Subsidiary" means, with respect to any Person, (i) any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries or
by such Person and one or more of its Subsidiaries; (ii) any general
partnership, limited liability company, joint venture or similar entity, at
least a majority of whose outstanding partnership or similar interests shall at
the time be owned by such Person, or by one or more of its Subsidiaries, or by
such Person and one or more of its Subsidiaries; and (iii) any limited
partnership of which such Person or any of its Subsidiaries is a general
partner.
"Tax Event" means the receipt by the Company and the Trust of an
Opinion of Counsel, rendered by a law firm having a recognized federal tax law
practice, to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement or
decision is announced on or after the date of issuance of the Trust Preferred
Securities under the Trust Agreement, there is more than an insubstantial risk
that (i) the Trust is, or shall be within 90 days after the date of such Opinion
of Counsel, subject to
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United States federal income tax with respect to income received or accrued on
the Debentures; (ii) interest payable by the Company on the Debentures is not,
or within 90 days after the date of such Opinion of Counsel, shall not be,
deductible by the Company, in whole or in part, for United States federal income
tax purposes; or (iii) the Trust is, or shall be within 90 days after the date
of such Opinion of Counsel, subject to more than a de minimis amount of other
taxes, duties, assessments or other governmental charges; provided, however,
that the Trust or the Company shall have requested and received such an Opinion
of Counsel with regard to such matters within a reasonable period of time after
the Trust or the Company shall have become aware of the occurrence or the
possible occurrence of any of the events described in clauses (i) through (iii)
above.
"Three-Month LIBOR" shall have the meaning set forth in Section 2.5(d).
"Trust" means United Bancorp Capital Trust I, a
Delaware statutory
business trust.
"Trust Agreement" means the Amended and Restated Trust Agreement,
effective as of June 27, 2002, of the Trust, as amended from time to time.
"Trust Preferred Securities" means undivided preferred beneficial
interests in the assets of the Trust that rank pari passu with Common Securities
issued by the Trust; provided, however, that upon the occurrence of an Event of
Default, the rights of holders of Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Trust Preferred Securities.
"Trust Preferred Securities Guarantee" means any guarantee that the
Company may enter into with the Trustee or other Persons that operates directly
or indirectly for the benefit of holders of Trust Preferred Securities.
"Trustee" means Xxxxx Fargo Bank, National Association and, subject to
the provisions of Article IX, shall also include its successors and assigns in
each such Person's capacity as trustee hereunder, and, if at any time there is
more than one Person acting in such capacity hereunder, "Trustee" shall mean
each such Person.
"Trust Indenture Act," means the Trust Indenture Act of 1939 or any
successor statute thereto, in each case as amended from time to time.
"Trust Securities" means the Common Securities and Trust Preferred
Securities, collectively.
"Voting Stock," as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than shares,
interests, participations or other equivalents having such power only by reason
of the occurrence of a contingency.
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ARTICLE II
ISSUE, DESCRIPTION, TERMS, CONDITIONS,
REGISTRATION AND EXCHANGE OF THE DEBENTURES
SECTION 2.1 DESIGNATION AND PRINCIPAL AMOUNT.
There is hereby authorized Debentures designated the "Floating Rate
Junior Subordinated Deferrable Interest Debentures due June 30, 2032," limited
in aggregate principal amount to Four Million One Hundred Twenty-Five Thousand
Dollars ($4,125,000) which amount shall be as set forth in any written order of
the Company for the authentication and delivery of Debentures pursuant to
Section 2.6.
SECTION 2.2 MATURITY.
(a) The Maturity Date shall be either:
(i) the Scheduled Maturity Date; or
(ii) if the Company elects to accelerate the Maturity Date
to be a date prior to the Scheduled Maturity Date in
accordance with Sections 2.2(b) and 2.2(c), the
Accelerated Maturity Date.
(b) The Company may at any time before the day which is 90
days before the Scheduled Maturity Date and after June 30, 2007, elect
to shorten the Maturity Date only once to the Accelerated Maturity Date
provided that the Company has received the prior approval of the
Federal Reserve if then required under applicable capital guidelines,
policies or regulations of the Federal Reserve.
(c) If the Company elects to accelerate the Maturity Date in
accordance with Section 2.2(b), the Company shall give notice to the
Trustee and the Trust (unless the Property Trustee is not the holder of
the Debentures, in which case the Trustee will give notice to the
holders of the Debentures) of the acceleration of the Maturity Date and
the Accelerated Maturity Date at least 30 days and no more than 180
days before the Accelerated Maturity Date.
SECTION 2.3 FORM AND PAYMENT.
The Debentures shall be issued in certificated form, registered in the
name of the holder thereof, without interest coupons. The Debentures, including
the Certificate of Authentication, shall be substantially in the form of Exhibit
A hereto. Prior to the Resale Restriction Termination Date, the Debentures will
be issued and may only be transferred in a minimum aggregate principal amount of
$100,000. Subsequent to the Resale Restriction Termination Date, the Debentures
may only be transferred in a minimum aggregate principal amount of $100,000. Any
attempted transfer not in accordance with the preceding two sentences shall be
void and of no effect whatsoever.
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Principal and interest on the Debentures issued in certificated form
shall be payable, the transfer of such Debentures shall be registrable and such
Debentures shall be exchangeable for Debentures bearing identical terms and
provisions at or through the office or agency of the Trustee; provided, however,
that payment of interest may be made at the option of the Company by check
mailed to the holder at such address as shall appear in the Debenture Register
or by wire transfer to an account maintained by the holder as specified in the
Debenture Register, provided that the holder provides proper transfer
instructions by the regular record date. Notwithstanding the foregoing, so long
as the holder of any Debentures is the Property Trustee, the payment of
principal of and interest (including Compounded Interest and Additional
Interest, if any) on such Debentures held by the Property Trustee shall be made
at such place and to such account as may be designated by the Property Trustee.
SECTION 2.4 INTENTIONALLY LEFT BLANK.
SECTION 2.5 INTEREST.
(a) Each Debenture shall bear interest at the rate of 3.65%
per annum over the Three-Month LIBOR Rate, calculated on each Interest
Reset Date (the "Floating Interest Rate"), from the original date of
issuance until the principal thereof becomes due and payable, and on
any overdue principal and (to the extent that payment of such interest
is enforceable under applicable law) on any overdue installment of
interest at the Floating Interest Rate, compounded quarterly, payable
(subject to the provisions of Article IV) quarterly in arrears on March
30, June 30, September 30 and December 30 of each year (each such date,
an "Interest Payment Date," and each quarterly period, an "Interest
Payment Period"), commencing on September 30, 2002 to the Person in
whose name such Debenture or any Predecessor Debenture is registered,
at the close of business on the regular record date for such interest
installment, which shall be the 15th of the last month of each Interest
Payment Period.
(b) The Floating Interest Rate for each Interest Payment
Period will be set on the second London business day preceding each
Interest Payment Date; provided, that the initial Floating Interest
Rate will be set on June 30, 2002 and will not be reset until the next
Interest Reset Date, until the principal on the Debentures is paid or
made available for payment. If the Interest Reset Date is not a
Business Day, then such Interest Reset Date shall be the next
succeeding day which is a Business Day. In no event shall the Floating
Interest Rate exceed 12% prior to June 30, 2007.
(c) The amount payable for any Interest Payment Period shall
be computed on the basis of a 360-day year and the actual number of
days in such Distribution Period. In the event that any date on which
distribution is payable is not a Business Day, then payment shall be
made on the next succeeding day that is a Business Day except that, if
such Business Day is in the next succeeding calendar year, payment will
be made on the immediately preceding Business Day.
(d) The "Three-Month LIBOR Rate" shall mean the rate
determined in accordance with the following provisions:
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(i) On the second LIBOR Business Day (provided that on
such day commercial banks are open for business
(including dealings in foreign currency deposits) in
London (a "LIBOR Banking Day") preceding each January
15, April 15, July 15 and October 15 (except with
respect to the first interest payment period, on June
27, 2002 (each such date, a "Distribution Reset
Date"), Xxxxx Fargo Bank, National Association (the
"Calculation Agent"), will determine the Three-Month
LIBOR Rate which shall be the rate for deposits in
the London interbank market in U.S. dollars having a
three-month maturity which appears on the Telerate
Page 3750 as of 11:00 a.m., London time, on such
Distribution Reset Date. "Telerate Page 3750" means
the display on Page 3750 of the Bloomberg Financial
Markets Commodities News (or such other page as may
replace that page on that service for the purpose of
displaying London interbank offered rates of major
banks for U.S. dollar deposits). If the Three-Month
LIBOR Rate on such Distribution Reset Date does not
appear on the Telerate Page 3750, such Three-Month
LIBOR Rate will be determined as described in (ii)
below. "LIBOR Business Day" means any day that is not
a Saturday, Sunday or other day on which commercial
banking institutions in New York, New York or
Wilmington,
Delaware are authorized or obligated by
law or executive order to be closed. If such rate is
superseded on Telerate Page 3750 by a corrected rate
before 12:00 noon (London time) on the same
Distribution Reset Date, the corrected rate as so
substituted will be the applicable LIBOR for that
Distribution Reset Date.
(ii) If, on any Distribution Reset Date, such rate does
not appear on Telerate Page 3750 as reported by
Bloomberg Financial Markets Commodities News or such
other page as may replace such Telerate Page 3750,
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
Distribution Reset Date made by the Calculation Agent
to the Reference Banks. If, on any Distribution Reset
Date, at lease two of the Reference Banks provide
such quotations, LIBOR shall equal the arithmetic
mean of such quotations. If, on any Distribution
Reset Date, only one or none of the Reference Banks
provide such a quotation, LIBOR shall be deemed to be
the arithmetic mean of the offered quotations that at
least two leading banks in the City of New York (as
selected by the Calculation Agent) are quoting on the
relevant Distribution Reset Date for three-month U.S.
Dollar deposits in Europe at approximately 11:00 a.m.
(London time) (in an amount determined by the
Calculation Agent). As used herein, "Reference Banks"
means four major banks in the London interbank market
selected by the Calculation Agent.
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(iii) 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
in effect on the previous Distribution Reset Date
(whether or not LIBOR for such period was in fact
determined on such Distribution Reset Date).
(e) The Floating Interest Rate and amount of interest to be
paid on the Debentures for each Interest Payment Period will be
determined by the Calculation Agent. All calculations made by the
Calculation Agent shall, in the absence of manifest error, be
conclusive for all purposes and binding on the Company and Holders of
the Debentures. So long as the Three-Month LIBOR Rate is required to be
determined with respect to the Debentures, there will at all times be a
Calculation Agent. In the event that any then acting Calculation Agent
shall be unable or unwilling to act, or that such Calculation Agent
shall fail duly to establish the Three-Month LIBOR Rate for any
Interest Payment Period, or that the Company proposes to remove such
Calculation Agent, the Company shall appoint another Person which is a
bank, trust company, investment banking firm or other financial
institution to act as the Calculation Agent.
(f) The Trustee shall provide written notice of the Floating
Interest Rate as certified by the Calculation Agent to each holder of
Debentures as set forth in the Debenture Register no later than five
Business Days following each Interest Reset Date.
(g) If, at any time while the Trust or the Property Trustee is
the holder of any Debentures, the Trust or the Property Trustee is
subject to or is required to pay any taxes, duties, assessments or
governmental charges of whatever nature (including withholding taxes)
imposed by the United States, or any other taxing authority, then, in
any case, the Company shall pay as additional amounts ("Additional
Sums") on the Debentures held by the Trust or the Property Trustee,
such additional amounts as shall be required so that the net amounts
received and retained by the Trust and the Property Trustee after the
withholding or paying of such taxes, duties, assessments or other
governmental charges shall be equal to the amounts the Trust and the
Property Trustee would have received and retained had no such taxes,
duties, assessments or other government charges been imposed.
(h) The Floating Interest Rate will in no event be higher than
the maximum rate permitted by the law of the State of
Delaware, or, if
higher, the law of the United States of America.
SECTION 2.6 EXECUTION AND AUTHENTICATIONS.
(a) The Debentures shall be signed on behalf of the Company by
its Chief Executive Officer, President or one of its Vice Presidents,
under its corporate seal, if any, attested by its Secretary or one of
its Assistant Secretaries. Signatures may be in the form of a manual or
facsimile signature. The Company may use the facsimile signature of any
Person who shall have been a Chief Executive Officer, President or Vice
President thereof, or of any Person who shall have been a Secretary or
Assistant Secretary thereof, notwithstanding the fact that at the time
the Debentures shall be authenticated and
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delivered or disposed of such Person shall have ceased to be the Chief
Executive Officer, President or a Vice President, or the Secretary or
an Assistant Secretary, of the Company (and any such signature shall be
binding on the Company). The corporate seal of the Company, if any, may
be in the form of a facsimile of such seal and may be impressed,
affixed, imprinted or otherwise reproduced on the Debentures. The
Debentures may contain such notations, legends or endorsements required
by law, stock exchange rule or usage. Each Debenture shall be dated the
date of its authentication by the Trustee. A Debenture shall not be
valid until authenticated manually by an authorized signatory of the
Trustee, or by an Authenticating Agent. Such signature shall be
conclusive evidence that the Debenture so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled
to the benefits of this Indenture.
(b) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debentures executed
by the Company to the Trustee for authentication, together with a
written order of the Company for the authentication and delivery of
such Debentures signed by its Chief Executive Officer, President or any
Vice President and its Treasurer or any Assistant Treasurer, and the
Trustee in accordance with such written order shall authenticate and
deliver such Debentures.
(c) In authenticating such Debentures and accepting the
additional responsibilities under this Indenture in relation to such
Debentures, the Trustee shall be entitled to receive, and (subject to
Section 9.1(b)) shall be fully protected in relying upon, an Opinion of
Counsel stating that the form and terms thereof have been established
in conformity with the provisions of this Indenture.
(d) The Trustee shall not be required to authenticate such
Debentures if the issue of such Debentures pursuant to this Indenture
shall affect the Trustee's own rights, duties or immunities under the
Debentures and this Indenture or otherwise in a manner that is not
reasonably acceptable to the Trustee.
SECTION 2.7 REGISTRATION OF TRANSFER AND EXCHANGE.
(a) Subject to Section 2.3, Debentures may be exchanged upon
presentation thereof at the office or agency of the Company designated
for such purpose in Wilmington,
Delaware or at the office of the
Debenture Registrar, for other Debentures and for a like aggregate
principal amount in denominations of integral multiples of $1,000, upon
payment of a sum sufficient to cover any tax or other governmental
charge in relation thereto, all as provided in this Section 2.7. In
respect of any Debentures so surrendered for exchange, the Company
shall execute, the Trustee, upon written order of the Company, shall
authenticate and such office or agency shall deliver in exchange
therefore the Debenture or Debentures that the Debentureholder making
the exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office
or agency designated for such purpose in Wilmington,
Delaware or at the
office of the Debenture Registrar or such other location designated by
the Company a register or registers (herein referred to as the
"Debenture Register") in which, subject to such reasonable regulations
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as it may prescribe, the Company shall register the Debentures and the
transfers of Debentures as provided in this Article II and which at all
reasonable times shall be open for inspection by the Trustee. The
registrar for the purpose of registering Debentures and transfer of
Debentures as herein provided shall initially be the Trustee and
thereafter as may be appointed by the Company as authorized by Board
Resolution (the "Debenture Registrar"). Subject to Section 2.3, upon
surrender for transfer of any Debenture at the office or agency of the
Company designated for such purpose, the Company shall execute, the
Trustee, upon written order of the Company, shall authenticate and such
office or agency shall deliver in the name of the transferee or
transferees a new Debenture or Debentures for a like aggregate
principal amount. All Debentures presented or surrendered for exchange
or registration of transfer, as provided in this Section 2.7, shall be
accompanied (if so required by the Company or the Debenture Registrar)
by a written instrument or instruments of transfer, in form
satisfactory to the Company or the Debenture Registrar, duly executed
by the registered holder or by such holder's duly authorized attorney
in writing.
(c) Notwithstanding anything herein to the contrary,
Debentures may not be transferred except in compliance with the
restricted securities legends set forth below, unless otherwise
determined by the Company, upon the advice of legal counsel, in
accordance with applicable law:
THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR
ANY OTHER APPLICABLE SECURITIES LAWS. NEITHER THIS DEBENTURE NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM,
OR NOT SUBJECT TO, SUCH REGISTRATION. PRIOR TO (X) THE DATE WHICH IS
TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k)
UNDER THE SECURITIES ACT) AFTER THE LATER OF (i) THE ORIGINAL ISSUE
DATE HEREOF OR (ii) THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE
OF THE COMPANY WAS THE OWNER OF THIS DEBENTURE (OR ANY PREDECESSOR OF
THIS DEBENTURE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY
APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION DATE"), THE HOLDER
OF THIS DEBENTURE BY ITS ACCEPTANCE HEREOF AGREES FOR THE BENEFIT OF
THE COMPANY TO OFFER, SELL OR OTHERWISE TRANSFER THIS DEBENTURE ONLY
(A) TO THE COMPANY OR AN AFFILIATE OF THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THIS DEBENTURE IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A ("RULE 144A") PROMULGATED UNDER THE
SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR"
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WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS DEBENTURE FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED
INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER
OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE,
TRANSFER OR OTHER DISPOSITION (i) PURSUANT TO CLAUSES (D) OR (E) TO
REQUIRE THE DELIVERY BY THE HOLDER OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO THE COMPANY TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT
A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF
THIS DEBENTURE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE AND THE REGISTRAR IN CONNECTION WITH ANY TRANSFER OF THIS
DEBENTURE PRIOR TO THE RESALE RESTRICTION TERMINATION DATE. THE HOLDER
MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE CERTIFICATE OF TRANSFER
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THE CERTIFICATE OF
TRANSFER TO THE TRUSTEE AND THE REGISTRAR. THIS LEGEND WILL BE REMOVED
UPON REQUEST OF THE HOLDER AFTER THE EARLIER OF (i) THE TRANSFER OF THE
DEBENTURE EVIDENCED HEREBY PURSUANT TO CLAUSE (B) ABOVE OR (ii) THE
RESALE RESTRICTION TERMINATION DATE. THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
DEBENTURE OF THE RESALE RESTRICTIONS REFERRED TO HEREIN.
PRIOR TO THE RESALE RESTRICTION TERMINATION DATE, THIS DEBENTURE MAY BE
TRANSFERRED OR EXCHANGED ONLY IN A MINIMUM AGGREGATE PRINCIPAL AMOUNT
OF NOT LESS THAN $100,000. ANY ATTEMPTED TRANSFER OF THIS DEBENTURE IN
AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000 PRIOR TO THE RESALE
RESTRICTION TERMINATION DATE SHALL BE DEEMED TO BE VOID AND OF NO LEGAL
EFFECT WHATSOEVER. AFTER SUCH RESALE RESTRICTION TERMINATION DATE, ANY
ATTEMPTED TRANSFER OF THIS DEBENTURE IN AN AGGREGATE PRINCIPAL AMOUNT
OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE
HOLDER OF THIS DEBENTURE FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED
TO, THE RIGHT TO RECEIVE INTEREST PAYMENTS ON THIS DEBENTURE, AND SUCH
PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN
THIS DEBENTURE.
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IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY
THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
(d) No service charge shall be made for any exchange or
registration of transfer of Debentures, or issue of new Debentures in
case of partial redemption, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge in
relation thereto. Other than exchanges pursuant to Section 2.8, the
Company shall not be required (i) to issue, exchange or register the
transfer of any Debentures during a period beginning at the opening of
15 business days before the day of the mailing of a notice of
redemption of less than all the Outstanding Debentures and ending at
the close of business on the day of such mailing; nor (ii) to register
the transfer of or exchange any Debentures or portions thereof called
for redemption.
(e) Nothing herein withstanding, the Property Trustee shall
not be authorized, other than in the case of Default, to cause the
transfer of a Denture issued hereunder except (i) upon prior consent
and authorization by the Administrative Trustees or (ii) upon order of
a court of competent jurisdiction.
(f) Debentures may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this
Indenture. Any transfer or purported transfer of any Debenture not made
in accordance with this Indenture shall be null and void.
SECTION 2.8 TEMPORARY DEBENTURES.
Pending the preparation of definitive Debentures, the Company may
execute, and the Trustee shall authenticate and deliver, temporary Debentures
(printed, lithographed, or typewritten). Such temporary Debentures shall be
substantially in the form of the definitive Debentures in lieu of which they are
issued, but with such omissions, insertions and variations as may be appropriate
for temporary Debentures, all as may be determined by the Company. Every
temporary Debenture shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Debentures. Without unnecessary delay the Company
shall execute and shall furnish definitive Debentures and thereupon any or all
temporary Debentures may be surrendered in exchange therefor (without charge to
the holders), at the office or agency of the Company designated for that purpose
in Wilmington, Delaware or such other office or agency as the Company shall
designate for that purpose pursuant to Section 5.2 hereof, and the Trustee shall
authenticate, upon written order of the Company, and such office or agency shall
deliver in exchange for such temporary Debentures an equal aggregate principal
amount of definitive Debentures, unless the Company advises the Trustee to the
effect that definitive Debentures need not be authenticated and furnished until
further notice from the Company. Until so exchanged, the temporary Debentures
shall be entitled to the same benefits under this Indenture as definitive
Debentures authenticated and delivered hereunder.
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SECTION 2.9 MUTILATED, DESTROYED, LOST OR STOLEN DEBENTURES.
(a) In case any temporary or definitive Debenture shall become
mutilated or be destroyed, lost or stolen, the Company (subject to the
next succeeding sentence) shall execute, and upon the Company's written
order and request the Trustee (subject as aforesaid) shall authenticate
and deliver, a new Debenture bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Debenture,
or in lieu of and in substitution for the Debenture so destroyed, lost,
stolen or mutilated. In every case the applicant for a substituted
Debenture shall furnish to the Company and the Trustee such security or
indemnity as may be required by them to hold each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall
also furnish to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of the applicant's
Debenture and of the ownership thereof. The Trustee may authenticate
any such substituted Debenture and deliver the same upon the written
order and request or authorization of the Chief Executive Officer,
President or any Vice President and the Treasurer or any Assistant
Treasurer of the Company. Upon the issuance of any substituted
Debenture, 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. In case any Debenture
that has matured or is about to mature shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a
substitute Debenture, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Debenture) if the
applicant for such payment shall furnish to the Company and the Trustee
such security or indemnity as they may require to hold them harmless,
and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or
theft of such Debenture and of the ownership thereof.
(b) Every replacement Debenture issued pursuant to the
provisions of this Section 2.9 shall constitute an additional
contractual obligation of the Company whether or not the mutilated,
destroyed, lost or stolen Debenture shall be found at any time, or be
enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other
Debentures duly issued hereunder. All Debentures shall be held and
owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debentures, and shall preclude (to the extent
lawful) any and all other rights or remedies, notwithstanding any law
or statute existing or hereafter enacted to the contrary with respect
to the replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION 2.10 CANCELLATION.
All Debentures surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the Company or any
Paying Agent, be delivered to the Trustee for cancellation, or, if surrendered
to the Trustee, shall be canceled by it, and no Debentures shall be issued in
lieu thereof except as expressly required or permitted by any of the provisions
of this Indenture. On request of the Company at the time of such surrender, the
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Trustee shall deliver to the Company canceled Debentures held by the Trustee. In
the absence of such request the Trustee may dispose of canceled Debentures in
accordance with its standard procedures and deliver a certificate of disposition
to the Company. If the Company shall otherwise acquire any of the Debentures,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Debentures unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.11 BENEFIT OF INDENTURE.
Nothing in this Indenture or in the Debentures, express or implied,
shall give or be construed to give to any Person, other than the parties hereto
and the holders of the Debentures (and, with respect to the provisions of
Article XVI, the holders of the Senior Indebtedness) any legal or equitable
right, remedy or claim under or in respect of this Indenture, or under any
covenant, condition or provision herein contained; all such covenants,
conditions and provisions being for the sole benefit of the parties hereto and
of the holders of the Debentures (and, with respect to the provisions of Article
XVI, the holders of the Senior Indebtedness).
SECTION 2.12 AUTHENTICATION AGENT.
(a) So long as any of the Debentures remain Outstanding there
may be an Authenticating Agent for any or all such Debentures, and the
Trustee shall have the right to appoint such Authenticating Agent. Said
Authenticating Agent shall be authorized to act on behalf of the
Trustee to authenticate Debentures issued upon exchange, transfer or
partial redemption thereof, and Debentures so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee
hereunder. All references in this Indenture to the authentication of
Debentures by the Trustee shall be deemed to include authentication by
an Authenticating Agent. Each Authenticating Agent shall be acceptable
to the Company and shall be a corporation that has a combined capital
and surplus, as most recently reported or determined by it, sufficient
under the laws of any jurisdiction under which it is organized or in
which it is doing business to conduct a trust business, and that is
otherwise authorized under such laws to conduct such business and is
subject to supervision or examination by federal or state authorities.
If at any time any Authenticating Agent shall cease to be eligible in
accordance with these provisions, it shall resign immediately.
(b) Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company. The
Trustee may at any time (and upon request by the Company shall)
terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company.
Upon resignation, termination or cessation of eligibility of any
Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its
predecessor hereunder as if originally named as an Authenticating Agent
pursuant hereto.
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ARTICLE III
REDEMPTION OF DEBENTURES
SECTION 3.1 SPECIAL EVENT REDEMPTION.
If, prior to June 30, 2007, a Special Event has occurred and is
continuing, then, notwithstanding Section 3.2(a) but subject to Section 3.2(b),
the Company shall have the right upon not less than 30 days' nor more than 60
days' notice to the holders of the Debentures to redeem the Debentures, in whole
but not in part, for cash within 180 days following the occurrence of such
Special Event (the "180-Day Period") at a redemption price equal to One Hundred
Three Percent (103%) of the principal amount to be redeemed plus any accrued and
unpaid interest thereon to the date of such redemption (the "Redemption Price"),
provided that if at the time there is available to the Company the opportunity
to eliminate, within the 180-Day Period, a Tax Event by taking some ministerial
action (a "Ministerial Action"), such as filing a form or making an election, or
pursuing some other similar reasonable measure which has no adverse effect on
the Company, the Trustee, the Trust or the holders of the Trust Securities
issued by the Trust, the Company shall pursue such Ministerial Action in lieu of
redemption. The Redemption Price shall be paid prior to 12:00 noon, New York
time, on the date of such redemption or such earlier time as the Company
determines, provided that the Company shall deposit with the Trustee an amount
sufficient to pay the Redemption Price by 10:00 a.m., New York time, on the date
such Redemption Price is to be paid.
SECTION 3.2 OPTIONAL REDEMPTION BY COMPANY.
(a) Subject to the provisions of Section 3.2(b), except as
otherwise may be specified in this Indenture, the Company shall have
the right to redeem the Debentures, in whole or in part, from time to
time, on any Interest Payment Date after June 30, 2007 (each a
"Redemption Date"), at a Redemption Price equal to 100% of the
principal amount to be redeemed plus any accrued and unpaid interest
thereon to the Redemption Date. Any redemption pursuant to this Section
3.2(a) shall be made upon not less than 30 days' nor more than 60 days'
notice to the holder of the Debentures, at the Redemption Price. If the
Debentures are only partially redeemed pursuant to this Section 3.2,
the Debentures shall be redeemed pro rata or by lot or in such other
manner as the Trustee shall in good xxxxx xxxx appropriate and fair in
its sole discretion. The Redemption Price shall be paid prior to 12:00
noon, New York time, on the Redemption Date or at such earlier time as
the Company determines provided that the Company shall deposit with the
Trustee an amount sufficient to pay the Redemption Price by 10:00 a.m.,
New York time, on the Redemption Date.
(b) Any redemption of Debentures pursuant to Section 3.1 or
Section 3.2 shall be subject to the Company obtaining the prior
approval of the Federal Reserve, if such approval is then required
under the applicable capital guidelines, policies or regulations of the
Federal Reserve, and any other required regulatory approvals.
(c) If a partial redemption of the Debentures would result in
the delisting of the Trust Preferred Securities issued by the Trust
from any national securities exchange
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or other organization on which the Trust Preferred Securities are then
listed, if any, the Company shall not be permitted to effect such
partial redemption and may only redeem the Debentures in whole.
(d) Subject to the provisions of this Section 3.2, the Company
shall have the right to redeem Debentures in a principal amount equal
to the Liquidation Amount (as defined in the Trust Agreement) of any
Trust Preferred Securities purchased and beneficially owned by the
Company, plus an additional principal amount of Debentures equal to the
Liquidation Amount (as defined in the Trust Agreement) of that number
of Common Securities that bears the same proportion to the total number
of Common Securities then outstanding as the number of Trust Preferred
Securities to be redeemed bears to the total number of Trust Preferred
Securities then outstanding. Such Debentures shall be redeemed pursuant
to this Section 3.2(d) only in exchange for and upon surrender by the
Company to the Property Trustee of the Trust Preferred Securities and a
proportionate amount of Common Securities, whereupon the Property
Trustee shall cancel the Trust Preferred Securities and Common
Securities so surrendered and a Like Amount (as defined in the Trust
Agreement) of Debentures shall be extinguished by the Trustee and shall
no longer be deemed Outstanding.
SECTION 3.3 NOTICE OF REDEMPTION.
In case the Company shall desire to exercise such right to redeem all
or, as the case may be, a portion of the Debentures in accordance with
the right reserved so to do, the Company shall, or shall cause the
Trustee to upon receipt of at least 45 days' written notice from the
Company (which notice shall, in the event of a partial redemption,
include a representation to the effect that such partial redemption
will not result in the delisting of the Trust Preferred Securities as
described in Section 3.2(c) above), give notice of such redemption to
holders of the Debentures to be redeemed by mailing, first class
postage prepaid, a notice of such redemption not less than 30 days and
not more than 180 days before the date fixed for redemption to such
holders at their last addresses as they shall appear upon the Debenture
Register unless a shorter period is specified in the Debentures to be
redeemed. Any notice that is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the
registered holder receives the notice. In any case, failure duly to
give such notice to the holder of any Debenture designated for
redemption in whole or in part, or any defect in the notice, shall not
affect the validity of the proceedings for the redemption of any other
Debentures. In the case of any redemption of Debentures prior to the
expiration of any restriction on such redemption provided in the terms
of such Debentures or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing compliance
with any such restriction. Each such notice of redemption shall specify
the date fixed for redemption and the Redemption Price and shall state
that payment of the Redemption Price shall be made at the office or
agency of the Company or at the Corporate Trust Office of the Trustee,
upon presentation and surrender of such Debentures, that interest
accrued to the date fixed for redemption shall be paid as specified in
said notice and that from and after said date interest shall cease to
accrue. If less than all the Debentures are to be redeemed, the notice
to the holders of the Debentures shall specify the particular
Debentures to be redeemed. If the Debentures are
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to be redeemed in part only, the notice shall state the portion of the
principal amount thereof to be redeemed and shall state that on and
after the redemption date, upon surrender of such Debenture, a new
Debenture or Debentures in principal amount equal to the unredeemed
portion thereof will be issued to the holder. If less than all the
Debentures are to be redeemed, the Company shall give the Trustee at
least 45 days' notice in advance of the date fixed for redemption as to
the aggregate principal amount of Debentures to be redeemed, and
thereupon the Trustee shall select, pro rata or by lot or in such other
manner as it shall in good xxxxx xxxx appropriate and fair in its sole
discretion, the portion or portions (equal to $1,000 or any integral
multiple thereof) of the Debentures to be redeemed and shall thereafter
promptly notify the Company in writing of the numbers of the Debentures
to be redeemed, in whole or in part. The Company may, if and whenever
it shall so elect pursuant to the terms hereof, by delivery of
instructions signed on its behalf by its Chief Executive Officer, its
President or any Vice President, instruct the Trustee or any Paying
Agent to call all or any part of the Debentures for redemption and to
give notice of redemption in the manner set forth in this Section 3.3,
such notice to be in the name of the Company or its own name as the
Trustee or such Paying Agent may deem advisable. In any case in which
notice of redemption is to be given by the Trustee or any such Paying
Agent, the Company shall deliver or cause to be delivered to, or permit
to remain with, the Trustee or such Paying Agent, as the case may be,
such Debenture Register, transfer books or other records, or suitable
copies or extracts therefrom, sufficient to enable the Trustee or such
Paying Agent to give any notice by mail that may be required under the
provisions of this Section 3.3.
SECTION 3.4 PAYMENT UPON REDEMPTION.
(a) If the giving of notice of redemption shall have been
completed as above provided, the Debentures or portions of Debentures
to be redeemed specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable
Redemption Price, and interest on such Debentures or portions of
Debentures shall cease to accrue on and after the date fixed for
redemption, unless the Company shall default in the payment of such
Redemption Price with respect to any such Debenture or portion thereof.
On presentation and surrender of such Debentures on or after the date
fixed for redemption at the place of payment specified in the notice,
said Debentures shall be paid and redeemed at the Redemption Price (but
if the date fixed for redemption is an Interest Payment Date, the
interest installment payable on such date shall be payable to the
registered holder at the close of business on the applicable record
date).
(b) Upon presentation of any Debenture that is to be redeemed
in part only, the Company shall execute and the Trustee or the
Authenticating Agent, upon written order of the Company, shall
authenticate and the office or agency where the Debenture is presented
shall deliver to the holder thereof, at the expense of the Company, a
new Debenture of authorized denomination in principal amount equal to
the unredeemed portion of the Debenture so presented.
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SECTION 3.5 NO SINKING FUND.
The Debentures are not entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 EXTENSION OF INTEREST PAYMENT PERIOD.
The Company shall have the right, at any time and from time to time
during the term of the Debentures so long as no Event of Default has occurred
and is continuing, to defer payments of interest by extending the interest
payment period of such Debentures for a period not exceeding 20 consecutive
quarters (the "Extended Interest Payment Period"), during which Extended
Interest Payment Period no interest shall be due and payable; provided that no
Extended Interest Payment Period may extend beyond the Maturity Date or end on a
date other than an Interest Payment Date. To the extent permitted by applicable
law, interest, the payment of which has been deferred because of the extension
of the interest payment period pursuant to this Section 4.1, shall bear interest
thereon at the Floating Interest Rate in effect for each period compounded
quarterly for each quarter of the Extended Interest Payment Period ("Compounded
Interest"). At the end of the Extended Interest Payment Period, the Company
shall calculate (and deliver such calculation to the Trustee) and pay all
interest accrued and unpaid on the Debentures, including any Additional Interest
and Compounded Interest (together, "Deferred Interest") that shall be payable to
the holders of the Debentures in whose names the Debentures are registered in
the Debenture Register on the first record date after the end of the Extended
Interest Payment Period. Before the termination of any Extended Interest Payment
Period, the Company may further extend such period so long as no Event of
Default has occurred and is continuing, provided that such period together with
all such further extensions thereof shall not exceed 20 consecutive quarters, or
extend beyond the Maturity Date of the Debentures or end on a date other than an
Interest Payment Date. Upon the termination of any Extended Interest Payment
Period and upon the payment of all Deferred Interest then due, the Company may
commence a new Extended Interest Payment Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extended Interest
Payment Period, except at the end thereof, but the Company may prepay at any
time all or any portion of the interest accrued during an Extended Interest
Payment Period.
SECTION 4.2 NOTICE OF EXTENSION.
(a) If the Property Trustee is the only registered holder of
the Debentures at the time the Company selects an Extended Interest
Payment Period, the Company shall give written notice to the
Administrative Trustees, the Property Trustee and the Trustee of its
selection of such Extended Interest Payment Period two Business Days
before the earlier of (i) the next succeeding date on which
Distributions on the Trust Securities issued by the Trust are payable;
or (ii) the date the Trust is required to give notice of the record
date, or the date such Distributions are payable, to any applicable
self-regulatory organization or to holders of the Trust Preferred
Securities issued by the Trust.
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(b) If the Property Trustee is not the only holder of the
Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give the holders of the Debentures and the
Trustee written notice of its selection of such Extended Interest
Payment Period at least two Business Days before the earlier of (i) the
next succeeding Interest Payment Date; or (ii) the date the Company is
required to give notice of the record or payment date of such interest
payment to any applicable self-regulatory organization, if any, or to
holders of the Debentures.
(c) The quarter in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as one of
the 20 quarters permitted in the maximum Extended Interest Payment
Period permitted under Section 4.1.
SECTION 4.3 LIMITATION ON TRANSACTIONS.
If (i) the Company shall exercise its right to defer payment of
interest as provided in Section 4.1; or (ii) there shall have occurred and be
continuing any Event of Default, then
(a) the Company shall not, and will not permit any Subsidiary
to, declare or pay any dividends on, make any distributions with
respect to, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of its capital stock (other than (1) dividends or
distributions in shares of, or options, warrants or rights to subscribe
for or purchase shares of, common stock of the Company or such
Subsidiary, (2) any declaration of a dividend in connection with the
implementation of a shareholder's rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of
any such rights pursuant thereto, (3) purchases of common stock of the
Company related to the issuance of such common stock under any of the
Company's employee benefit plans for its directors, officers or
employees, (4) as a result of a reclassification of any class or series
of the Company's capital stock solely into another class or series of
the Company's capital stock, or (5) declarations or payments of
dividends or distributions payable by a Subsidiary of the Company to
the Company or to any of the Company's Subsidiaries);
(b) the Company shall not, and will not permit any Subsidiary
to, make any payment of interest, principal or premium, if any, or
repay, repurchase or redeem any debt securities issued by the Company
which rank pari passu with or junior to the Debentures;
(c) the Company shall not make any guarantee payments with
respect to any guarantee by the Company of the debt securities of any
Subsidiary of the Company if such guarantee ranks pari passu with or
junior to the Debentures; provided, however, that notwithstanding the
foregoing the Company may make payments pursuant to its obligations
under the Trust Preferred Securities Guarantee; and
(d) the Company shall not redeem, purchase or acquire less
than all of the Outstanding Debentures or any of the Trust Preferred
Securities.
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ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.1 PAYMENT OF PRINCIPAL AND INTEREST.
The Company shall duly and punctually pay or cause to be paid the
principal of and interest on the Debentures at the time and place and in the
manner provided herein.
SECTION 5.2 MAINTENANCE OF AGENCY.
So long as any of the Debentures remain Outstanding, the Company shall
maintain, or shall cause to be maintained, an office or agency in Wilmington,
Delaware, and at such other location or locations as may be designated as
provided in this Section 5.2, where (i) Debentures may be presented for payment;
(ii) Debentures may be presented as hereinabove authorized for registration of
transfer and exchange; and (iii) notices and demands to or upon the Company in
respect of the Debentures and this Indenture may be given or served, such
designation to continue with respect to such office or agency until the Company
shall, by written notice signed by its Chief Executive Officer, President or an
Executive Vice President and delivered to the Trustee, designate some other
office or agency for such purposes or any of them. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, notices and demands. In addition to any such office or agency,
the Company may from time to time designate one or more offices or agencies
outside of Wilmington, Delaware where the Debentures may be presented for
registration or transfer and for exchange in the manner provided herein, and the
Company may from time to time rescind such designation as the Company may deem
desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
any such office or agency in Wilmington, Delaware for the purposes above
mentioned. The Company shall give the Trustee prompt written notice of any such
designation or rescission thereof.
SECTION 5.3 PAYING AGENTS.
(a) The Trustee shall be the initial Paying Agent. If the
Company shall appoint one or more Paying Agents for the Debentures,
other than the Trustee, the Company shall cause each such Paying Agent
to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section
5.3:
(i) that it shall hold all sums held by it as such agent
for the payment of the principal of or interest on
the Debentures (whether such sums have been paid to
it by the Company or by any other obligor of such
Debentures) in trust for the benefit of the Persons
entitled thereto;
(ii) that it shall give the Trustee notice of any failure
by the Company (or by any other obligor of such
Debentures) to make any payment of the
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principal of or interest on the Debentures when the
same shall be due and payable;
(iii) that it shall, at any time during the continuance of
any failure referred to in the preceding paragraph
(a)(ii) above, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
(iv) that it shall perform all other duties of Paying
Agent as set forth in this Indenture.
(b) If the Company shall act as its own Paying Agent with
respect to the Debentures, it shall on or before each due date of the
principal of or interest on such Debentures, set aside, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay such principal or interest so becoming due on
Debentures until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and shall promptly notify the Trustee of
such action, or any failure (by it or any other obligor on such
Debentures) to take such action. Whenever the Company shall have one or
more Paying Agents for the Debentures, it shall, prior to each due date
of the principal of or interest on any Debentures, deposit with the
Paying Agent a sum sufficient to pay the principal or interest so
becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal or interest, and (unless such Paying
Agent is the Trustee) the Company shall promptly notify the Trustee of
this action or failure so to act.
(c) Notwithstanding anything in this Section 5.3 to the
contrary, (i) the agreement to hold sums in trust as provided in this
Section 5.3 is subject to the provisions of Section 13.3 and 13.4; and
(ii) the Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same terms and conditions as those upon which such
sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
SECTION 5.4 APPOINTMENT TO FILL VACANCY IN OFFICE OF TRUSTEE.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, shall appoint, in the manner provided in Section 9.11, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 5.5 COMPLIANCE WITH CONSOLIDATION PROVISIONS.
The Company shall not, while any of the Debentures remain Outstanding,
consolidate with, or merge into, or sell or convey all or substantially all of
its property to any other company unless the provisions of Article XII hereof
are complied with.
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SECTION 5.6 LIMITATION ON TRANSACTIONS.
If Debentures are issued to the Trust or a trustee of the Trust in
connection with the issuance of Trust Securities by the Trust and (i) there
shall have occurred any event that would constitute an Event of Default; (ii)
the Company shall be in default with respect to any of its obligations under the
Trust Preferred Securities Guarantee relating to the Trust; or (iii) the Company
shall have given notice of its election to defer payments of interest on such
Debentures by extending the interest payment period as provided in this
Indenture and such period, or any extension thereof, shall be continuing, then
(a) the Company shall not, and will not permit any Subsidiary
to, declare or pay any dividends on, make any distributions with
respect to, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of its capital stock (other than (1) dividends or
distributions in shares of, or options, warrants or rights to subscribe
for or purchase shares of, common stock of the Company or such
Subsidiary, (2) any declaration of a dividend in connection with the
implementation of a shareholder's rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of
any such rights pursuant thereto, (3) purchases of common stock of the
Company related to the issuance of such common stock under any of the
Company's employee benefit plans for its directors, officers or
employees, (4) as a result of a reclassification of any class or series
of the Company's capital stock solely into another class or series of
the Company's capital stock, or (5) declarations or payments of
dividends or distributions payable by a Subsidiary of the Company to
the Company or to any of the Company's Subsidiaries);
(b) the Company shall not, and will not permit any Subsidiary
to, make any payment of interest, principal or premium, if any, or
repay, repurchase or redeem any debt securities issued by the Company
which rank pari passu with or junior to the Debentures;
(c) the Company shall not make any guarantee payments with
respect to any guarantee by the Company of the debt securities of any
Subsidiary of the Company if such guarantee ranks pari passu with or
junior in interest to the Debentures; provided, however, that the
Company may make payments pursuant to its obligations under the Trust
Preferred Securities Guarantee; and
(d) the Company shall not redeem, purchase or acquire less
than all of the Outstanding Debentures or any of the Trust Preferred
Securities.
SECTION 5.7 COVENANTS AS TO THE TRUST.
For so long as the Trust Securities of the Trust remain outstanding,
the Company shall (i) maintain 100% direct or indirect ownership of the Common
Securities of the Trust; provided, however, that any permitted successor of the
Company under this Indenture may succeed to the Company's ownership of the
Common Securities; (ii) not voluntarily terminate, wind up or liquidate the
Trust, except upon prior approval of the Federal Reserve if then so required
under applicable capital guidelines, policies or regulations of the Federal
Reserve; (iii) use its reasonable efforts to cause the Trust (a) to remain a
business trust (and to avoid involuntary dissolution, termination, winding up or
liquidation), except in connection with a distribution of
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Debentures, the redemption of all of the Trust Securities of the Trust or
certain mergers, consolidations or amalgamations, each as permitted by the Trust
Agreement and (b) to otherwise continue not to be treated as an association
taxable as a corporation or partnership for United States federal income tax
purposes; and (iv) use its reasonable efforts to cause each holder of Trust
Securities to be treated as owning an individual beneficial interest in the
Debentures. In connection with the distribution of the Debentures to the holders
of the Trust Preferred Securities issued by the Trust upon a Dissolution Event,
the Company shall use its reasonable efforts to list such Debentures on any
applicable stock exchange or self-regulatory organization as the Trust Preferred
Securities are then listed, if any.
SECTION 5.8 COVENANTS AS TO PURCHASES.
Except upon the exercise by the Company of its right to redeem the
Debentures pursuant to Section 3.1 upon the occurrence and continuation of a
Special Event, the Company shall not purchase any Debentures, in whole or in
part, held by the Property Trustee on behalf of the Trust prior to June 30,
2007.
SECTION 5.9 WAIVER OF USURY, STAY OR EXTENSION LAWS.
The Company shall 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 performances 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
DEBENTUREHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 6.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
DEBENTUREHOLDERS.
The Company shall furnish or cause to be furnished to the Trustee (a)
on a quarterly basis on each regular record date (as described in Section 2.5) a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the holders of the Debentures as of such regular record date,
provided that the Company shall not be obligated to furnish or cause to furnish
such list at any time that the list shall not differ in any respect from the
most recent list furnished to the Trustee by the Company (in the event the
Company fails to provide such list on a quarterly basis, the Trustee shall be
entitled to rely on the most recent list provided by the Company); and (b) at
such other times as the Trustee may request in writing within 30 days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that, in either case, no such list need be furnished if the
Trustee shall be the Debenture Registrar.
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SECTION 6.2 PRESERVATION OF INFORMATION; COMMUNICATIONS WITH
DEBENTUREHOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses
of the holders of Debentures contained in the most recent list
furnished to it as provided in Section 6.1 and as to the names and
addresses of holders of Debentures received by the Trustee in its
capacity as Debenture Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as
provided in Section 6.1 upon receipt of a new list so furnished.
(c) Debentureholders may communicate with other
Debentureholders with respect to their rights under this Indenture or
under the Debentures, subject to Section 312(b) of the Trust Indenture
Act if applicable.
SECTION 6.3 REPORTS BY THE COMPANY.
(a) The Company covenants and agrees to transmit to the
Trustee such additional information, documents and reports with respect
to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such
rules and regulations, including Section 314(a)(4) of the Trust
Indenture Act, if applicable.
(b) The Company covenants and agrees to transmit to the
Trustee in the same form as filed with the Federal Reserve (i) its
annual audited consolidated financial statements within 90 days
following the end of its fiscal year, (ii) its quarterly consolidated
financial statements within 45 days after the end of the first three
fiscal quarters of each fiscal year (each a "Quarter"), and (iii) the
following financial data for each Quarter, within 45 days after the end
of each Quarter, and for each fiscal year, within 90 days after the end
of each fiscal year:
Capital: RATIO OF "TIER 1 CAPITAL" TO RISK WEIGHTED
ASSETS;
Asset Quality: RATIO OF NONPERFORMING ASSETS TO LOANS
AND OTHER REAL ESTATE OWNED, RATIO OF RESERVES TO
NONPERFORMING LOANS, AND RATIO OF NET CHARGE-OFFS TO LOANS;
Earnings: RETURN ON ASSETS, NET INTEREST MARGIN, AND
EFFICIENCY RATIO; AND
Liquidity: RATIO OF LOANS TO ASSETS, RATIO OF LOANS
TO DEPOSITS, TOTAL ASSETS, AND NET INCOME.
SECTION 6.4 REPORTS BY THE TRUSTEE.
(a) On or before July 15 in each year in which any of the
Debentures are Outstanding, the Trustee shall transmit by mail, first
class postage prepaid, to the
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Debentureholders, as their names and addresses appear upon the
Debenture Register, a brief report dated as of the preceding May 15, if
and to the extent required under Section 313(a) of the Trust Indenture
Act, if applicable (it being understood that no such report shall be
required if none of the events set forth in Section 313(a) of the Trust
Indenture Act has occurred during the period to which such report would
relate).
(b) The Trustee shall comply with Sections 313(b) and 313(c)
of the Trust Indenture Act, if applicable.
(c) A copy of each such report shall, at the time of such
transmission to Debentureholders, be filed by the Trustee with the
Company, with each stock exchange or applicable self-regulatory
organization upon which any Debentures are listed (if so listed) and
also with the Commission. The Company agrees to notify the Trustee when
any Debentures become listed on any stock exchange or other applicable
self-regulatory organization.
(d) If at any time following the date hereof the Property
Trustee no longer holds the Debentures, the Trustee covenants and
agrees to transmit by mail, first class postage prepaid, to the
Debentureholders, as their names and addresses appear upon the
Debenture Register, any information, documents and reports required to
be transmitted to the Trustee pursuant to Section 6.3 as soon as
practicable after the receipt of such information from the Company.
ARTICLE VII
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT
SECTION 7.1 EVENTS OF DEFAULT.
(a) Whenever used herein with respect to the Debentures,
"Event of Default" means any one or more of the following events that
has occurred and is continuing:
(i) the Company defaults in the payment of any
installment of interest upon any of the Debentures,
as and when the same shall become due and payable,
and continuance of such default for a period of 30
days; provided, however, that a valid extension of an
interest payment period by the Company in accordance
with the terms of this Indenture shall not constitute
a default in the payment of interest for this
purpose;
(ii) the Company defaults in the payment of the principal
on the Debentures as and when the same shall become
due and payable whether at maturity, upon redemption,
by declaration or otherwise;
(iii) the Company fails to observe or perform any other of
its covenants or agreements with respect to the
Debentures for a period of 90 days after the date on
which written notice of such failure, requiring the
same to be remedied and stating that such notice is a
"Notice of Default" hereunder,
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shall have been given to the Company by the Trustee,
by registered or certified mail, or to the Company
and the Trustee by the holders of at least 25% in
principal amount of the Debentures at the time
Outstanding;
(iv) the Company pursuant to or within the meaning of any
Bankruptcy Law (1) commences a voluntary case; (2)
consents to the entry of an order for relief against
it in an involuntary case; (3) consents to the
appointment of a Custodian of it or for all or
substantially all of its property; or (4) makes a
general assignment for the benefit of its creditors;
(v) a court of competent jurisdiction enters an order
under any Bankruptcy Law that (1) is for relief
against the Company in an involuntary case; (2)
appoints a Custodian of the Company for all or
substantially all of its property; or (3) orders the
liquidation of the Company, and the order or decree
remains unstayed and in effect for 90 days; or
(vi) the Trust shall have voluntarily or involuntarily
dissolved, wound-up its business or otherwise
terminated its existence except in connection with
(1) the distribution of Debentures to holders of
Trust Securities in liquidation of their interests in
the Trust; (2) the redemption of all of the
outstanding Trust Securities of the Trust; or (3)
certain mergers, consolidations or amalgamations,
each as permitted by the Trust Agreement.
(b) In each and every such case referred to in items (i)
through (vi) of Section 7.1(a), unless the principal of all the
Debentures shall have already become due and payable, either the
Trustee or the holders of not less than 25% in aggregate principal
amount of the Debentures then Outstanding hereunder, by notice in
writing to the Company (and to the Trustee if given by such
Debentureholders) may declare the principal of all the Debentures to be
due and payable immediately, and upon any such declaration the same
shall become and shall be immediately due and payable, notwithstanding
anything contained in this Indenture or in the Debentures.
(c) At any time after the principal of the Debentures shall
have been so declared due and payable, and before any judgment or
decree for the payment of the money due shall have been obtained or
entered as hereinafter provided, the holders of a majority in aggregate
principal amount of the Debentures then Outstanding hereunder, by
written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if: (i) the Company has paid or
deposited with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Debentures and the principal of
any and all Debentures that shall have become due otherwise than by
acceleration (with interest upon such principal, and, to the extent
that such payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the
Debentures to the date of such payment or deposit) and the amount
payable to the Trustee under Section 9.7; and (ii) any and all Events
of Default under this Indenture, other than the nonpayment of principal
on Debentures that shall not have become due by their terms, shall have
been remedied or waived as provided in
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Section 7.6. No such rescission and annulment shall extend to or shall
affect any subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any
right with respect to Debentures under this Indenture and such
proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the
Company and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of
the Company and the Trustee shall continue as though no such
proceedings had been taken.
SECTION 7.2 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
(a) The Company covenants that (i) in case it shall default in
the payment of any installment of interest on any of the Debentures,
and such default shall have continued for a period of 90 Business Days;
or (ii) in case it shall default in the payment of the principal of any
of the Debentures when the same shall have become due and payable,
whether upon maturity of the Debentures or upon redemption or upon
declaration or otherwise, then, upon demand of the Trustee, the Company
shall pay to the Trustee, for the benefit of the holders of the
Debentures, the whole amount that then shall have become due and
payable on all such Debentures for principal or interest, or both, as
the case may be, with interest upon the overdue principal and (to the
extent that payment of such interest is enforceable under applicable
law; and, if the Debentures are held by the Trust or a trustee of the
Trust, without duplication of any other amounts paid by the Trust or
trustee in respect thereof) upon overdue installments of interest at
the rate per annum expressed in the Debentures; and, in addition
thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, and the amount payable to the Trustee under
Section 9.7.
(b) If the Company shall fail to pay such amounts set forth in
section 7.2(a) forthwith upon such demand, the Trustee, in its own name
and as trustee of an express trust, shall be entitled and empowered to
institute any action or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any such
action or proceeding to judgment or final decree, and may enforce any
such judgment or final decree against the Company or other obligor upon
the Debentures and collect any money adjudged or decreed to be payable
in the manner provided by law out of the property of the Company or
other obligor upon the Debentures, wherever situated.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition or
judicial proceedings affecting the Company or the creditors or property
of either, the Trustee shall have power to intervene in such
proceedings and take any action therein that may be permitted by the
court and shall (except as may be otherwise provided by law) be
entitled to file such proofs of claim and other papers and documents as
may be necessary or advisable in order to have the claims of the
Trustee and of the holders of the Debentures allowed for the entire
amount due and payable by the Company under this Indenture at the date
of institution of such proceedings and for any additional amount that
may become due and
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payable by the Company after such date, and to collect and receive any
money or other property payable or deliverable on any such claim, and
to distribute the same after the deduction of the amount payable to the
Trustee under Section 9.7; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the
holders of the Debentures to make such payments to the Trustee, and, in
the event that the Trustee shall consent to the making of such payments
directly to such Debentureholders, to pay to the Trustee any amount due
it under Section 9.7.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to the
Debentures, may be enforced by the Trustee without the possession of
any of such Debentures, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted
by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for
payment to the Trustee of any amounts due under Section 9.7, be for the
ratable benefit of the holders of the Debentures. If an Event of
Default hereunder occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by
this Indenture by such appropriate judicial proceedings as the Trustee
shall in good xxxxx xxxx most effectual to protect and enforce any of
such rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law. Nothing
contained herein shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Debentureholder any
plan of reorganization, arrangement, adjustment or composition
affecting the Debentures or the rights of any holder thereof or to
authorize the Trustee to vote in respect of the claim of any
Debentureholder in any such proceeding.
SECTION 7.3 APPLICATION OF MONEY COLLECTED.
Any money or other assets collected by the Trustee pursuant to this
Article VII with respect to the Debentures shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money or other assets on account of principal or interest,
upon presentation of the Debentures, and notation thereon the payment, if only
partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of reasonable costs and expenses of collection
and of all amounts payable to the Trustee under Section 9.7;
SECOND: To the payment of all Senior Indebtedness of the Company if and
to the extent required by Article XVI; and
THIRD: To the payment of the amounts then due and unpaid upon the
Debentures for principal and interest, in respect of which or for the benefit of
which such money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Debentures for
principal and interest, respectively.
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SECTION 7.4 LIMITATION ON SUITS.
(a) Except as set forth in this Indenture, no holder of any
Debenture shall have any right by virtue or by availing of any
provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture or
for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless (i) such holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance
thereof with respect to the Debentures specifying such Event of
Default, as hereinbefore provided; (ii) the holders of not less than
25% in aggregate principal amount of the Debentures then Outstanding
shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as trustee hereunder; (iii)
such holder or holders shall have offered to the Trustee such
reasonable security or indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby; and (iv)
the Trustee for 60 days after its receipt of such notice, request and
offer of security or indemnity, shall have failed to institute any such
action, suit or proceeding, and during such 60 day period, the holders
of a majority in principal amount of the Debentures do not give the
Trustee a direction inconsistent with the request.
(b) Notwithstanding anything contained herein to the contrary
or any other provisions of this Indenture, the right of any holder of
the Debentures to receive payment of the principal of and interest on
the Debentures, as therein provided, on or after the respective due
dates expressed in such Debenture (or in the case of redemption, on the
redemption date), or to institute suit for the enforcement of any such
payment on or after such respective dates or redemption date, shall not
be impaired or affected without the consent of such holder and by
accepting a Debenture hereunder it is expressly understood, intended
and covenanted by the taker and holder of every Debenture with every
other such taker and holder and the Trustee, that no one or more
holders of the Debentures shall have any right in any manner whatsoever
by virtue or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of the holders of any other of such
Debentures, or to obtain or seek to obtain priority over or preference
to any other such holder, or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Debentures. For the protection and
enforcement of the provisions of this Section 7.4, each and every
Debentureholder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.
SECTION 7.5 RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER.
(a) Except as otherwise expressly provided herein, all powers
and remedies given by this Article VII to the Trustee or to the
Debentureholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies available
to the Trustee or the holders of the Debentures, by judicial
proceedings or otherwise, to enforce the performance or observance of
the covenants and agreements contained in this Indenture or otherwise
established with respect to such Debentures.
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(b) No delay or omission of the Trustee or of any holder of
any of the Debentures to exercise any right or power accruing upon any
Event of Default occurring and continuing as aforesaid shall impair any
such right or power, or shall be construed to be a waiver of any such
default or an acquiescence therein; and, subject to the provisions of
Section 7.4, every power and remedy given by this Article VII or by law
to the Trustee or the Debentureholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by
the Debentureholders.
SECTION 7.6 CONTROL BY DEBENTUREHOLDERS.
The holders of a majority in aggregate principal amount of the
Debentures at the time Outstanding, determined in accordance with Article X,
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee; provided, however, that such direction shall not
be in conflict with any rule of law or with this Indenture. Subject to the
provisions of Section 9.1(b), the Trustee shall have the right to decline to
follow any such direction if the Trustee in good faith shall, by a Responsible
Officer or Officers of the Trustee, determine that the proceeding so directed
would involve the Trustee in personal liability. The holders of a majority in
aggregate principal amount of the Debentures at the time Outstanding affected
thereby, determined in accordance with Article X, may on behalf of the holders
of all of the Debentures waive any past default in the performance of any of the
covenants contained herein and its consequences, except (i) a default in the
payment of the principal of or interest on, any of the Debentures as and when
the same shall become due by the terms of such Debentures otherwise than by
acceleration (unless such default has been cured and a sum sufficient to pay all
matured installments of interest and principal has been deposited with the
Trustee (in accordance with Section 7.1(c)); (ii) a default in the covenants
contained in Section 5.7; or (iii) in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the holder of each
Outstanding Debenture affected; provided, however, that if the Debentures are
held by the Trust or a trustee of the Trust, such waiver or modification to such
waiver shall not be effective until the holders of a majority in liquidation
preference of Trust Securities shall have consented to such waiver or
modification to such waiver; provided further, that if the consent of the holder
of each Outstanding Debenture is required, such waiver shall not be effective
until each holder of the Trust Securities of the Trust shall have consented to
such waiver. Upon any such waiver, the default covered thereby shall be deemed
to be cured for all purposes of this Indenture and the Company, the Trustee and
the holders of the Debentures shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 7.7 UNDERTAKING TO PAY COSTS.
All parties to this Indenture agree, and each holder of any Debentures
by such holder's acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party
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litigant; but the provisions of this Section 7.7 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Debentureholder, or
group of Debentureholders holding more than 10% in aggregate principal amount of
the Outstanding Debentures, to any suit instituted by any Debentureholder for
the enforcement of the payment of the principal of or interest on the
Debentures, on or after the respective due dates expressed in such Debenture or
established pursuant to this Indenture or to any suit instituted against the
Trustee unless it shall have been finally adjudicated in such suit that the
Trustee was negligent, committed an act of willful misconduct, or acted in bad
faith.
SECTION 7.8 DIRECT ACTION; RIGHT OF SET-OFF.
In the event that an Event of Default has occurred and is continuing
and such event is attributable to the failure of the Company to pay interest on
or principal of the Debentures on an Interest Payment Date or Maturity Date, as
applicable, then a holder of Trust Preferred Securities may institute a legal
proceeding directly against the Company for enforcement of payment to such
holder of the principal of or interest on such Debentures having a principal
amount equal to the aggregate Liquidation Amount of the Trust Preferred
Securities of such holder (a "Direct Action"). In connection with such Direct
Action, the Company will have a right of set-off under this Indenture to the
extent of any payment made by the Company to such holder of the Trust Preferred
Securities with respect to such Direct Action.
ARTICLE VIII
FORM OF DEBENTURE AND ORIGINAL ISSUE
SECTION 8.1 FORM OF DEBENTURE.
The Debenture and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the forms contained as Exhibit A to
this Indenture, attached hereto and incorporated herein by reference.
SECTION 8.2 ORIGINAL ISSUE OF DEBENTURES.
Debentures in the aggregate principal amount of Four Million One
Hundred Twenty-Five Thousand Dollars ($4,125,000) may, upon execution of this
Indenture, be executed by the Company and delivered to the Trustee for
authentication. The Trustee shall thereupon authenticate and deliver said
Debentures to or upon the written order of the Company, signed by its Chief
Executive Officer, President, or any Vice President and its Treasurer or an
Assistant Treasurer, without any further action by the Company.
ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.1 CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform with
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respect to the Debentures such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default
has occurred that has not been cured or waived, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their exercise, as a
prudent Person would exercise or use under the circumstances in the
conduct of its own affairs. No implied covenants shall be read into
this Indenture against the Trustee.
(b) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except
that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of
Default that may have occurred:
(A) the duties and obligations of the Trustee
shall with respect to the Debentures be
determined solely by the express provisions
of this Indenture, and the Trustee shall not
be liable with respect to the Debentures
except for the performance of such duties
and obligations as are specifically set
forth in this Indenture, and no implied
covenants or obligations shall be read into
this Indenture against the Trustee; and
(B) in the absence of bad faith on the part of
the Trustee, the Trustee may with respect to
the Debentures conclusively rely, as to the
truth of the statements and the correctness
of the opinions expressed therein, upon any
certificates or opinions furnished to the
Trustee and conforming to the requirements
of this Indenture; but in the case of any
such certificates or opinions that by any
provision hereof are specifically required
to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to
determine whether or not they conform to the
requirements of this Indenture;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer
or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good
faith in accordance with the direction of the holders
of not less than a majority in principal amount of
the Debentures at the time Outstanding relating to
the time, method and place of conducting any
proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the
Trustee under this Indenture with respect to the
Debentures; and
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(iv) none of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own
funds or otherwise incur personal financial liability
in the performance of any of its duties or in the
exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of
such funds or liability is not reasonably assured to
it under the terms of this Indenture or adequate
indemnity against such risk is not reasonably assured
to it.
SECTION 9.2 NOTICE OF DEFAULTS.
Within five (5) Business Days after actual knowledge by a Responsible
Officer of the Trustee of the occurrence of any default hereunder with respect
to the Debentures, the Trustee shall transmit by mail to all holders of the
Debentures, as their names and addresses appear in the Debenture Register,
notice of such default, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal or interest (including any Additional Interest) on any Debenture, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of the
directors and/or Responsible Officers of the Trustee determines in good faith
that the withholding of such notice is in the interests of the holders of such
Debentures; and provided, further, that in the case of any default of the
character specified in Section 7.1(a)(iii), no such notice to holders of
Debentures need be sent until at least 30 days after the occurrence thereof. For
the purposes of this Section 9.2, the term "default" means any event which is,
or after notice or lapse of time or both, would become, an Event of Default with
respect to the Debentures.
SECTION 9.3 CERTAIN RIGHTS OF TRUSTEE.
Except as expressly set forth in Section 9.1(b):
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board Resolution
or an instrument signed in the name of the Company by its President or
any Vice President and by the Secretary or an Assistant Secretary or
the Treasurer or an Assistant Treasurer thereof (unless other evidence
in respect thereof is specifically prescribed herein);
(c) The Trustee shall not be deemed to have knowledge of a
default or an Event of Default, other than an Event of Default
specified in Section 7.1(a)(i) or (ii), unless and until it receives
written notification of such Event of Default from the Company or by
holders of at least 25% of the aggregate principal amount of the
Debentures at the time Outstanding;
(d) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and
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protection in respect of any action taken or suffered or omitted
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,
order or direction of any of the Debentureholders, pursuant to the
provisions of this Indenture, unless such Debentureholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that may be incurred therein or
thereby; nothing contained herein shall, however, relieve the Trustee
of the obligation, upon the occurrence of an Event of Default of which
a Responsible Officer of the Trustee has actual knowledge (that is
continuing and has not been cured or waived) to exercise with respect
to the Debentures such of the rights and powers vested in it by this
Indenture, and to 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 his or her own affairs;
(f) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(g) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, security, or other papers or documents, unless
requested in writing so to do by the holders of not less than a
majority in principal amount of the Outstanding Debentures, determined
as provided in Article X; provided, however, that if the payment within
a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee
may require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding. The reasonable expense of
every such examination shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand; and
(h) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 9.4 TRUSTEE NOT RESPONSIBLE FOR RECITALS, ETC.
(a) The Recitals contained herein and in the Debentures shall
be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Debentures or of the proceeds
of such Debentures, or for the use
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or application of any money paid over by the Trustee in accordance with
any provision of this Indenture, or for the use or application of any
money received by any Paying Agent other than the Trustee.
SECTION 9.5 MAY HOLD DEBENTURES.
The Trustee or any Paying Agent or Debenture Registrar, in its
individual or any other capacity, may become the owner or pledgee of Debentures
with the same rights it would have if it were not Trustee, Paying Agent or
Debenture Registrar.
SECTION 9.6 MONEYS HELD IN TRUST.
Subject to the provisions of Section 13.5, all money received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except such as it
may agree with the Company to pay thereon.
SECTION 9.7 COMPENSATION AND REIMBURSEMENT.
(a) The Company covenants and agrees to pay to the Trustee,
and the Trustee shall be entitled to, such reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), as the Company and the
Trustee may from time to time agree in writing, for all services
rendered by it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties hereunder of
the Trustee, and, except as otherwise expressly provided herein, the
Company shall pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its counsel and of all Persons not regularly in its
employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Company also covenants to
indemnify the Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any loss, liability,
claim, action, suit, cost or expense incurred without negligence or bad
faith on the part of the Trustee and arising out of or in connection
with the acceptance or administration of this Indenture, including the
reasonable costs and expenses of defending itself against any claim of
liability in the premises.
(b) The obligations of the Company under this Section 9.7 to
compensate and indemnify the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness shall
be secured by a lien prior to that of the Debentures upon all property
and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the holders of particular Debentures.
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SECTION 9.8 RELIANCE ON OFFICERS' CERTIFICATE.
Except as expressly set forth in Section 9.1(b), whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Trustee and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted to be taken by it under the provisions of this Indenture
upon the faith thereof.
SECTION 9.9 DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire any "conflicting interest" within
the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act, if the Trust Indenture Act is then applicable to this
Indenture.
SECTION 9.10 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee with respect to the Debentures
issued hereunder which shall at all times be a corporation or national banking
association organized and doing business under the laws of the United States of
America or any State or Territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Commission,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, and subject to supervision or
examination by federal, state, territorial, or District of Columbia authority.
If such Person publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section 9.10, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. The Company may not, nor may
any Person directly or indirectly controlling, controlled by, or under common
control with the Company, serve as Trustee. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
9.10, the Trustee shall resign immediately in the manner and with the effect
specified in Section 9.11.
SECTION 9.11 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) The Trustee or any successor hereafter appointed, may at
any time resign by giving written notice thereof to the Company and by
transmitting notice of resignation by mail, first class postage
prepaid, to the Debentureholders, as their names and addresses appear
upon the Debenture Register. Upon receiving such notice of resignation,
the Company shall promptly appoint a successor trustee with respect to
this Indenture and Debentures by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to
the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the
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appointment of a successor trustee with respect to this Indenture and
Debentures, or any Debentureholder who has been a bona fide holder of a
Debenture or Debentures for at least six months may, subject to the
provisions of Sections 9.9 and 9.10, on behalf of himself and all
others similarly situated, petition any such court for the appointment
of a successor trustee. Such court may thereupon after such notice, if
any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
(i) the Trustee shall fail to comply with the provisions
of Section 9.9 after written request therefor by the
Company or by any Debentureholder who has been a bona
fide holder of a Debenture or Debentures for at least
six months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.10 and shall fail to
resign after written request therefor by the Company
or by any such Debentureholder; or
(iii) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or
commence a voluntary bankruptcy proceeding, or a
receiver of the Trustee; or
(iv) of its property shall be appointed or consented to,
or any public officer shall take charge or control of
the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Company may remove the Trustee with respect to this
Indenture and all Debentures and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee, or, subject to the provisions of Section 9.10, unless the
Trustee's duty to resign is stayed as provided herein, any Debentureholder who
has been a bona fide holder of a Debenture or Debentures for at least six months
may, on behalf of that holder and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may thereupon after such notice,
if any, as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
(c) The holders of a majority in aggregate principal amount of
the Debentures at the time Outstanding may at any time remove the
Trustee by so notifying the Trustee and the Company and may appoint a
successor Trustee with the consent of the Company.
(d) Any resignation or removal of the Trustee and appointment
of a successor trustee with respect to this Indenture and Debentures
pursuant to any of the provisions of this Section 9.11 shall become
effective upon acceptance of appointment by the successor trustee as
provided in Section 9.12.
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(e) Any successor trustee appointed pursuant to this Section
9.11 may be appointed with respect to this Indenture and Debentures,
and at any time there shall be only one Trustee with respect to this
Indenture and Debentures.
SECTION 9.12 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In the case of the appointment hereunder of a successor
trustee with respect to the Debentures, every 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 successor trustee, the Company shall
execute any and all instruments for more full and certain vesting in
and confirming to such successor trustee all such rights, powers and
trusts referred to in paragraph (a) of this Section 9.12.
(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 IX.
(d) Upon acceptance of appointment by a successor trustee as
provided in this Section 9.12, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage
prepaid, to the Debentureholders, as their names and addresses appear
upon the Debenture Register. If the Company fails to transmit such
notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.
SECTION 9.13 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 the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such Person shall be qualified
under the provisions of Section 9.9 and eligible under the provisions of Section
9.10, without the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Debentures shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Debentures so authenticated with the same effect as if such
successor Trustee had itself authenticated such Debentures.
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SECTION 9.14 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, if applicable, excluding any creditor relationship described in Section
311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed
shall be subject to Section 311(a) of the Trust Indenture Act to the extent
applicable and included therein.
ARTICLE X
CONCERNING THE DEBENTUREHOLDERS
SECTION 10.1 EVIDENCE OF ACTION BY HOLDERS.
(a) Whenever in this Indenture it is provided that the holders
of a majority or specified percentage in aggregate principal amount of
the Debentures may take any action (including the making of any demand
or request, the giving of any notice, consent or waiver or the taking
of any other action), the fact that at the time of taking any such
action the holders of such majority or specified percentage have joined
therein may be evidenced by any instrument or any number of instruments
of similar tenor executed by such holders of Debentures in Person or by
agent or proxy appointed in writing.
(b) If the Company shall solicit from the Debentureholders any
request, demand, authorization, direction, notice, consent, waiver or
other action, the Company may, at its option, as evidenced by an
Officers' Certificate, fix in advance a record date for the
determination of Debentureholders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other
action, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other action may be given before or after
the record date, but only the Debentureholders of record at the close
of business on the record date shall be deemed to be Debentureholders
for the purposes of determining whether Debentureholders of the
requisite proportion of Outstanding Debentures have authorized or
agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other action, and for that purpose the
Outstanding Debentures shall be computed as of the record date;
provided, however, that no such authorization, agreement or consent by
such Debentureholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 10.2 PROOF OF EXECUTION BY DEBENTUREHOLDERS.
Subject to the provisions of Section 9.1(b), proof of the execution of
any instrument by a Debentureholder (such proof shall not require notarization)
or his agent or proxy and proof of the holding by any Person of any of the
Debentures shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of
any instrument may be proved in any reasonable manner acceptable to the
Trustee or the Company.
(b) The ownership of Debentures shall be proved by the
Debenture Register of such Debentures or by a certificate of the
Debenture Registrar thereof.
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(c) The Trustee or the Company may require such additional
proof of any matter referred to in this Section 10.2 as it shall deem
necessary.
SECTION 10.3 WHO MAY BE DEEMED OWNERS.
Prior to the due presentment for registration of transfer of any
Debenture, the Company, the Trustee, any Paying Agent, any Authenticating Agent
and any Debenture Registrar may deem and treat the Person in whose name such
Debenture shall be registered upon the books of the Company as the absolute
owner of such Debenture (whether or not such Debenture shall be overdue and
notwithstanding any notice of ownership or writing thereon made by anyone other
than the Debenture Registrar) for the purpose of receiving payment of or on
account of the principal of and interest on such Debenture (subject to Section
2.3) and for all other purposes; and neither the Company nor the Trustee nor any
Paying Agent nor any Authenticating Agent nor any Debenture Registrar shall be
affected by any notice to the contrary.
SECTION 10.4 CERTAIN DEBENTURES OWNED BY COMPANY DISREGARDED.
In determining whether the holders of the requisite aggregate principal
amount of Debentures have concurred in any direction, consent or waiver under
this Indenture, the Debentures that are owned by the Company or any other
obligor on the Debentures or by any Person directly or indirectly controlling or
controlled by or under common control with the Company or any other obligor on
the Debentures shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination, except that (i) for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver, only Debentures that the Trustee actually knows
are so owned shall be so disregarded; and (ii) for the purposes of this Section
10.4, the Trust shall be deemed to not be controlled by the Company. The
Debentures so owned that have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section 10.4, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right so to act with
respect to such Debentures and that the pledgee is not a Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In case of a dispute as to
such right, any decision by the Trustee taken upon the advice of counsel shall
be full protection to the Trustee.
SECTION 10.5 ACTIONS BINDING ON FUTURE DEBENTUREHOLDERS.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 10.1, of the taking of any action by the holders of the
majority or percentage in aggregate principal amount of the Debentures specified
in this Indenture in connection with such action, any holder of a Debenture that
is shown by the evidence to be included in the Debentures the holders of which
have consented to such action may, by filing written notice with the Trustee,
and upon proof of holding as provided in Section 10.2, revoke such action so far
as concerns such Debenture. Except as aforesaid, any such action taken by the
holder of any Debenture shall be conclusive and binding upon such holder and
upon all future holders and owners of such Debenture, and of any Debenture
issued in exchange therefor, on registration of transfer thereof or in place
thereof, irrespective of whether or not any notation in regard thereto is made
upon such Debenture. Any action taken by the holders of the majority or
percentage in aggregate
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principal amount of the Debentures specified in this Indenture in connection
with such action shall be conclusively binding upon the Company, the Trustee and
the holders of all the Debentures.
ARTICLE XI
SUPPLEMENTAL INDENTURES
SECTION 11.1 SUPPLEMENTAL INDENTURES WITHOUT THE CONSENT OF
DEBENTUREHOLDERS.
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect, if applicable),
without the consent of the Debentureholders, for one or more of the following
purposes:
(a) to cure any ambiguity, defect, or inconsistency herein, or
in the Debentures;
(b) to comply with Article X;
(c) to provide for uncertificated Debentures in addition to or
in place of certificated Debentures;
(d) to add to the covenants of the Company for the benefit of
the holders of all or any of the Debentures or to surrender any right
or power herein conferred upon them to add to, delete from, or revise
the conditions, limitations, and restrictions on the authorized amount,
terms, or purposes of issue, authentication, and delivery of
Debentures, as herein set forth;
(e) to make any change that does not adversely affect the
rights of any Debentureholder in any material respect;
(f) to provide for the issuance of and establish the form and
terms and conditions of the Debentures, to establish the form of any
certifications required to be furnished pursuant to the terms of this
Indenture or of the Debentures, or to qualify or maintain the
qualification of this Indenture under the Trust Indenture Act, if
applicable; or
(g) to evidence a consolidation or merger involving the
Company as permitted under Section 12.1.
The Trustee is hereby authorized to join with the Company in the execution of
any such supplemental indenture, and to make any further appropriate agreements
and stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
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11.1 may be executed by the Company and the Trustee without the consent of the
holders of any of the Debentures at the time Outstanding, notwithstanding any of
the provisions of Section 11.2.
SECTION 11.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF DEBENTUREHOLDERS.
With the consent (evidenced as provided in Section 10.1) of the holders
of not less than a majority in aggregate principal amount of the Debentures at
the time Outstanding, the Company, when authorized by Board Resolutions, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect, if applicable) for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or of modifying in any manner
not covered by Section 11.1 the rights of the holders of the Debentures under
this Indenture; provided, however, that no such supplemental indenture shall
without the consent of the holders of each Debenture then Outstanding and
affected thereby, (i) extend the fixed maturity of any Debentures, reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, without the consent of the holder of each Debenture so
affected; or (ii) reduce the aforesaid percentage of Debentures, the holders of
which are required to consent to any such supplemental indenture; provided
further, that if the Debentures are held by the Trust or a trustee of the Trust,
such supplemental indenture shall not be effective until the holders of a
majority in liquidation preference of Trust Securities of the Trust shall have
consented to such supplemental indenture; provided further, that if the consent
of the holder of each Outstanding Debenture is required, such supplemental
indenture shall not be effective until each holder of the Trust Securities of
the Trust shall have consented to such supplemental indenture. It shall not be
necessary for the consent of the Debentureholders affected thereby under this
Section 11.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 11.3 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture pursuant to the
provisions of this Article XI, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the holders of Debentures shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 11.4 DEBENTURES AFFECTED BY SUPPLEMENTAL INDENTURES.
Debentures affected by a supplemental indenture, authenticated and
delivered after the execution of such supplemental indenture pursuant to the
provisions of this Article XI, may bear a notation in form approved by the
Company, provided such form meets the requirements of any national securities
exchange or automated quotation service upon which the Debentures may be listed
or quoted, as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Debentures so modified as to conform, in the
opinion of the Board of Directors of the Company, to any modification of this
Indenture contained in any such
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supplemental indenture may be prepared by the Company, authenticated by the
Trustee (upon written order of the Company) and delivered in exchange for the
Debentures then Outstanding.
SECTION 11.5 EXECUTION OF SUPPLEMENTAL INDENTURES.
(a) Upon the request of the Company, accompanied by its Board
Resolutions authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the
consent of Debentureholders required to consent thereto as aforesaid,
the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the
Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall
not be obligated to, enter into such supplemental indenture. The
Trustee, subject to the provisions of Sections 9.1(b), may receive an
Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article XI is authorized or
permitted by, and conforms to, the terms of this Article XI and that it
is proper for the Trustee under the provisions of this Article XI to
join in the execution thereof.
(b) Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the provisions of
this Section 11.5, the Trustee shall transmit by mail, first class
postage prepaid, a notice, setting forth in general terms the substance
of such supplemental indenture, to the Debentureholders as their names
and addresses appear upon the Debenture Register. Any failure of the
Trustee to mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such supplemental
indenture.
ARTICLE XII
SUCCESSOR CORPORATION
SECTION 12.1 COMPANY MAY CONSOLIDATE, ETC.
Nothing contained in this Indenture or in any of the Debentures shall
prevent any consolidation or merger of the Company with or into any other Person
(whether or not affiliated with the Company, as the case may be), or successive
consolidations or mergers in which the Company, as the case may be, or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of the property of the Company, as the
case may be, or its successor or successors as an entirety, or substantially as
an entirety, to any other Person (whether or not affiliated with the Company, as
the case may be, or its successor or successors) authorized to acquire and
operate the same; provided, however, the Company hereby covenants and agrees
that, (i) upon any such consolidation, merger, sale, conveyance, transfer or
other disposition, the due and punctual payment, in the case of the Company, of
the principal of and interest on all of the Debentures, according to their tenor
and the due and punctual performance and observance of all the covenants and
conditions of this Indenture to be kept or performed by the Company as the case
may be, shall be expressly assumed, by supplemental indenture (which shall
conform to the provisions of the Trust Indenture Act, to the extent the Trust
Indenture Act is then applicable to this Indenture or such supplemental
indenture)
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satisfactory in form to the Trustee in its good faith and executed and delivered
to the Trustee by the entity formed by such consolidation, or into which the
Company, as the case may be, shall have been merged, or by the entity which
shall have acquired such property; (ii) in case the Company consolidates with or
merges into another Person or conveys or transfers its properties and assets
substantially as an entirety to any Person, the successor Person is organized
under the laws of the United States or any state or the District of Columbia;
and (iii) immediately after giving effect thereto, no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing.
SECTION 12.2 SUCCESSOR PERSON SUBSTITUTED.
(a) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition and upon the assumption by
the successor Person, by supplemental indenture, executed and delivered
to the Trustee and satisfactory in form to the Trustee in good faith,
of, in the case of the Company, the due and punctual payment of the
principal of and interest on all of the Debentures Outstanding and the
due and punctual performance of all of the covenants and conditions of
this Indenture to be performed by the Company, as the case may be, such
successor Person shall succeed to and be substituted for the Company,
with the same effect as if it had been named as the Company herein, and
thereupon the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Debentures.
(b) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition such changes in phraseology
and form (but not in substance) may be made in the Debentures
thereafter to be issued as may be appropriate.
(c) Nothing contained in this Indenture or in any of the
Debentures shall prevent the Company from merging into itself or
acquiring by purchase or otherwise all or any part of the property of
any other Person (whether or not affiliated with the Company).
SECTION 12.3 EVIDENCE OF CONSOLIDATION, ETC. TO TRUSTEE.
The Trustee, subject to the provisions of Section 9.1(b), may receive
an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, conveyance, transfer or other disposition, and any such
assumption, comply with the provisions of this Article XII.
ARTICLE XIII
SATISFACTION AND DISCHARGE
SECTION 13.1 SATISFACTION AND DISCHARGE OF INDENTURE.
If at any time: (a) the Company shall have delivered to the Trustee for
cancellation all Debentures theretofore authenticated (other than any Debentures
that shall have been destroyed, lost or stolen and that shall have been replaced
or paid as provided in Section 2.9) and the principal and accrued interest of
all Debentures for whose payment money or Governmental Obligations have
theretofore been deposited in trust or segregated and held in trust by the
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Company (and thereupon repaid to the Company or discharged from such trust, as
provided in Section 13.5); or (b) all such Debentures not theretofore delivered
to the Trustee for cancellation shall have become due and payable, or are by
their terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit or cause to be
deposited with the Trustee as trust funds the entire amount in money or
Governmental Obligations sufficient or a combination thereof, sufficient in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay at
maturity or upon redemption all Debentures not theretofore delivered to the
Trustee for cancellation, including principal and interest due or to become due
to such date of maturity or date fixed for redemption, as the case may be, and
if the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company; then this Indenture shall thereupon cease to be of
further effect except for the provisions of Sections 2.3, 2.7, 2.9, 5.1, 5.2,
5.3, 9.7 and 9.10, that shall survive until the date of maturity or redemption
date, as the case may be, and Section 13.5, that shall survive to such date and
thereafter, and the Trustee, on demand of the Company and at the cost and
expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture.
SECTION 13.2 DISCHARGE OF OBLIGATIONS.
If at any time all Debentures not heretofore delivered to the Trustee
for cancellation or that have not become due and payable as described in Section
13.1 shall have been paid by the Company by depositing irrevocably with the
Trustee as trust funds money or an amount of Governmental Obligations sufficient
in the opinion of a nationally recognized certified public accounting firm to
pay at maturity or upon redemption all Debentures not theretofore delivered to
the Trustee for cancellation, including principal and interest due or to become
due to such date of maturity or date fixed for redemption, as the case may be,
and if the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company, then after the date such moneys or Governmental
Obligations, as the case may be, are deposited with the Trustee, the obligations
of the Company under this Indenture shall cease to be of further effect except
for the provisions of Sections 2.3, 2.7, 2.9, 5.1, 5.2, 5.3, 9.6, 9.7, 9.10 and
13.5 that shall survive until such Debentures shall mature and be paid.
Thereafter, Sections 9.7 and 13.5 shall survive.
SECTION 13.3 DEPOSITED MONEY TO BE HELD IN TRUST.
All money or Governmental Obligations deposited with the Trustee
pursuant to Sections 13.1 or 13.2 shall be held in trust and shall be available
for payment as due, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent), to the holders of the Debentures for
the payment or redemption of which such moneys or Governmental Obligations have
been deposited with the Trustee.
SECTION 13.4 PAYMENT OF MONEY HELD BY PAYING AGENTS.
In connection with the satisfaction and discharge of this Indenture,
all moneys or Governmental Obligations then held by any Paying Agent under the
provisions of this Indenture shall, upon demand of the Company, be paid to the
Trustee and thereupon such Paying Agent shall be released from all further
liability with respect to such money or Governmental Obligations.
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SECTION 13.5 REPAYMENT TO COMPANY.
Any money or Governmental Obligations deposited with any Paying Agent
or the Trustee, or then held by the Company in trust, for payment of principal
of or interest on the Debentures that are not applied but remain unclaimed by
the holders of such Debentures for at least two years after the date upon which
the principal of or interest on such Debentures shall have respectively become
due and payable, shall be repaid to the Company, as the case may be, on May 31
of each year or (if then held by the Company) shall be discharged from such
trust; and thereupon the Paying Agent and the Trustee shall be released from all
further liability with respect to such moneys or Governmental Obligations, and
the holder of any of the Debentures entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to the Company for the
payment thereof.
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 14.1 NO RECOURSE.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of the Debentures, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, past, present or future, as such, of the Company or of any predecessor
or successor Person, either directly or through the Company or any such
predecessor or successor Person, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate (or other entity, as the case may be)
obligations, and that no such personal liability whatever shall attach to, or is
or shall be incurred by, the incorporators, stockholders, officers or directors
as such, of the Company or of any predecessor or successor Person, or any of
them, because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Debentures or implied therefrom; and that any and all
such personal liability of every name and nature, either at common law or in
equity or by constitution or statute, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director as such,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Debentures or implied therefrom, are hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of such Debentures.
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ARTICLE XV
MISCELLANEOUS PROVISIONS
SECTION 15.1 EFFECT ON SUCCESSORS AND ASSIGNS.
All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Company shall bind its respective
successors and assigns, whether so expressed or not.
SECTION 15.2 ACTIONS BY SUCCESSOR.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
corresponding board, committee or officer of any Person that shall at the time
be the lawful successor of the Company.
SECTION 15.3 SURRENDER OF COMPANY POWERS.
The Company by instrument in writing executed by appropriate authority
of its Board of Directors and delivered to the Trustee may surrender any of the
powers reserved to the Company, and thereupon such power so surrendered shall
terminate both as to the Company, as the case may be, and as to any successor
Person.
SECTION 15.4 NOTICES.
Except as otherwise expressly provided herein any notice or demand that
by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the holders of Debentures to or on the Company may
be given or served by being deposited first class postage prepaid in a
post-office letterbox addressed (until another address is filed in writing by
the Company with the Trustee), as follows: United Bancorporation of Alabama,
Inc., P. O. Box 8, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000 , Attention:
Chief Executive Officer. Any notice, election, request or demand by the Company
or any Debenture holder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at the
Corporate Trust Office of the Trustee.
SECTION 15.5 GOVERNING LAW.
This Indenture and each Debenture shall be deemed to be a contract made
under the internal laws of the State of Delaware and for all purposes shall be
construed in accordance with the laws of said State, without regard to its
choice of law provisions. Any action or proceeding arising out of this
Indenture, as supplemented or amended, in any way shall be brought and enforced
exclusively in the applicable United States District Court in the State of
Delaware or in the event such court lacks jurisdiction, in the applicable
Delaware State Court.
SECTION 15.6 TREATMENT OF DEBENTURES AS DEBT.
The Company will treat the Debentures as indebtedness and not as equity
for federal income tax purposes. The provisions of this Indenture shall be
interpreted to further this treatment.
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SECTION 15.7 COMPLIANCE CERTIFICATES AND OPINIONS.
(a) Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and
an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent have been complied with, except that in the
case of any such application or demand as to which the furnishing of
such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
(b) Each certificate or opinion of the Company provided for in
this Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant in this Indenture shall include (i) a
statement that the Person making such certificate or opinion has read
such covenant or condition; (ii) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based; (iii) a
statement that, in the opinion of such Person, he has made such
examination or investigation as, in the opinion of such Person, is
necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and (iv) a
statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with; provided, however, that
each such certificate shall comply with the provisions of Section 314
of the Trust Indenture Act, if applicable.
SECTION 15.8 PAYMENTS ON BUSINESS DAYS.
In any case where the date of maturity of interest or principal of any
Debenture or the date of redemption of any Debenture shall not be a Business
Day, then payment of interest or principal may (subject to Section 2.5(c)) be
made on the next succeeding Business Day with the same force and effect as if
made on the nominal date of maturity or redemption, and no interest shall accrue
for the period after such nominal date.
SECTION 15.9 APPLICATION OF TRUST INDENTURE ACT; CONFLICT.
(a) Unless and until this Indenture is required to be
qualified under the Trust Indenture Act, (i) the provisions of this
Indenture that expressly relate to the Trust Indenture Act do not apply
and shall not be given effect; and (ii) notwithstanding any other
provision of this Indenture (including without limitation Sections 7.7,
9.1(b), 9.7(a) and 9.8 hereof), no Trustee shall be liable for its own
simple negligence, but shall only be liable for its own gross
negligence.
(b) If the Indenture is required to be qualified under the
Trust Indenture Act at any time, then if and to the extent that any
provision of this Indenture limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
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SECTION 15.10 COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one and the same instrument.
SECTION 15.11 SEVERABILITY.
In case any one or more of the provisions contained in this Indenture
or in the Debentures shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of the Debentures,
but this Indenture and the Debentures shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
SECTION 15.12 ASSIGNMENT.
The Company shall have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company, provided that, in the event of any such
assignment, the Company shall remain liable for all such obligations. Subject to
the foregoing, this Indenture is binding upon and inures to the benefit of the
parties thereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties hereto.
SECTION 15.13 ACKNOWLEDGMENT OF RIGHTS; RIGHT OF SET OFF.
(a) The Company acknowledges that, with respect to any
Debentures held by the Trust or a trustee of the Trust, if the Property
Trustee fails to enforce its rights under this Indenture as the holder
of the Debentures held as the assets of the Trust, any holder of Trust
Preferred Securities may, to the extent permitted under applicable law,
institute legal proceedings directly against the Company to enforce
such Property Trustee's rights under this Indenture without first
instituting any legal proceedings against such Property Trustee or any
other person or entity. Notwithstanding the foregoing, if an Event of
Default has occurred and is continuing and such event is attributable
to the failure of the Company to pay interest or principal on the
Debentures on the date such interest or principal is otherwise payable
(or in the case of redemption, on the redemption date), the Company
acknowledges that a holder of Trust Preferred Securities may directly
institute a proceeding against the Company for enforcement of payment
to such holder of the principal of or interest on the Debentures having
a principal amount equal to the aggregate liquidation amount of the
Trust Preferred Securities of such holder on or after the respective
due date specified in the Debentures.
(b) Notwithstanding anything to the contrary contained in this
Indenture, the Company shall have the right to setoff any payment it is
otherwise required to make hereunder in respect of any Trust Securities
to the extent that the Company has previously made, or is concurrently
making, a payment to the holder of any such Trust Securities under the
Trust Preferred Securities Guarantee or in connection with a proceeding
for enforcement of payment of the principal of or interest on the
Debentures directly brought by holders of any such Trust Securities.
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ARTICLE XVI
SUBORDINATION OF DEBENTURES
SECTION 16.1 AGREEMENT TO SUBORDINATE.
The Company covenants and agrees, and each holder of Debentures issued
hereunder by such holder's acceptance thereof likewise covenants and agrees,
that all Debentures shall be issued subject to the provisions of this Article
XVI; and each holder of a Debenture, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound by such
provisions. The payment by the Company of the principal of and interest on all
Debentures issued hereunder shall, to the extent and in the manner hereinafter
set forth, be subordinated and junior in right of payment to the prior payment
in full of all Senior Debt, Subordinated Debt and Additional Senior Obligations
of the Company (collectively, "Senior Indebtedness") to the extent provided
herein, whether outstanding at the date of this Indenture or thereafter
incurred. No provision of this Article XVI shall prevent the occurrence of any
default or Event of Default hereunder. In no event shall the Debentures be
subordinate to the Company's (i) trade accounts payable, or (ii) accrued
liabilities arising in the ordinary course of business; however, the Debentures
shall be subordinate to (i) any Debt of the Company to any of its subsidiaries
and (ii) Debt to any employees of the Company.
SECTION 16.2 DEFAULT ON SENIOR DEBT, SUBORDINATED DEBT OR ADDITIONAL
SENIOR OBLIGATIONS.
In the event and during the continuation of any default by the Company
in the payment of principal, premium, interest or any other payment due on any
Senior Indebtedness, or in the event that the maturity of any Senior
Indebtedness has been accelerated because of a default, then, in either case, no
payment shall be made by the Company with respect to the principal (including
redemption payments) of or interest on the Debentures. In the event that,
notwithstanding the foregoing, any payment shall be received by the Trustee when
such payment is prohibited by the preceding sentence of this Section 16.2, such
payment shall be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, but only to the extent that the holders of the Senior
Indebtedness (or their representative or representatives or a trustee) notify
the Trustee in writing within 90 days of such payment of the amounts then due
and owing on the Senior Indebtedness and only the amounts specified in such
notice to the Trustee shall be paid to the holders of Senior Indebtedness.
SECTION 16.3 LIQUIDATION; DISSOLUTION; BANKRUPTCY.
(a) Upon any payment by the Company or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or
liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other
proceedings, all amounts due upon all Senior Indebtedness of the
Company shall first be paid in full, or payment thereof provided for in
money in accordance with its terms,
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before any payment is made by the Company on account of the principal
or interest on the Debentures; and upon any such dissolution or
winding-up or liquidation or reorganization, any payment by the
Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the
holders of the Debentures or the Trustee would be entitled to receive
from the Company, except for the provisions of this Article XVI, shall
be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or
distribution, or by the holders of the Debentures or by the Trustee
under this Indenture if and to the extent received by them or it,
directly to the holders of Senior Indebtedness of the Company (pro rata
to such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders, as calculated by the Company) or
their representative or representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, as their respective interests
may appear, to the extent necessary to pay such Senior Indebtedness in
full, in money or money's worth, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior
Indebtedness, before any payment or distribution is made to the holders
of Debentures or to the Trustee.
(b) In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited by the
foregoing, shall be received by the Trustee before all Senior
Indebtedness of the Company is paid in full, or provision is made for
such payment in money in accordance with its terms, such payment or
distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Senior Indebtedness or
their representative or representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, and their respective
interests may appear, as calculated by the Company, for application to
the payment of all Senior Indebtedness of the Company, as the case may
be, remaining unpaid to the extent necessary to pay such Senior
Indebtedness in full in money in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the
benefit of the holders of such Senior Indebtedness.
(c) For purposes of this Article XVI, the words "cash,
property or securities" shall not be deemed to include shares of stock
of the Company as reorganized or readjusted, or securities of the
Company or any other Person provided for by a plan of reorganization or
readjustment, the payment of which is subordinated at least to the
extent provided in this Article XVI with respect to the Debentures to
the payment of all Senior Indebtedness of the Company, as the case may
be, that may at the time be outstanding, provided that (i) such Senior
Indebtedness is assumed by the new Person, if any, resulting from any
such reorganization or readjustment; and (ii) the rights of the holders
of such Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into,
another Person or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another Person upon the terms and
conditions provided for in Article XII shall not be deemed a
dissolution, winding-up, liquidation or
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reorganization for the purposes of this Section 16.3 if such other
Person shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article XII. Nothing in
Section 16.2 or in this Section 16.3 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 9.7.
SECTION 16.4 SUBROGATION.
(a) Subject to the payment in full of all Senior Indebtedness
of the Company, the rights of the holders of the Debentures shall be
subrogated to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of cash, property or securities of
the Company, as the case may be, applicable to such Senior Indebtedness
until the principal of and interest on the Debentures shall be paid in
full; and, for the purposes of such subrogation, no payments or
distributions to the holders of such Senior Indebtedness of any cash,
property or securities to which the holders of the Debentures or the
Trustee would be entitled except for the provisions of this Article
XVI, and no payment pursuant to the provisions of this Article XVI to
or for the benefit of the holders of such Senior Indebtedness by
holders of the Debentures or the Trustee, shall, as between the
Company, its creditors (other than holders of Senior Indebtedness), and
the holders of the Debentures, be deemed to be a payment by the Company
to or on account of such Senior Indebtedness. It is understood that the
provisions of this Article XVI are and are intended solely for the
purposes of defining the relative rights of the holders of the
Debentures, on the one hand, and the holders of such Senior
Indebtedness on the other hand.
(b) Nothing contained in this Article XVI or elsewhere in this
Indenture or in the Debentures is intended to or shall impair, as
between the Company, its creditors (other than the holders of Senior
Indebtedness of the Company), and the holders of the Debentures, the
obligation of the Company, which is absolute and unconditional, to pay
to the holders of the Debentures the principal of and interest on the
Debentures as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the
relative rights of the holders of the Debentures and creditors of the
Company, as the case may be, other than the holders of Senior
Indebtedness, as the case may be, nor shall anything herein or therein
prevent the Trustee or the holder of any Debenture from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article XVI of the
holders of such Senior Indebtedness in respect of cash, property or
securities of the Company, as the case may be, received upon the
exercise of any such remedy.
(c) Upon any payment or distribution of assets of the Company
referred to in this Article XVI, the Trustee, subject to the provisions
of Section 9.1(b), and the holders of the Debentures shall be entitled
to conclusively rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a certificate
of the receiver, trustee in bankruptcy, liquidation trustee, agent or
other Person making such payment or distribution, delivered to the
Trustee or to the holders of the Debentures, for the purposes of
ascertaining the Persons entitled to participate in such distribution,
the holders of
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Senior Indebtedness and other indebtedness of the Company, as the case
may be, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to
this Article XVI.
SECTION 16.5 TRUSTEE TO EFFECTUATE SUBORDINATION.
Each holder of Debentures by such holder's acceptance thereof
authorizes and directs the Trustee on such holder's behalf to take such action
as the Company advises the Trustee in writing is necessary or appropriate to
effectuate the subordination provided in this Article XVI and appoints the
Trustee such holder's attorney-in-fact for any and all such purposes.
SECTION 16.6 NOTICE BY THE COMPANY.
(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 of money to or by the
Trustee in respect of the Debentures pursuant to the provisions of this
Article XVI. Notwithstanding the provisions of this Article XVI or any
other provision of this Indenture, the Trustee shall not be charged
with knowledge of the existence of any facts that would prohibit the
making of any payment of money to or by the Trustee in respect of the
Debentures pursuant to the provisions of this Article XVI, unless and
until a Responsible Officer of the Trustee shall have received written
notice thereof from the Company or a holder or holders of Senior
Indebtedness or from any trustee therefore; and before the receipt of
any such written notice, the Trustee, subject to the provisions of
Section 9.1(b), shall be entitled in all respects to assume that no
such facts exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section 16.6 at least two
Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without
limitation, the payment of the principal of or interest on any
Debenture), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purposes for which 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, subject to the provisions of Section 9.1(b),
shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of
Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee on behalf of any such holder or holders. In
the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a
holder of such Senior Indebtedness to participate in any payment or
distribution pursuant to this Article XVI, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of such Senior Indebtedness held by such
Person, the extent to which such Person is entitled to participate in
such payment or distribution and any other facts pertinent to the
rights of such Person under this Article XVI, and, if such evidence is
not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such
payment.
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SECTION 16.7 RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR INDEBTEDNESS.
(a) The Trustee in its individual capacity shall be entitled
to all the rights set forth in this Article XVI in respect of any
Senior Indebtedness at any time held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder. The
Trustee's right to compensation and reimbursement of expenses as set
forth in Section 9.7 shall not be subject to the subordination
provisions of the Article XVI.
(b) With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants
and obligations as are specifically set forth in this Article XVI, and
no implied covenants or obligations with respect to the holders of such
Senior Indebtedness shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to
the holders of such Senior Indebtedness and, subject to the provisions
of Section 9.1(b), the Trustee shall not be liable to any holder of
such Senior Indebtedness if it shall in good faith pay over or deliver
to holders of Debentures, the Company or any other Person money or
assets to which any holder of such Senior Indebtedness shall be
entitled by virtue of this Article XVI or otherwise.
SECTION 16.8 SUBORDINATION MAY NOT BE IMPAIRED.
(a) No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the
Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or
otherwise be charged with.
(b) Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness of the Company
may, at any time and from time to time, without the consent of or
notice to the Trustee or the holders of the Debentures, without
incurring responsibility to the holders of the Debentures and without
impairing or releasing the subordination provided in this Article XVI
or the obligations hereunder of the holders of the Debentures to the
holders of such Senior Indebtedness, do any one or more of the
following: (i) change the manner, place or terms of payment or extend
the time of payment of, or renew or alter, such Senior Indebtedness, or
otherwise amend or supplement in any manner such Senior Indebtedness or
any instrument evidencing the same or any agreement under which such
Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise
securing such Senior Indebtedness; (iii) release any Person liable in
any manner for the collection of such Senior Indebtedness; and (iv)
exercise or refrain from exercising any rights against the Company and
any other Person.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Indenture is dated as set forth below and
effective as of the day and year first above written.
United Bancorporation of Alabama, Inc.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: President
Date: 6/18/02
Xxxxx Fargo Bank, National Association,
AS TRUSTEE
By: /s/ Xxx Xxxxxxx
Name: Xxx Xxxxxxx
Title: Vice President
Date: 6/27/02
------------------------------------
[Signature Page to Indenture]
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EXHIBIT A
FLOATING RATE JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURE
OF UNITED BANCORPORATION OF ALABAMA, INC.
