Exhibit 4.3
LOCAL FINANCIAL CORPORATION
AND
THE BANK OF NEW YORK
Trustee
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INDENTURE
Dated as of September 8, 1997
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up to $80,000,000
11.0% Senior Notes due 2004
TABLE OF CONTENTS
ARTICLE ONE
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Definitions and Other Provisions of General Application ...........................................1
Section 1.01. Definitions .......................................................................................1
Section 1.02. Compliance Certificates and Opinions..............................................................12
Section 1.03. Form of Documents Delivered to Trustee............................................................13
Section 1.04. Acts of Noteholders...............................................................................13
Section 1.05. Notices, etc., to Trustee and Company.............................................................14
Section 1.06. Notice to Noteholders; Waiver.....................................................................15
Section 1.07. Effect of Headings and Table of Contents..........................................................15
Section 1.08. Successors and Assigns............................................................................15
Section 1.09. Separability......................................................................................15
Section 1.10. Benefits of Indenture.............................................................................16
Section 1.11. Governing Law.....................................................................................16
Section 1.12. Compliance with Trust Indenture Act...............................................................16
Section 1.13. Legal Holidays....................................................................................16
Section 1.14. No Recourse Against Others........................................................................16
ARTICLE TWO
Note Forms...................................................17
Section 2.01. Forms Generally...................................................................................17
Section 2.02. Form of Face of Note..............................................................................17
Section 2.03. Form of Reverse of Note...........................................................................20
Section 2.04. Form of Trustee's Certificate of Authentication...................................................26
ARTICLE THREE
The Notes...................................................26
Section 3.01. Title and Terms...................................................................................26
Section 3.02. Denominations.....................................................................................27
Section 3.03. Execution, Authentication, Delivery and Dating....................................................27
Section 3.04. Temporary Notes...................................................................................28
Section 3.05. Registration; Registration of Transfer and Exchange...............................................28
Section 3.06. Mutilated, Destroyed, Lost and Stolen Notes.......................................................31
Section 3.07. Payment of Interest; Interest Rights Preserved...................................................31
Section 3.08. Persons Deemed Owners.............................................................................33
Section 3.09. Cancellation......................................................................................33
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Section 3.10. Authentication and Delivery of Original Issue.....................................................33
Section 3.11. Computation of Interest...........................................................................33
ARTICLE FOUR
Satisfaction and Discharge...........................................34
Section 4.01. Satisfaction and Discharge of Indenture...........................................................34
Section 4.02. Application of Trust Money........................................................................35
ARTICLE FIVE
Events of Default and Remedies.......................................35
Section 5.01. Events of Default.................................................................................35
Section 5.02. Acceleration of Maturity; Rescission and Annulment................................................37
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee...................................39
Section 5.04. Trustee May File Proofs of Claim..................................................................39
Section 5.05. Trustee May Enforce Claims Without Possession of Notes............................................40
Section 5.06. Application of Money Collected....................................................................40
Section 5.07 Limitation on Suits...............................................................................41
Section 5.08. Unconditional Right of Noteholders to Receive Principal,
Premium and Interest..................................................................42
Section 5.09. Restoration of Rights and Remedies................................................................42
Section 5.10. Rights and Remedies Cumulative....................................................................42
Section 5.11. Delay or Omission Not Waiver......................................................................42
Section 5.12. Control by Noteholders............................................................................42
Section 5.13. Waiver of Past Defaults...........................................................................43
Section 5.14. Undertaking for Costs.............................................................................43
Section 5.15. Waiver of Stay or Extension Laws..................................................................44
ARTICLE SIX
The Trustee..........................................................44
Section 6.01. Certain Duties and Responsibilities...............................................................44
Section 6.02. Notice of Defaults................................................................................45
Section 6.03. Certain Rights of Trustee.........................................................................45
Section 6.04. Not Responsible for Recitals or Issuance of Notes.................................................46
Section 6.05. May Hold Notes....................................................................................47
Section 6.06. Money Held in Trust...............................................................................47
Section 6.07. Compensation and Reimbursement....................................................................47
Section 6.08. Disqualification; Conflicting Interests...........................................................48
Section 6.09. Corporate Trustee Required; Eligibility...........................................................48
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Section 6.10. Resignation and Removal; Appointment of Successor.................................................48
Section 6.11. Acceptance of Appointment by Successor............................................................50
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.......................................50
Section 6.13. Preferential Collection of Claims Against the Company.............................................50
Section 6.14 Trustee's Application for Instructions from the Company.............................. 50
ARTICLE SEVEN
Noteholders' Lists and Reporting by Trustee and Company...........................................51
Section 7.01. Company to Furnish Trustee Names and Addresses of Noteholders.....................................51
Section 7.02. Preservation of Information; Communications to Noteholders........................................51
Section 7.03. Reports by Trustee................................................................................51
Section 7.04. Reports by Company................................................................................52
Section 7.05. Calculation of Original Issue Discount........................................................... 52
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease..............................................52
Section 8.01. Company May Consolidate, etc., Only on Certain Terms..............................................52
Section 8.02. Successor Entity Substituted......................................................................53
ARTICLE NINE
Supplemental Indentures..............................................53
Section 9.01. Supplemental Indentures Without Notice to or Consent of
Noteholders...........................................................................53
Section 9.02. Supplemental Indentures With Consent of Noteholders...............................................54
Section 9.03. Execution of Supplemental Indentures..............................................................55
Section 9.04. Effect of Supplemental Indentures.................................................................55
Section 9.05. Reference in Notes to Supplemental Indentures.....................................................55
Section 9.06. Conformity With Trust Indenture Act...............................................................55
ARTICLE TEN
Covenants............................................................56
Section 10.01. Payment of Principal, Interest and Premium.......................................................56
Section 10.02. Maintenance of Office or Agency..................................................................56
Section 10.03. Money for Note Payments to be Held In Trust......................................................56
Section 10.04. Payment of Taxes and Other Claims................................................................57
Section 10.05. Corporate Existence..............................................................................58
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Section 10.06. Maintenance of Depository Institution Subsidiary.................................................58
Section 10.07. Maintenance of Properties........................................................................58
Section 10.08. Insurance........................................................................................59
Section 10.09. Books and Records................................................................................59
Section 10.10. Statements as to Compliance......................................................................59
Section 10.11. Limitations on Indebtedness......................................................................60
Section 10.12. Limitations on Restricted Payments...............................................................60
Section 10.13. Limitations on Dividends and Other Payment Restrictions
Affecting Subsidiaries................................................................61
Section 10.14. Restrictions on Issuance and Sale or Disposition
of Capital Stock of Subsidiaries......................................................62
Section 10.15. Limitations on Transactions with Affiliates......................................................62
Section 10.16. Limitations on Liens and Guarantees..............................................................63
Section 10.17. Liquidity Maintenance............................................................................64
Section 10.18. Interest Reserve Account.........................................................................64
Section 10.19. Offer to Purchase Upon a Change of Control.......................................................65
Section 10.20. Payments for Consent.............................................................................67
Section 10.21. Waiver of Certain Covenants......................................................................67
ARTICLE ELEVEN
Defeasance and Covenant Defeasance...................................67
Section 11.01. Applicability of Article; Company's Option to Effect Defeasance
or Covenant Defeasance................................................................67
Section 11.02. Defeasance and Discharge.........................................................................67
Section 11.03. Covenant Defeasance..............................................................................68
Section 11.04. Conditions to Defeasance or Covenant Defeasance..................................................68
Section 11.05. Deposited Money and U.S. Government Obligations to be Held
in Trust; Other Miscellaneous Provisions..............................................70
Section 11.06. Reinstatement....................................................................................71
Section 11.07. Execution in Counterparts........................................................................71
Exhibit A Form of Security Agreement
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NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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INDENTURE, dated as of September 8, 1997, between LOCAL
FINANCIAL CORPORATION, a Delaware corporation, having its principal office at
0000 XX 00xx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000-0000 (the "Company"), and THE
BANK OF NEW YORK, a New York banking corporation, having its principal corporate
trust office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation, execution and
delivery of its 11.0% Senior Notes due 2004 (the "Notes"), and to provide the
terms and conditions upon which the Notes are to be authenticated, issued and
delivered, the Company has duly authorized the execution of this Indenture.
All acts and things necessary to make the Notes, when executed
by the Company and authenticated and delivered by the Trustee as in this
Indenture provided, the legal, valid and binding obligations of the Company, and
to constitute these presents as a valid indenture and agreement according to its
terms, have been done and performed, and the execution of this Indenture and the
issuance hereunder of the Notes have in all respects been duly authorized, and
the Company, in the exercise of the legal right and power vested in it, executes
this Indenture and proposes to make, execute and deliver the Notes.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Notes as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 1.01. Definitions.
For all purposes of this Indenture except as otherwise
expressly provided or unless the context otherwise requires:
(1) All references in this instrument to designated
"Articles," "Sections" and other subdivisions are to the designated articles,
sections and other subdivisions of this instrument as originally executed. The
words "herein," "hereto" 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;
(2) the terms defined in this Article have the meaning
assigned to them in this Article, and include the plural as well as the
singular;
1
(3) all other terms used herein which are defined in the Trust
Indenture Act of 1939, as amended, either directly or by reference therein, have
the meanings assigned to them therein; and
(4) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, which, with respect to any computation required or permitted
hereunder, shall mean such accounting principles as are generally accepted at
the date or time of such computation.
Certain terms, used principally in Article Six, are defined in
that Article.
"Act" when used with respect to any Noteholder has the meaning
specified in Section 1.04.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings corresponding to the
foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee to act on behalf of the Trustee to authenticate Notes.
"Authorized Newspaper" means a newspaper of general
circulation in the relevant geographic area, printed in the English language and
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays. Whenever successive weekly publications in an
Authorized Newspaper are required hereunder they may be made, unless otherwise
expressly provided herein, on the same or different days of the week and in the
same or in different Authorized Newspapers.
"Banks" means (a) Local Federal Bank, F.S.B. and Local America
Bank, F.S.B., and in each case, until one or more successors shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Banks" shall mean such successor or successors; and (b) any bank or savings or
depository institution that is or shall become an Affiliate of the Company.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"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, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day upon which banking institutions or trust companies
in the city in which the principal corporate trust office of the Trustee is
located are authorized or required by law, regulation or executive order to
remain closed.
2
"Capital Lease Obligation" of any Person means any obligations
of such Person under any capital lease for real or personal property which, in
accordance with GAAP, is required to be recorded as a capitalized lease
obligation; and, for the purpose of this Indenture, the amount of such
obligation at any date shall be the capitalized amount thereof at such date,
determined in accordance with GAAP.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents in the equity (however
designated) of such Person and any rights (other than debt securities
convertible into an equity interest), warrants or options to acquire an equity
interest in such Person.
"Change of Control" means the occurrence of any of the
following events: (i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that
a person shall be deemed to have "beneficial ownership" of all securities that
such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than 25% of the total Voting Stock of the Company, (ii) the Company consolidates
with, or merges into, another person, or sells, assigns, conveys, transfers,
leases or otherwise disposes of all or substantially all of its assets to any
person, or any person consolidates with, or merges into, the Company, in any
such event pursuant to a transaction in which the outstanding Voting Stock of
the Company is changed into or exchanged for cash, securities or other property,
other than any such transaction between the Company and a Wholly Owned
Subsidiary, or (iii) during any period of two consecutive years, individuals who
at the beginning of such period constituted the Company's Board of Directors
(together with any new directors whose elections by the Company's Board of
Directors or whose nomination for elections by the stockholders of the Company
was approved by a vote of a majority of the directors then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the directors then in office.
"Change of Control Purchase Date" has the meaning specified in
Section 10.19.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company Consent," "Company Order" and "Company Request" mean,
respectively, a written consent, order or request signed in the name of the
Company by its Chairman of the Board, President or a Vice President, and by its
Treasurer, an Assistant Treasurer, Controller, an Assistant Controller,
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
3
"Consolidated Net Income (Loss)" of any Person means, for any
period, the consolidated net income (or loss) of such Person and its
consolidated Subsidiaries for such period as determined in accordance with GAAP,
adjusted, to the extent included in calculating such net income (loss), by
excluding, without duplication, (i) all extraordinary gains and losses (other
than those relating to the use of net operating losses of such Person carried
forward), less all fees and expenses relating thereto, net of taxes, (ii) the
portion of net income (or loss) of any other Person (other than any of such
Person's consolidated Subsidiaries) in which such Person or any of its
Subsidiaries has an ownership interest, except to the extent of the amount of
dividends or other distributions actually paid to such Person or its
consolidated Subsidiaries in cash by such other Person during such period, (iii)
net income (or loss) of any Person combined with such Person or any of its
Subsidiaries on a "pooling of interests" basis attributable to any period prior
to the date of combination, (iv) any gain or loss, net of taxes, realized upon
the termination of any employee pension benefit plan or (v) the net income of
any consolidated Subsidiary of such Person to the extent that the declaration or
payment of dividends or similar distributions by that Subsidiary of that income
is not at the time permitted, directly or indirectly, by operation of the terms
of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulations applicable to that Subsidiary or its
shareholders; provided that, upon the termination or expiration of such dividend
or distribution restrictions, the portion of net income (or loss) of such
consolidated Subsidiary allocable to such Person and previously excluded shall
be added to the Consolidated Net Income (Loss) of such Person to the extent of
the amount of dividends or other distributions available to be paid to such
Person in cash by such Subsidiary.
"Consolidated Tangible Net Worth" of any Person and its
Subsidiaries means as of the date of determination all amounts that would be
included under stockholders' equity on a consolidated balance sheet of such
Person and its Subsidiaries determined in accordance with GAAP, less an amount
equal to the consolidated intangible assets (other than capitalized mortgage
servicing rights) of such Person and its Subsidiaries determined in accordance
with GAAP.
"Default" means any event that upon notice or the passage of
time or both would be an Event of Default.
"Defaulted Interest" has the meaning specified in Section
3.07.
"Depositary" means the Person designated to act as Depositary
by the Company in Section 3.01, and any successor Depositary hereunder.
"Disqualified Capital Stock" means any Capital Stock which, by
its terms (or by the terms of any security into which it is convertible or
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part on, or prior to, or is
exchangeable for debt securities of the Company or its Subsidiaries prior to,
the final Stated Maturity of principal of the Notes; provided that only the
amount of such Capital Stock that matures or is redeemable prior to the Stated
Maturity of principal of the Notes shall be deemed to be Disqualified Capital
Stock.
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"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" means, with respect to any asset, the
price which could be negotiated in an arm's-length free market transaction, for
cash, between a willing seller and a willing buyer, neither of which is under
compulsion to complete the transaction as determined by the Board of Directors
of the Company, acting in good faith, and shall be evidenced by a Board
Resolution delivered to the Trustee.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"GAAP" means generally accepted accounting principles.
"Global Note" means a Note that evidences all or part of the
Notes authenticated and delivered to the Depositary or its nominee, and
registered in the name of such Depository or its nominee in accordance with
Section 3.03, and bearing the legend(s) prescribed in the form of Note contained
in Section 2.02.
"Guaranteed Indebtedness" of any Person means, without
duplication, all Indebtedness of any other Person guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed directly or
indirectly by such Person through an agreement (i) to pay or purchase such
Indebtedness or to advance or supply funds for the payment or purchase of such
Indebtedness; (ii) to purchase, sell or lease (as lessee or lessor) property, or
to purchase or sell services, primarily for the purpose of enabling the debtor
to make payment of such Indebtedness or to assure the holder of such
Indebtedness against loss; (iii) to supply funds to, or in any other manner
invest in, the debtor (including any agreement to pay for property or services
without requiring that such property be received or such services be rendered);
(iv) to maintain working capital or equity capital of the debtor, or otherwise
to maintain the net worth, solvency or other financial condition of the debtor;
or (v) otherwise to assure a creditor with respect to Indebtedness against loss;
provided that the term "guarantee" shall not include endorsements for collection
or deposit, in the ordinary course of business.
"Holder" when used with respect to any Note means a
Noteholder.
"Indebtedness" means, with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services, excluding any trade payables
and other accrued current liabilities arising in the ordinary course of
business, but including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of credit issued under
letter of credit facilities, and in connection with any agreement by such Person
to purchase, redeem, exchange, convert or otherwise acquire for value any
Capital Stock of such Person now or hereafter outstanding; (ii) all obligations
of such Person evidenced by bonds, notes, debentures or other similar
instruments; (iii) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even if the rights and remedies of the seller or lender
under such agreement in the event of default
5
are limited to repossession or sale of such property), but excluding trade
payables arising in the ordinary course of business; (iv) all obligations under
interest rate agreements of such Person; (v) all Capital Lease Obligations of
such Person; (vi) all Indebtedness referred to in clauses (i) through (v) above
of other Persons and all dividends payable by other Persons, the payment of
which is secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien, upon or
with respect to property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness (the amount of such obligations
being deemed to be the lesser of the value of such property or asset or the
amount of the obligations so secured); (vii) all guarantees by such Person of
Guaranteed Indebtedness; (viii) all Disqualified Capital Stock (valued at the
greater of book value and voluntary or involuntary maximum fixed repurchase
price plus accrued and unpaid dividends) of such Person; and (ix) any amendment,
supplement, modification, deferral, renewal, extension, refunding or refinancing
or any liability of the types referred to in clauses (i) through (viii) above.
For purposes hereof, (x) the "maximum fixed repurchase price" of any
Disqualified Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Capital Stock as if
such Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to the Indenture, and if such price
is based upon, or measured by, the fair market value of such Disqualified
Capital Stock, such fair market value is to be determined in good faith by the
board of directors (or any duly authorized committee thereof) of the issuer of
such Disqualified Capital Stock, and (y) Indebtedness is deemed to be incurred
pursuant to a revolving credit facility each time an advance is made thereunder.
"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 pursuant to the applicable provisions hereof.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Notes.
"Interest Reserve Account" shall have the meaning specified in
Section 10.18(a).
"Issue Date" means the date on which the Notes are originally
issued.
"Junior Indebtedness" means any Indebtedness of the Company
subordinated in right of payment of either principal, premium (if any) or
interest thereon to the Notes.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), security interest, hypothecation or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable, now
owned or hereafter acquired.
"Liquid Assets" shall include: (i) cash; (ii) any of the
following instruments that have a remaining term to maturity not in excess of 90
days from the determination date: (a) repurchase agreements on obligations of,
or are guaranteed as to timely receipt of principal and interest by, the United
States or any agency or instrumentality thereof when such obligations are backed
by the full faith and credit of the United States, provided that the party
agreeing to
6
repurchase such obligations is a primary dealer in U.S. government securities,
(b) federal funds and deposit accounts, including but not limited to
certificates of deposit, time deposits and bankers' acceptances of any U.S.
depository institution or trust company incorporated under the laws of the
United States or any state, provided that the debt of such depository
institution or trust company at the date of acquisition thereof has been rated
by Standard & Poor's Corporation in the highest short-term rating category or
has an equivalent rating from another nationally recognized rating agency, or
(c) commercial paper of any corporation incorporated under the laws of the
United States or any state thereof that on the date of acquisition is rated
investment grade by Standard & Poor's Corporation or has an equivalent rating
from another nationally recognized rating agency; (iii) any debt instrument
which is an obligation of, or is guaranteed as to the receipt of principal and
interest by the United States, its agencies or any U.S. government sponsored
enterprise, or (iv) any mortgage-backed or mortgage-related security issued by
the United States, its agencies, or any U.S. government sponsored enterprise, as
to which the payment of principal and interest from the mortgages underlying
such securities will be passed through to the holder thereof and which has a
remaining weighted average maturity of 15 years or less. Notwithstanding the
forgoing, Liquid Assets shall not include any debt instruments, securities or
collateralized mortgage obligations (real estate mortgage investment conduits)
that would be classified as a "High-Risk Mortgage Security" pursuant to the
policy statement adopted by the Federal Financial Institutions Examination
Counsel on February 10, 1992, as reflected in Volume I of the Federal Reserve
Report Service, Part 3-1562.
"Maturity" when used with respect to any Note means the date
on which the principal of such Note becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration or
otherwise.
"Net Cash Proceeds" means, with respect to any issuance or
sale of Capital Stock, or options, warrants or rights to purchase Capital Stock,
or debt securities or Capital Stock that have been converted into or exchanged
for Capital Stock, or any capital contribution in respect of Capital Stock, the
proceeds of such issuance or sale or capital contribution in the form of cash or
cash equivalents, including payments in respect of deferred payment obligations
when received in the form of, or stock or other assets when disposed for, cash
or cash equivalents (except to the extent that such obligations are financed or
sold with recourse to the Company or any Subsidiary of the Company), net of
attorney's fees, accountant's fees and brokerage, consulting, underwriting and
other fees and expenses actually incurred in connection with such issuance or
sale or capital contribution and net of taxes paid or payable by the Company as
a result thereof.
"Note" means either individually or collectively, as the
context requires, the Senior Notes due 2004, as amended or supplemented from
time to time in accordance with the terms hereof, issued under this Indenture on
the Issue Date.
"Noteholder" means a Person in whose name a Note is registered
in the Note Register.
"Note Register" and "Note Registrar" have the respective
meanings specified in Section 3.05.
7
"Offer to Purchase" means an offer by the Company to
repurchase Notes, as set forth in Section 10.19 hereof.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President and by the Treasurer,
an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary
or Assistant Secretary of the Company, and delivered to the Trustee. Wherever
this Indenture requires that an Officers' Certificate also be signed by an
accountant or other expert, such accountant or other expert, except as otherwise
expressly provided in this Indenture, may be in the employ of the Company and
shall be acceptable to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may, except as otherwise expressly provided in this Indenture, be counsel for or
an employee of the Company and who shall be acceptable to the Trustee.
"Outstanding" when used with respect to Notes means, as of the
date of determination of Notes Outstanding, all Notes theretofore authenticated
and delivered under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Notes for whose payment money in the necessary amount has
been theretofore irrevocably deposited with the Trustee or any Paying Agent in
trust for the Holders of such Notes; and
(c) Notes which have been paid pursuant to Section 3.06 or
authenticated and delivered in exchange for or in lieu of which other Notes have
been authenticated and delivered pursuant to this Indenture, other than any such
Notes in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide purchaser in whose
hand such Notes are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Notes Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or Affiliate of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Notes which the Trustee has actual knowledge to be so
owned shall be so disregarded. Notes so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Notes and that the pledgee is not the Company or any other obligor upon the
Notes or any Affiliate of the Company or Affiliate of such other obligor.
"OTS" means the Office of Thrift Supervision or any successor
thereto.
8
"Paying Agent" means any Person authorized by the Company to
pay the principal of and premium, if any, or interest on any Notes on behalf of
the Company. Initially, the Paying Agent shall be the Trustee.
"Permitted Investments" means one or more of the following
types of investments:
(i) interest-bearing deposit accounts of any "insured
depository institution," as defined in Section 3(c) of the Federal
Deposit Insurance Act, as amended;
(ii) direct obligations of, or obligations the principal and
interest on which are unconditionally guaranteed by, the United States
of America or any agency or instrumentality thereof;
(iii) obligations of any corporate issuer which are rated in
one of the two highest rating categories of any nationally-recognized
statistical rating organization;
(iv) repurchase agreements with banks, brokers or dealers
involving any of the foregoing types of securities; and
(v) money market mutual funds;
provided that, notwithstanding anything to the contrary contained herein,
Permitted Investments shall not include any of the foregoing investments to the
extent that any such investment, in the good faith business judgment of the
Board of Directors of the Company, evidenced by a Board Resolution delivered to
the Trustee, involves at the time of acquisition or thereafter a reasonable
likelihood of a loss of principal.
"Permitted Payment" means, so long as no Default or Event of
Default is continuing,
(a) the purchase, redemption, defeasance or other acquisition
or retirement for value of any Capital Stock of the Company or any Affiliate
(other than a Wholly-Owned Subsidiary, which is unrestricted) of the Company, or
any Junior Indebtedness of the Company which may be incurred pursuant to Section
10.11 hereof in exchange for (including any such exchange pursuant to the
exercise of a conversion right or privilege where, in connection therewith, cash
is paid in lieu of the issuance of fractional shares or scrip), or out of the
Net Cash Proceeds or Fair Market Value of property not constituting Net Cash
Proceeds of, a substantially concurrent issue and sale (other than to a
Subsidiary of the Company or to an employee benefit plan of the Company or any
of its Subsidiaries) of Qualified Capital Stock of the Company; provided that
the Net Cash Proceeds or Fair Market Value of such property received by the
Company from the issuance of such shares of Qualified Capital Stock, to the
extent so utilized, shall be excluded from clause (d)(iii) of Section 10.12
hereof; and
(b) the repurchase, redemption, defeasance or other
acquisition or retirement for value of any Junior Indebtedness of the Company
which may be incurred pursuant to Section 10.11 hereof in exchange for, or out
of the Net Cash Proceeds of, a substantially concurrent issue and sale (other
than to a Subsidiary of the Company) of new Indebtedness to the Company
9
(such a transaction, a "refinancing"); provided, that any such new Indebtedness
of the Company (i) shall be in a principal amount that does not exceed an amount
equal to the sum of (A) the principal amount of the Junior Indebtedness so
refinanced less any discount from the face amount of such Junior Indebtedness to
be refinanced expected to be deducted from the amount payable to the holders of
such Junior Indebtedness in connection with such refinancing, (B) the amount of
any premium expected to be paid in connection with such refinancing pursuant to
the terms of any Junior Indebtedness of the Company which may be incurred
pursuant to Section 10.11 hereof refinanced or the amount of any premium
reasonably determined by the Company as necessary to accomplish such refinancing
by means of a tender offer, privately negotiated repurchase or otherwise and (C)
the amount of legal, accounting, printing and other similar expenses of the
Company incurred in connection with such refinancing; provided, further, that
for purposes of this clause (i), the principal amount of any Indebtedness shall
be deemed to mean the principal amount thereof or, if such Indebtedness provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration thereof, such lesser amount as of the date of
determination; (ii) each Stated Maturity of principal (or any required
repurchase, redemption, defeasance or sinking fund payments) of such new
Indebtedness shall be after the final Stated Maturity of principal of the Notes
then outstanding; and (iii) is made expressly subordinated to the Notes to
substantially the same extent as the Junior Indebtedness being refinanced or
expressly subordinate to such refinanced Indebtedness.
"Person" means any natural person, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" means a city or any political subdivision
thereof designated as such in Article Three.
"Predecessor Notes" of any particular Note means every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Qualified Capital Stock" of any Person means any and all
Capital Stock of such Person other than Disqualified Capital Stock.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of September 8, 1997, among the Company and certain
investors in the Company's Notes and Capital Stock.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the date specified for that purpose in Section 3.07.
"Regulatory Capital Requirements" means (i) the minimum amount
of capital required to meet each of the industry-wide regulatory capital
requirements applicable to the Banks pursuant to 12 U.S.C. Section 1464(t) and
12 C.F.R. Part 567 (and any amendment to either thereof) or any successor law or
regulation, and (ii) such higher amount of capital as the Banks, individually,
are required to maintain in order to meet any individual minimum capital
standard applicable to the Banks pursuant to 12 U.S.C. Section 1464(s) and 12
C.F.R. Section 567.3 (and any amendment to either thereof) or any successor law
or regulation.
10
"Responsible Officer" when used with respect to the Trustee
means any officer of the Trustee with responsibility of the administration of
this Indenture and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Note" means a Note, unless or until it has been
(i) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering it or (ii) distributed to
the public pursuant to Rule 144 (or any similar provision then in force) under
the Securities Act.
"Restricted Payment" means
(a) the declaration, payment or setting apart of any funds for
the payment of any dividend on, or making of any distribution to holders of, the
Capital Stock of the Company or any Subsidiary of the Company (other than (i)
dividends or distributions in Qualified Capital Stock of the Company and, and
(ii) dividends or distributions payable on or in respect of any class or series
of Capital Stock of a Subsidiary of the Company as long as the Company receives
at least its pro rata share of such dividends or distributions in accordance
with its ownership interests in such class or series of Capital Stock);
(b) the purchase, redemption or other acquisition or
retirement for value, directly or indirectly, of any Capital Stock of the
Company or any Affiliate of the Company (other than a Wholly-Owned Subsidiary);
or
(c) the making of any principal payments on, or repurchase,
redemption, defeasance, retirement or other acquisition for value, directly or
indirectly, of any Junior Indebtedness, prior to the Stated Maturity of
principal or scheduled redemption or defeasance of, or any scheduled sinking
fund payment on, such Junior Indebtedness.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means the Security Agreement to be
entered into by the Company and a bank or trust company pursuant to Section
10.18(a) hereof, which shall be substantially in the form of the Security
Agreement attached as Exhibit A to this Indenture.
"Special Record Date" for the payment of any Defaulted
Interest, as defined in Section 3.07, means a date fixed by the Trustee pursuant
to Section 3.07.
"Stated Maturity" when used with respect to any Note or any
installment of interest thereon means the date specified in such Note as the
fixed date on which the principal of such Note or such installment of interest
is due and payable.
11
"Subsidiary" means any corporation of which at least a
majority of the outstanding stock having ordinary voting power to elect a
majority of the directors of such corporation, irrespective of whether or not at
the time stock of any other class or classes of such corporation shall have or
might have voting power by reason of the happening of any contingency, is at the
time directly or indirectly owned by the Company, by one or more Subsidiaries of
the Company, or by the Company and one or more Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, as in force at the date as of which this instrument was executed,
except as otherwise provided in Section 9.06.
"Vice President' when used with respect to the Company or the
Trustee means any vice president, whether or not designated by a number or a
word or words before or after the title "vice president."
"Voting Stock" means Capital Stock of any class or classes,
however designated, having ordinary voting power for the election of a majority
of the board of directors, other than stock having such power only by reason of
the occurrence of a contingency.
"Wholly Owned Subsidiary" means a Subsidiary of which all of
the outstanding Capital Stock (other than directors' qualifying shares) is at
the time directly or indirectly owned by the Company, or by one or more Wholly
Owned Subsidiaries or by the Company and one or more Wholly Owned Subsidiaries.
Section 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such certificate or opinion is specifically required by
any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
12
(3) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee.
In any case in which several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary (except in the case of a natural person) that all such matters be
certified by, or covered by the opinion of, only one representative of such
Person, or that they be so certified or covered by only one document, but one
representative of such Person may certify or give an opinion with respect to
some matters and one or more other representatives of such Person may certify or
give an opinion as to other matters, and any duly authorized representative of
such Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations,
with respect to the matters upon which such officer's certificate or opinion is
based, are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, any officer of the Company who may sign an Officers'
Certificate, stating that the information with respect to such factual matters
is in the possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters is or are erroneous.
Where any Person is required to make, give or execute two or
more applications, request, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 1.04. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee, and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as an "Act" of the
Noteholders signing such instruments or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose under this Indenture and, subject to Section 6.01, conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section 1.04.
13
Without limiting the generality of the foregoing, a
Noteholder, including the Depositary that is a Noteholder of a Global Note, may
make, give or take, by a proxy or proxies, duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted in this Indenture to be made, given or taken by
Noteholders, and the Depositary that is a Noteholder of a Global Note may
provide its proxy or proxies to the beneficial owners of interest in any such
Global Note.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be provided in any reasonable manner which the
Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Note shall bind the Holder
of every Note issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done or suffered to be done
by the Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Note.
(e) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, 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 Act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Notes shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
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 1.05. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Noteholders or other document provided for or
permitted by this Indenture to be made upon, given or furnished to, or filed
with,
(1) the Trustee by any Noteholder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its principal corporate trust office specified
in the first paragraph of this Indenture or at any other address furnished in
writing to the Noteholders or the Company by the Trustee, or
(2) the Company by the Trustee or by any Noteholder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address furnish in writing to the
Trustee by the Company.
14
Section 1.06. Notice to Noteholders; Waiver.
Where this Indenture provides for notice to Noteholders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Noteholder affected by such event, at such Noteholder's address as it
appears in the Note Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice. In any case
where notice to Noteholders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Noteholder
shall affect the sufficiency of such notice with respect to other Noteholders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event required to have been described in such notice, and such
wavier shall be the equivalent of such notice. Waivers of notice by Noteholders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such wavier.
In case, by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impracticable to give such notice
by mail as required by this Indenture, then such notification as shall be made
with the approval of the Trustee shall constitute a sufficient notification for
every purpose hereunder.
In case, by reason of the suspension of publication of any
Authorized Newspaper, or by reason of any other cause, it shall be impossible to
make publication of any notice in an Authorized Newspaper or Authorized
Newspapers as required by this Indenture, then such method of publication or
notification as shall be made with the approval of the Trustee shall constitute
a sufficient publication of such notice.
Section 1.07. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents hereof are for convenience only and shall not affect the construction
hereof.
Section 1.08. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 1.09. Separability.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired.
15
Section 1.10. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Noteholders, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 1.11. Governing Law.
This Indenture and each Note shall be governed by and
construed in accordance with the laws of the State of New York as applied to
contracts made or investments entered into and, in each case, made and performed
in the State of New York without regard to principles of conflicts of laws.
Section 1.12. Compliance with Trust Indenture Act.
This Indenture is subject to and shall be governed by the
provisions of the Trust Indenture Act that are required to be a part of this
Indenture. If any provision hereof limits, qualifies or conflicts with another
provision which is required under or deemed to be included in this Indenture by
any of the provisions of the Trust Indenture Act, such required or deemed
provisions shall control.
Section 1.13. Legal Holidays.
In any case where any Interest Payment Date or Stated Maturity
of any Note shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Notes (other
than a provision of the Notes which specifically states that such provision
shall apply in lieu of this Section)) payment of interest or principal (and
premium, if any) need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
such Interest Payment Date or Stated Maturity, as the case may be.
Section 1.14. No Recourse Against Others.
This Indenture and the Notes are solely corporate obligations
of the Company. No recourse shall be had against, and no personal liability
shall attach to, any director, officer, employee, incorporator, stockholder or
Affiliate, past, present or future, of the Company or any successor thereto, or
any of them, because of the creation of the indebtedness hereby authorized, or
under, upon or by reason of any obligation, covenant or agreement contained in
this Indenture or in any of the Notes or implied therefrom or any claim based
thereon or in respect thereof; it being expressly understood that all such
recourse and personal liability are hereby expressly waived and released as a
condition of, and as consideration for, the execution of this Indenture and the
issuance of such Notes.
16
ARTICLE TWO
Note Forms
Section 2.01. Forms Generally.
The Notes and the certificates of authentication thereon shall
be in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange, or as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes. Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Notes.
The definitive Notes shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or in such other manner as the Company may deem appropriate, all as
determined by the officers executing such Notes, as evidenced by their execution
of such Notes.
Section 2.02. Form of Face of Note.
[If a Global Note to be held by The Depository Trust Company,
then insert -- UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS EXCHANGED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[If a Global Note, then insert - THIS IS A GLOBAL NOTE WITHIN
THE MEANING OF THE INDENTURE. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN
PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL NOTE MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
[If a Restricted Note(s), then insert -- THIS NOTE HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW.
NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, SUCH REGISTRATION.
17
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO BE
BOUND BY THE PROVISIONS OF A REGISTRATION RIGHTS AGREEMENT WITH THE COMPANY AND,
IN CONNECTION THEREWITH, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE,
PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH
THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF THIS NOTE) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS NOTE
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE
IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (E)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE COMPANY OR THE TRUSTEE
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C), (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. SUCH HOLDER FURTHER AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.]
18
LOCAL FINANCIAL CORPORATION
11.0% SENIOR NOTE DUE 2004
CUSIP No.______
$______________ No.______
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR A DEPOSIT AND IS NOT INSURED
BY THE UNITED STATES OR ANY AGENCY OF THE UNITED STATES.
Local Financial Corporation, a Delaware corporation (together
with any successor corporation that is permitted under the Indenture hereinafter
referred to, herein called the "Company"), for value received, hereby promises
to pay to , or registered assigns, the principal sum of Dollars on September 8,
2004, and to pay interest thereon at the rate of 11.0% per annum from September
8, 1997 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually, commencing March 1, 1998, and each
March 1 and September 1 thereafter, until the principal hereof is paid or made
available for payment, and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of 11.0% per annum on any overdue
principal (and premium, if any) and on any overdue installment of interest until
paid.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be
calculated on the basis of a 360-day year of twelve 30-day months, and will be
paid to the Person in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on the Regular Record Date for such
interest, which shall be each February 15 and August 15 prior to the applicable
Interest Payment Date. Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the registered Holder on such Regular
Record Date, and may be paid to the Person in whose name this Note (or one or
more Predecessor Notes) is registered at the close of business on a Special
Record Date for the payment of such defaulted interest to be fixed by the
Trustee, notice whereof shall be given to the Holders not less than ten days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in said Indenture. Payment of the
principal of and interest on this Note will be made at the office or agency of
the Company maintained for that purpose in New York, New York or at such other
office or agency as may be established by the Company pursuant to the Indenture
(initially the principal corporate trust office of the Trustee in New York, New
York), in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that, at the option of the Company, payment of interest may be made
(subject to collection) by check mailed to the address of the Person entitled
thereto as such address shall appear on the Note Register.
Reference is hereby made to the further provisions of this
Note set forth on the reverse side hereof and such further provisions shall for
all purposes have the same effect as though fully set forth at this place.
19
This Note shall not be entitled to any benefit, or be valid or
obligatory for any purpose under the Indenture until the certificate of
authentication hereon shall have been manually signed by the Trustee.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed in its name by the manual or facsimile signature of its Chairman,
President or Vice President and its corporate seal, or a facsimile thereof,
impressed or imprinted hereon, attested by the manual or facsimile signature of
its Secretary or Assistant Secretary.
LOCAL FINANCIAL CORPORATION
[Corporate Seal]
By:
-------------------------------------
Chairman, President or Vice President
Attest:
--------------------------------
Secretary or Assistant Secretary
Section 2.03. Form of Reverse of Note.
This Note is one of a duly authorized issue of Notes of the
Company designated as its 11.0% Senior Notes due 2004 (herein called the
"Notes"), limited in aggregate principal amount to $80,000,000, issued and to be
issued under an Indenture dated as of September 8, 1997 (herein called the
"Indenture"), between the Company and The Bank of New York, as Trustee (herein
called the "Trustee," which term includes any successor Trustee under the
Indenture), to which the Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights thereunder of
the Company, the Trustee and the Holders of the Notes, and the terms upon which
the Notes are, and are to be, authenticated and delivered. Copies of the
Indenture and all indentures supplemental thereto will be made available to the
Holders for inspection during normal business hours at the principal office of
the Company, which on the date hereof is located at 0000 XX 00xx Xxxxxx,
Xxxxxxxx Xxxx, Xxxxxxxx 00000-0000, and copies of the Indenture and all
indentures supplemental thereto will be mailed to any Holder by the Company upon
the Company's receipt of the written request of such Holder, sent to the Company
addressed to the attention of the Company's Corporate Secretary at the principal
office of the Company.
The indebtedness of the Company evidenced by the Notes,
including the principal thereof and interest thereon (including post-default
interest), (a) is, to the extent and in the manner set forth in the Indenture,
subordinate and junior in right of payment to the Trustee's fees and expenses,
and (b) is not secured by any collateral, including the assets of the Company or
any of its Affiliates. Each Holder of a Note, by acceptance hereof, agrees to
and shall be bound by such provisions of the Indenture and all other provisions
of the Indenture.
20
If an Event of Default under the Indenture shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture. The Indenture provides
that such declaration and its consequences may, in certain events, be annulled
by the Holders of a majority in principal amount of the Notes Outstanding.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Notes under the
Indenture at any time by the Company with the consent of the Holders of a
majority in aggregate principal amount of the Notes at the time Outstanding, as
determined in accordance with the Indenture. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount of
the Notes at the time Outstanding, on behalf of the Holders of all the Notes, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by a Holder of this Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Note and of any Note issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made on this Note.
No references herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of, premium, if any,
and interest on this Note at the times, places and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, this Note is transferable on the Note Register of
the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company to be maintained for that purpose in New York,
New York, or at such other office or agency as may be established by the Company
for such purpose pursuant to the Indenture (initially the principal corporate
trust office of the Trustee in New York, New York), duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note Registrar duly executed by, the Holder hereof or his or her
attorney duly authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
Section 10.19 of the Indenture provides that upon the
occurrence of a Change of Control and subject to further limitations contained
therein, the Company shall make an offer to purchase the Notes in accordance
with the procedures set forth in the Indenture.
All Notes are issuable and transferable only in fully
registered form, without coupons, in denominations of $1,000 or integral
multiples in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Notes are exchangeable for a like aggregate
principal amount of Notes of a different authorized denomination, as requested
by the Holder surrendering the same.
21
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Certain capitalized terms used in this Note which are not
defined herein have the meanings set forth in the Indenture and exhibits
thereto.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Note is registered as the owner
hereof for all purposes, whether or not this Note be overdue, and neither the
Company, the Trustee, nor any such agent shall be affected by notice to the
contrary.
22
---------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Note to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
_________________________________________________________ agent to transfer this
Note. The agent may substitute another to act for him or her.
Date: _____________________________
Signature: _________________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee*: ___________________________________
--------
* Signature must be guaranteed by an "eligible guarantor institution" that is a
bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined in addition to, or
in substitution for, STAMP, all in accordance with the Securities and Exchange
Act of 1934, as amended.
23
In connection with any transfer of this Note the undersigned confirms that such
Note is being:
CHECK ONE BOX BELOW
(1) |_| exchanged for the undersigned's own account without
transfer; or
(2) |_| transferred pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
(3) |_| transferred pursuant to and in compliance with Regulation S
under the Securities Act of 1933; or
(4) |_| transferred to an "accredited investor" within the meaning
of Rule 501 under the Securities Act of 1933 that is
acquiring the Note for its own account, or for the account
of such an "accredited investor," for invest- ment purposes
and not with a view to, or for offer or sale in con- nection
with, any distribution in violation of the Securities Act of
1933; or
(5) |_| transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933; or
(6) |_| transferred pursuant to an effective registration statement.
-----------------------
Signature
24
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company
pursuant to Section 10.18 of the Indenture, check the box below:
|_|
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 10.19 of the Indenture, state the amount:
$_______
Date: Your Signature:
---------------- -------------------------------------------
(Sign exactly as your name appears on the
other side of this Note)
Signature Guarantee:
-----------------------------------------------------------
(Signature must be guaranteed by a member firm of the
New York Stock Exchange or a commercial bank or trust
company)
25
Section 2.04. Form of Trustee's Certificate of Authentication.
This is one of the Notes referred to in the within-mentioned Indenture.
Dated: The Bank of New York, as Trustee
By:
----------------------------
Authorized Signatory
ARTICLE THREE
The Notes
Section 3.01. Title and Terms.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to $80,000,000,
except for Notes authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of other Notes pursuant to Sections 3.04, 3.05,
3.06 and 9.05 or in connection with an Offer to Purchase Notes pursuant to
Section 10.19.
The Notes shall be known and designated as the 11.0% Senior
Notes due 2004 of the Company. The Stated Maturity of the principal thereof
shall be September 8, 2004, and shall bear interest from the date and at the
rate per annum specified in, and such interest shall be payable on the dates
specified in, the form of Note set forth in Sections 2.02 and 2.03, until the
principal thereof is paid or made available for payment.
The principal of (and premium, if any) and interest on the
Notes shall be payable at the office or agency of the Company maintained for
such purposes in New York, New York ("Place of Payment"), or at such other
office or agency as may be established by the Company (initially the principal
corporate trust office of the Trustee in New York, New York) pursuant to Section
10.02, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that, at the option of the Company, payment of interest may be made
(subject to collection) by check mailed to the address of the Person entitled
thereto as such address shall appear on the Note Register.
The Depository for the Notes to be authenticated and delivered
in the form of a Global Note or Notes upon original issuance shall be The
Depository Trust Company ("DTC"). DTC or any successor Depositary must, at all
times while it serves as such Depositary, be a clearing agency registered under
the Exchange Act and any other applicable statute or regulation.
The Notes shall be subject to repurchase by the Company
pursuant to an Offer to Purchase as provided in Section 10.19.
26
The Notes shall be subject to defeasance at the option of the
Company as provided in Article Eleven
The Notes issued under any provision of this Indenture shall
bear the applicable legends contained in the form of Note set forth in Section
2.02, unless the Company shall have delivered a Company Order to the Trustee
directing that the Note may be issued without such legend(s) thereon.
Section 3.02. Denominations.
The Notes shall be issuable and transferable only in
registered form without coupons and only in denominations of $1,000 and any
integral multiple above that amount.
Section 3.03. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by its
Chairman, President or one of its Vice Presidents under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Notes may be manual
or facsimile.
Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Notes or did
not hold such offices at the date of such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Notes; and the Trustee shall authenticate
and make such Notes available for delivery as provided in this Indenture.
In authenticating Notes in accordance with any Company Order
as provided in the preceding paragraph, the Trustee shall be entitled to
receive, and (subject to Section 6.01) shall be fully protected in relying upon,
an Opinion of Counsel stating, that such Notes when authenticated and made
available for delivery by the Trustee and issued by the Company in the manner
and subject to the conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder.
27
The Company shall execute and the Trustee shall authenticate
one or more Global Notes that (i) shall represent an aggregate amount equal to
the aggregate principal amount of such of the Outstanding Notes as the Company
shall have directed the Trustee to authenticate in the form of a Global Note or
Global Notes, (ii) shall be registered in the name of the Depositary or the
nominee of the Depositary, (iii) shall be made available for delivery by the
Trustee to the Depositary or pursuant to the Depositary's instruction and (iv)
shall bear a legend(s) substantially as provided in the form of Note contained
in Section 2.02 (or in the form required by the Depositary).
Section 3.04. Temporary Notes.
Pending the preparation of definitive Notes, the Company may
execute and upon Company Order the Trustee shall authenticate and make available
for delivery, temporary Notes which are printed, lithographed, typewritten,
mimeographed or otherwise produced in any authorized denomination, substantially
of the tenor of the definitive Notes in lieu of which they are issued, but with
such appropriate insertions, omissions, substitutions or other variations as the
officers executing such Notes may determine to be necessary or appropriate, as
evidenced by their execution of such Notes.
If temporary Notes are issued, the Company will cause
definitive Notes to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes shall be exchangeable for
definitive Notes upon surrender of the temporary Notes at the office or agency
of the Company in a Place of Payment, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes, the Company shall
execute and the Trustee shall authenticate and make available for delivery in
exchange therefor a like principal amount of definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes.
Section 3.05. Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at one of its offices or
agencies maintained pursuant to Section 10.02, a register (herein sometimes
referred to as the "Note Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Notes and of transfers of Notes. Said office or agency is hereby initially
appointed "Note Registrar" for the purpose of registering Notes and transfers of
Notes as herein provided.
Upon surrender for registration of transfer of any Note at the
office or agency of the Company in the Place of Payment, the Company shall
execute, and the Trustee shall authenticate and make available for delivery, in
the name of the designated transferee or transferees, one or more new Notes of
any authorized denominations, of a like aggregate principal amount.
28
At the option of the Holder, Notes may be exchanged for other
Notes of any authorized denominations, of a like aggregate principal amount upon
surrender of the Notes to be exchanged at such office or agency. Whenever any
Notes are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, the Notes which the
Noteholder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Note
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing. As a condition to the registration of transfer of any Restricted
Notes, the Company or the Trustee may require evidence reasonably satisfactory
to it as to compliance with the restrictions set forth in the legend referred to
below.
No service charge shall be made for any registration of
transfer or exchange of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Sections 3.04 and 9.05 or in accordance with any Offer to
Purchase pursuant to Section 10.19 not involving any transfer.
All Restricted Notes issued hereunder shall bear the legend as
provided in the form of Note contained in Section 2.02. All Restricted Notes
issued upon transfer or exchange or replacement thereof shall bear such legend
unless the Company shall have delivered to the Trustee (and the Note Registrar,
if other than the Trustee) a Company Order which states that the Note may be
issued without such legend thereon.
Notwithstanding any other provision of this Section, unless
and until it is exchanged in whole or in part for the individual Notes
represented thereby, a Global Note representing all or a portion of the Notes
may not be transferred except as a whole by the Depositary to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or if at any time the Depositary
shall no longer be eligible under Section 3.01, the Company shall appoint a
successor Depositary. If a successor Depositary is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of individual Notes, will
authenticate and deliver individual Notes in an aggregate principal amount equal
to the principal amount of the Global Note or Global Notes representing Notes in
exchange for such Global Note or Global Notes.
29
The Company may at any time and in its sole discretion
determine that individual Notes issued in the form of one or more Global Notes
shall in whole or in part no longer be represented by such Global Note or Global
Notes. In such event, or if an Event of Default has occurred and is continuing,
the Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of individual Notes, will authenticate and make
available for delivery, individual Notes in an aggregate principal amount equal
to the principal amount of the Global Note or Global Notes to be exchanged
therefor.
The Depositary may surrender a Global Note in exchange in
whole or in part for individual Notes on such terms as are acceptable to the
Company and such Depositary. Thereupon, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, without service
charge,
(i) to each Person specified by such Depositary a new
individual Note or Notes of any authorized denomination as requested by
such Person in aggregate principal amount equal to and in exchange for
such Person's beneficial interest in the Global Note; and
(ii) to such Depositary a new Global Note in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Note and the aggregate principal amount of
individual Notes delivered to Holders thereof.
Upon the exchange of a Global Note for individual Notes, such
Global Note shall be cancelled by the Trustee. Individual Notes issued in
exchange for a Global Note pursuant to this Section shall be registered in such
names and in such authorized denominations as the Depositary for such Global
Note, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee and the Company shall not
have any liability for the accuracy of the instructions received from the
Depositary. The Trustee shall deliver such Notes to the Persons in whose names
such Notes are so registered.
Neither the Company nor the Trustee shall have any
responsibility or obligation to any participant in the Depositary, any Person
claiming a beneficial ownership interest in the Notes under or through the
Depositary or any such participant, or any other Person which is not shown on
the Note Register as being a Holder, with respect to (1) the Notes; (2) the
accuracy of any records maintained by the Depositary or any such participant;
(3) the payment by the Depositary or any such participant of any amount in
respect of the principal of, or premium, if any, or interest on the Notes; (4)
any notice which is permitted or required to be given to Holders of Notes under
this Indenture; or (5) any consent given or other action taken by the Depositary
as Holder of Notes.
Each Holder of a Note agrees to indemnify the Company and the Trustee
against any liability that may result from the transfer, exchange or assignment
of such Holder's Note in violation of any provision of this Indenture and/or
applicable United States federal or state securities law.
30
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Note (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Note) other than to
require delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Notes.
If (i) any mutilated Note is surrendered to the Trustee, or
the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, and (ii) there is delivered to the
Company and the Trustee such security or indemnity satisfactory to and as may be
required by each of them to hold each of them harmless, then, in the absence of
prior written notice to the Company or the Trustee that such Note has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and make available for delivery, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
new Note of like tenor and principal amount, bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay the Holder of such Note the entire unpaid
principal balance of such Note, together with all accrued but unpaid interest
thereon.
Upon issuance of any new Note under this Section, 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 (including attorneys'
fees and expenses), connected therewith.
Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude, to the extent lawful, all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 3.07. Payment of Interest; Interest Rights Preserved.
Interest on any Note which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest payment specified
in this Article Three.
31
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having been
such Holder; and, except as hereinafter provided, such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in clause (1) or
clause (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount
of the Defaulted Interest proposed to be paid on each Note and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest,
which shall not be more than 15 days nor less than ten days prior to the date of
the proposed payment and not less than ten days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Noteholder at his address as it appears in the Note Register, not less
than ten days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once in an Authorized Newspaper in each Place of
Payment, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of proposed payment of such
Defaulted Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose names
the Notes (or their respective Predecessor Notes with respect to transfers
between a Special Record Date and the Interest Payment Date related thereto) are
registered on such Special Record Date and shall no longer be payable pursuant
to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, if, after written notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
The Regular Record Date referred to in this Section for the
payment of interest payable, and punctually paid or duly provided for, on any
Interest Payment Date shall be each February 15 or August 15 prior to the
applicable Interest Payment Date.
32
All payments of interest on the Notes to the Persons entitled
thereto, whether made by the Company, the Trustee or any Paying Agent, as
authorized pursuant to this Indenture, may be made by check mailed to the
address of the Person entitled thereto, as such address shall appear on the Note
Register.
Section 3.08. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Note is registered as the owner
of such Note for the purpose of receiving payment of principal of and premium,
if any, and (subject to Section 3.07) interest on, such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 3.09. Cancellation.
All Notes surrendered for payment, registration of transfer,
exchange or conversion shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and, if not already canceled, shall be
promptly canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Notes previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and all Notes so
delivered shall be promptly canceled by the Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes canceled as provided in
this Section, except as expressly permitted by this Indenture. All canceled
Notes held by the Trustee shall be disposed of by the Trustee as directed by the
Company; provided, that in no event shall the Trustee be required to destroy any
canceled Notes.
Section 3.10. Authentication and Delivery of Original Issue.
Forthwith upon the execution and delivery of this Indenture,
or from time to time thereafter, Notes up to the aggregate principal amount of
$80,000,000 may be executed by the Company and delivered to the Trustee for
authentication upon original issue, and shall thereupon be authenticated and
delivered by the Trustee upon Company Order, without any further action by the
Company.
Section 3.11. Computation of Interest.
Interest on the Notes shall be computed on the basis of a
360-day year comprised of twelve 30-day months.
33
ARTICLE FOUR
Satisfaction and Discharge
Section 4.01. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect, and the
Trustee, on Company Order of and at the expense of the Company, shall execute
the proper instrument acknowledging satisfaction and discharge of this
Indenture, when
(1) either
(A) all Notes theretofore authenticated and
delivered, other than (i) Notes which have been destroyed, mutilated, lost or
stolen, and which have been replaced or paid as provided in Section 3.06, and
(ii) Notes for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 10.03, have been delivered
to the Trustee for cancellation; or
(B) all such Notes not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at the
Stated Maturity of the principal thereof within one year,
and the Company, in the case of (B)(i) or (ii) above, has deposited or caused to
be deposited with the Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on such Notes not
theretofore delivered to the Trustee canceled or for cancellation, for
principal, premium, if any, and interest to the date of such deposit, in the
case of Notes which have become due and payable, or to the Stated Maturity of
the principal thereof, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.07 and,
if money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 4.02
and the last paragraph of Section 10.03 shall survive.
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Section 4.02. Application of Trust Money.
All money deposited with the Trustee pursuant to Section 4.01
shall be held in trust and applied by it, in accordance with the provisions of
the Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal,
premium, if any, and interest for whose payment such money has been deposited
with the Trustee; but such money need not be segregated from other funds except
to the extent required by law.
ARTICLE FIVE
Events of Default and Remedies
Section 5.01. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of the principal of or premium, if
any, on any Note at its Maturity; or
(2) default in the payment of any interest upon any Note when
it becomes due and payable, and continuance of such default for a period of 30
days; or
(3) default in the performance, or breach, of Section 8.01; or
(4) default, on the Change of Control Purchase Date, in the
purchase of Notes required to be purchased by the Company pursuant to an Offer
to Purchase which has been made to all Holders; or
(5) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture, other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section 5.01
specifically dealt with, and continuance of such default or breach for a period
of 30 days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Notes, a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
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(6) default by the Company or any Subsidiary of the Company in
the payment at stated maturity of any Indebtedness for money borrowed by the
Company or any Subsidiary of the Company with a principal amount due at maturity
which is equal to or greater than 5% of the Company's Consolidated Tangible Net
Worth, provided such default shall continue, without having been satisfied,
cured, waived or consented to, beyond any applicable period of grace, and after
acceleration of such Indebtedness, for 30 days; or receipt by the Trustee of
written notice of the occurrence of an event of default under any mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company or any
Subsidiary of the Company (or the payment of which is guaranteed by the Company
or any Subsidiary of the Company), whether such Indebtedness or guarantee now
exists or shall be created hereafter, and such default shall continue, without
having been satisfied, cured, waived or consented to, beyond any applicable
period of grace, and after acceleration of such Indebtedness, for 30 days;
provided, however, that no such event of default shall constitute an Event of
Default hereunder unless the effect of such event of default is to cause the
acceleration of such Indebtedness prior to its expressed maturity, which
together with the principal amount of any such other Indebtedness so caused to
be accelerated, aggregates an amount which is equal to or greater than 5% of the
Company's Consolidated Tangible Net Worth at any one point in time and such
default shall not have been cured or waived and such acceleration shall not have
been rescinded or annulled; or
(7) the entry of a decree or order by a court having
jurisdiction in the premises and adjudging the Company or either of the Banks a
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, adjustment, arrangement, composition of or similar relief for
the Company or either of the Banks under the Federal Bankruptcy Act, or any
other similar applicable law of any governmental unit, domestic or foreign, and
such decree or order shall have continued undischarged or unstayed for a period
of 60 consecutive days; or a decree or order or other decision of a court or
agency or supervisory authority having jurisdiction in the premises for the
appointment of the FDIC or any other Person to act as a receiver or conservator
or liquidator or trustee or assignee in bankruptcy or insolvency of the Company,
either of the Banks or of a substantial part of any of their property, or for
the involuntary winding up or liquidation of any of their affairs, shall have
been entered and such decree or order shall have remained in force undischarged
and unstayed for a period of 60 consecutive days; or, under the provisions of
any insolvency, bankruptcy, or other law for the relief or aid of creditors or
depositors, any court, or agency or supervisory authority having jurisdiction in
the premises shall assume custody or control of the Company, either of the Banks
or of a substantial part of any of their property, and such custody and control
shall not be terminated or stayed within 60 days from the date of assumption of
such custody or control; or
(8) the institution of proceedings by the Company or either of
the Banks to be adjudicated bankrupt or insolvent, or the consent by any one of
them to the institution of a bankruptcy or insolvency proceeding against it, or
the filing by any one of them of a petition or answer or consent seeking
reorganization, adjustment, arrangement, composition, appointment of a receiver
or conservator or similar relief under the Federal Bankruptcy Act, or any other
similar applicable law of any governmental unit, domestic or foreign, or the
consent to the filing of any such petition or the consent to the appointment of
a receiver or conservator or liquidator or trustee or assignee or sequestrator
(or similar official) in insolvency of the Company, either of the Banks or of a
substantial part of any of their property, or making by any of them of an
assignment for the benefit of creditors, or the admission by any of them in
writing of their inability to pay their debts generally as they become due, or
voluntarily suspending transaction of their business (other than in connection
with a labor dispute), or any corporate action taken by the Company or either of
the Banks in furtherance of any of the aforesaid purposes; or
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(9) one or more final judgments, judicial decrees or orders by
a court having jurisdiction in the premises for the payment of an amount of
money which, individually or in the aggregate, is equal to or greater than 5% of
the Company's Consolidated Tangible Net Worth has been rendered against the
Company or any of its Subsidiaries and any such judgment, decree or order has
continued unsatisfied for a period of 60 consecutive days without a stay of
execution of such judgment, decree or order; or
(10) failure by either of the Banks to comply with any of
their respective Regulatory Capital Requirements; provided, that an Event of
Default under this paragraph (10) shall not be deemed to have occurred (a)
during the 45 day period following either of the Bank's failure to comply with
any of their respective Regulatory Capital Requirements, if within such 45 day
period, such Bank files a capital plan with the OTS, (b) during the 60 day
period following the initial submission of a capital plan to the OTS by such
Bank (or, if the OTS notifies such Bank in writing that it needs a longer period
of time to determine whether to approve such capital plan, such longer period as
is so specified by the OTS), unless prior to such date the OTS shall have
notified the Bank of its determination not to approve such capital plan, or (c)
during the period that the Bank is operating in material compliance with a
capital plan approved by the OTS; provided, further, that if such Bank meets the
minimum amount of capital required to meet each of the industry-wide regulatory
capital requirements pursuant to 12 U.S.C. Section 1464(t) and 12 C.F.R. Part
567 (and any amendment to either thereof) or any successor law or regulation,
then notwithstanding such Bank's failure to meet an individual minimum capital
requirement pursuant to 12 U.S.C. Section 1464(s) and 12.C.F.R. Section 567.3
(and any amendment to either thereof) or any successor law or regulation, no
Event of Default shall have occurred pursuant to this paragraph (10) unless
written notice thereof shall have been given (x) to the Company by the Trustee
or (y) to the Company and the Trustee by the Holders of 25% in aggregate
principal amount of the Outstanding Notes.
Section 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 5.01(7) or (8)) occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in principal amount of
the Notes Outstanding may declare the principal of all the Notes to be due and
payable immediately, by a notice in writing to the Company, and to the Trustee
if given by Noteholders, and upon any such declaration such principal and any
accrued interest shall become immediately due and payable. If an Event of
Default specified in Section 5.01(7) or (8) occurs, the principal of and any
accrued interest on the Notes then Outstanding shall ipso facto become
immediately due and payable without any declaration or other Act on the part of
the Trustee or any Holder.
At any time after such a declaration of acceleration has been
made but before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in principal amount of the Notes Outstanding, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if
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(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all
Notes,
(B) the principal of and premium, if any, on any
Notes which have become due, otherwise than by such declaration of acceleration,
and, to the extent that payment of such interest is lawful, interest thereon at
the rate borne by the Notes,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by the Notes, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Notes which have become due solely by such acceleration, have been
cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
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Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of the principal of or
premium, if any, on any Note at the Maturity thereof or, with respect to any
Note required to have been purchased pursuant to an Offer to Purchase made by
the Company, at the Change of Control Purchase Date, or
(2) default is made in the payment of any installment of
interest on any Note when such interest becomes due and payable and such default
continues for a period of 30 days,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Notes, the whole amount then due and payable on
such Notes for principal, premium, if any, and interest, with interest upon the
overdue principal and premium, if any, and, to the extent that payment of such
interest shall be legally enforceable, upon overdue installments of interest, at
the rate borne by the Notes; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amount forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the Notes,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Noteholders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, conservatorship,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or relative to
any other obligor upon the Notes or the property of the Company or of such other
obligor or their creditors, irrespective of whether the principal of the Notes
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of
principal, premium, if any, and interest owing and unpaid in respect of the
Notes and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee, including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and of the Noteholders allowed in such judicial
proceeding, and
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(2) to collect and receive any moneys or securities or other
property payable or deliverable upon the conversion or exchange of the Notes or
upon any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Noteholder
to make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Noteholders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Noteholder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Noteholder in any such
proceeding.
Section 5.05. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the
Notes may be prosecuted and enforced by the Trustee without the possession of
any of the Notes or the production thereof in any proceeding relating thereto,
and any such 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 the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Notes in respect of which such judgment
has been recovered.
Section 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
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 on account of principal,
premium, if any, or interest, upon presentation of the Notes and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.07;
SECOND: In case the principal or premium, if any, of the Notes
shall not have become due, to the payment of interest on the Notes, in the order
of the maturity of the installments of such interest, with interest, to the
extent that such interest has been collected by the Trustee, upon the overdue
installments of interest at the rate borne by the Notes, such payments to be
made ratably to the persons entitled thereto, without discrimination or
preference;
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THIRD: In case the principal or premium, if any, of the Notes
shall have become due, by declaration or otherwise, to the payment of the whole
amount then owing and unpaid upon the Notes for principal and interest, with
interest on the overdue principal and, to the extent that such interest has been
collected by the Trustee, upon overdue installments of interest at the rate
borne by the Notes; and in case such monies shall be insufficient to pay in full
the whole amount so due and unpaid upon the Notes, then to the payment of such
principal and interest, without preference or priority of principal over
interest, or of interest over principal, or of any installment of interest over
any other installment of interest, or of any Note over any other Note, ratably
to the aggregate of such principal and accrued and unpaid interest; and
FOURTH: The remainder, if any, shall be paid to the Company,
its successors or assigns, or as a court of competent jurisdiction may direct.
Section 5.07 Limitation on Suits.
No Holder of any Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal
amount of the outstanding Notes shall have made a written request to the Trustee
to institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Notes;
it being understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any other
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all Holders.
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Section 5.08. Unconditional Right of Noteholders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and premium, if any, and, subject to Section
3.07, interest on such Note on the respective Stated Maturities expressed in
such Note (or, in the case of an Offer to Purchase made by the Company and
required to be accepted as to such Note, on the Change of Control Purchase Date)
and to institute suit for the enforcement of any such payment, and such right
shall not be impaired or affected without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies.
If the Trustee or any Noteholder has instituted any proceeding
to enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Noteholder, then and in every such case the Company, the
Trustee and the Noteholders shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the
Noteholders shall continue as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph
of Section 3.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Noteholders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Note to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Noteholders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Noteholders,
as the case may be.
Section 5.12. Control by Noteholders.
The Holders of not less than a majority in principal amount of
the Outstanding Notes shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, provided that
42
(1) such direction shall not, as determined by the Trustee in
good faith by a Responsible Officer or Officers of the Trustee, be in conflict
with any rule of law or with this Indenture or expose the Trustee to personal
liability or be unjustly prejudicial to the Holders not joining in any such
direction, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
(3) subject to the provisions of Section 6.01, the Trustee
shall have the right to decline to follow any such direction if the Trustee in
good faith shall determine that the action so directed would involve the Trustee
in personal liability or would be unduly prejudicial to Holders not joining in
such direction.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Notes may on behalf of the Holders of all the Notes waive any
past default hereunder and its consequences, except a default
(1) in the payment of the principal of, premium, if any, or
interest on any Note (including any Note which is required to have been
purchased pursuant to an Offer to Purchase which has been made by the Company),
or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Note affected.
Upon such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Note by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the 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 litigant; but the
provisions of this Section 5.14 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Noteholder, or group of Noteholders,
holding in the aggregate more than 10% in principal amount of the Outstanding
Notes, or to any suit instituted by any Noteholder for the enforcement of the
payment of the principal of or premium, if any, or interest on any Note (or, in
the case of any Offer to Purchase which has been made by the Company, on or
after the Change of Control Purchase Date).
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Section 5.15. Waiver of Stay or Extension Laws.
The Company covenants, to the extent that it may lawfully do
so, that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company, to the extent
that it may lawfully do so, hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 6.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which 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.
(b) In case an Event of Default has occurred and is
continuing, 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 individual would exercise or use under the circumstances
in the conduct of his or her own affairs.
(c) 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
(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section 6.01;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
44
(3) 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 a majority in principal amount of the
Outstanding Notes 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 hereunder; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
Section 6.02. Notice of Defaults.
The Trustee shall transmit by mail to all Noteholders, as
their names and addresses appear in the Note Register, notice of such defaults
hereunder known to a Responsible Officer of the Trustee, as and to the extent
provided by the Trust Indenture Act, 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 of, premium, if any, or interest on any Note, 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 directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Noteholders; and provided,
further, that in the case of any default of the character specified in Section
5.01(5), no such notice to Noteholders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section 6.02, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default.
Section 6.03. Certain Rights of Trustee.
Except as otherwise provided in Section 6.01:
(a) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
note or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
45
(d) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Noteholders pursuant to this Indenture, unless such
Noteholders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
note or other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney at the sole cost of the
Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation;
(g) 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; and
(h) the Trustee shall not be charged with knowledge of any
Event of Default with respect to the Notes unless either (1) a Responsible
Officer of the Trustee assigned to the Corporate Trust Department of the Trustee
(or any successor division or department of the Trustee) shall have actual
knowledge of the Event of Default or (2) written notice of such Event of Default
shall have been given to a Responsible Officer of the Trustee by the Company or
any other obligor on the Notes or by any Noteholder and such notice references
the Notes and this Indenture.
(i) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
Section 6.04. Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Notes, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Notes and
perform its obligations hereunder and that the statements made by it in any
Statement of Eligibility and Qualification on Form T-1 supplied to the Company
are true and accurate, subject to the qualifications set forth therein. The
Trustee shall not be accountable for the use or application by the Company of
the Notes or the proceeds thereof.
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Section 6.05. May Hold Notes.
The Trustee, any Paying Agent, the Note Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Notes and, subject to Sections 6.08 and 6.13, if operative,
may otherwise deal with the Company with the same rights it would have if it
were not a Trustee, Paying Agent, Note Registrar or such other agent.
Section 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder 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 as otherwise agreed in writing with the Company.
Section 6.07. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee agree from time to time in writing,
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee or any predecessor
Trustee and their agents for, and to hold them harmless against, any and all
loss, damage, claims, liability or expense, including taxes (other than taxes
based upon, measured by or determined by the income of the Trustee), arising out
of or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder, except to the extent that such loss, damage, claim,
liability or expense is due to its own negligence or bad faith.
As security for the performance of the obligations of the
Company under this Section 6.07, the Trustee shall have a lien prior to the
Notes upon all property and funds held or collected by the Trustee or any
predecessor Trustee as such, except funds expressly designated and held in trust
for the payment of principal of, premium, if any, or interest on Notes. The
Trustee's right to receive payment of any amounts due under this Section 6.07
shall not be subordinate to any other liability or indebtedness of the Company.
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When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(7) or (8), the
expenses and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy or
insolvency or similar law.
The Company's obligations under this Section 6.07 and any lien
arising hereunder shall survive the resignation or removal of any Trustee, the
discharge of the Company's obligations pursuant to Article Four of this
Indenture and/or the termination of this Indenture.
Section 6.08. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a corporation organized and doing business under the laws of the United States
or of any state, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by federal or state authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section 6.09, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
6.09, it shall resign in the manner and with the effect hereinafter specified in
this Article Six.
Section 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 6.11.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If any instrument of acceptance by a successor
trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition, at the
expense of the Company, any court of competent jurisdiction for the appointment
of a successor Trustee.
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(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Notes, delivered to
the Trustee and to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of removal, the Trustee being removed may petition, at the
expense of the Company, any court of competent jurisdiction for the appointment
of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 6.08 after written request therefor by the
Company or any Noteholder who has been a bona fide
Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible
under Section 6.09 and shall fail to resign after
written request therefor by the Company or by any
such Noteholder, or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent
or a receiver or conservator of the Trustee or of its
property shall be appointed 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, (i) the Company by a Board Resolution may remove the
Trustee or (ii) subject to Section 5.14, any Noteholder who has been a bona fide
Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
outstanding Notes delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Noteholders and accepted appointment in the manner
hereinafter provided, any Noteholder who has been a bona fide Holder of a Note
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event within 30 days of the date thereof by first-class
mail, postage prepaid, to the Holders of Notes as their names and addresses
appear in the Note Register. Each notice shall include the name of the successor
Trustee and the address of its principal corporate trust office.
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Section 6.11. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder 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 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, subject nevertheless to its lien,
if any, provided for in Section 6.07. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
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 Six.
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
conveyed or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article Six, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Notes 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 Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
Section 6.13. Preferential Collection of Claims Against the Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Notes), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
Section 6.14 Trustee's Application for Instructions from the Company.
Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three Business Days after the date any officer of the Company actually receives
such application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
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ARTICLE SEVEN
Noteholders' Lists and Reporting by Trustee and Company
Section 7.01. Company to Furnish Trustee Names and Addresses of Noteholders.
The Company will furnish or cause to be furnished to the
Trustee (a) semi-annually, not more than three days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of such Regular Record Date, (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 during such time as the Trustee is the Note Registrar, no such
list shall be required to be furnished.
Section 7.02. Preservation of Information; Communications to Noteholders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 7.01 and the names
and addresses of Holders received by the Trustee in its capacity as Note
Registrar (if so acting). The Trustee may destroy any list furnished to it as
provided in Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Notes, and the
corresponding rights and duties of the Trustee, shall be as provided in the
Trust Indenture Act.
(c) Every Holder of Notes, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of information as to the names and addresses of the Holders in
accordance with the Trust Indenture Act.
(d) Unless the Trustee deems it inappropriate under the
circumstances, the Trustee will promptly provide the Company with copies of any
forms of notice or other communication sent to Holders.
Section 7.03. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto. To the extent that any such report is required by the Trust
Indenture Act with respect to any 12-month period, such report shall cover the
12-month period ending September 15 and shall be transmitted by the next
succeeding September 15.
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(b) A copy of each such report shall, at the time of such
transmission to Noteholders, be filed by the Trustee with the Commission, any
stock exchange upon which the Notes are listed, and also with the Company. The
Company will notify the Trustee when the Notes are listed on, or delisted from,
any stock exchange.
Section 7.04. Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission. Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 7.05 Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Notes as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.01. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not, in a single transaction or a series of
transactions, consolidate or merge with or into or transfer, sell, lease or
convey all or substantially all of its assets to another Person unless:
(1) either the Company shall be the entity surviving such
merger or consolidation or the corporation formed by or surviving such
consolidation or merger, or the Person to which such transfer, sale,
lease or conveyance shall have been made, shall be a corporation duly
organized and existing under the laws of the United States, any state
thereof or the District of Columbia and shall unconditionally expressly
assume by a supplemental indenture hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, all the obligations
of the Company under the Notes and the Indenture; and
52
(2) immediately before and immediately after giving effect to
the transaction or series of transactions, no Default or Event of
Default shall have occurred and be continuing; and
(3) immediately after giving effect to the transaction or
series of transactions, the Company or the surviving entity, as
applicable, and their respective banking and thrift subsidiaries, as
applicable, shall be in compliance with all applicable regulatory
capital requirements; and
(4) immediately after giving effect to the transaction or
series of transactions, the Company or the surviving entity, as
applicable, could incur at least $1.00 of additional Indebtedness
without violating Section 10.11(b) hereof; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, business combination, transfer, sale, lease or
conveyance and such supplemental indenture complies with this Article
and that all conditions precedent herein relating to such transaction
have been complied with.
Section 8.02. Successor Entity Substituted.
Upon any consolidation, merger of the Company into another
entity, business combination or transfer, conveyance, sale or lease of all or
substantially all of the properties and assets of the Company as an entirety in
accordance with Section 8.01, the successor entity formed by such consolidation
or business combination or into which the Company is merged or to which such
transfer, conveyance, sale or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor entity had been named as the Company
herein.
ARTICLE NINE
Supplemental Indentures
Section 9.01. Supplemental Indentures Without Notice to or Consent of
Noteholders.
Without notice to or the consent of the Holders of any Notes,
the Company, when authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to the extent permitted under Article Eight hereof, to
evidence the succession of another entity to the Company, and the
assumption by any such successor of the covenants of the Company herein
and in the Notes; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
53
(3) to secure the Notes or to add a guarantor; or
(4) to comply with any requirements of the Commission in order
to effect and maintain the qualification of this Indenture under the
Trust Indenture Act; or
(5) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture, provided such
action pursuant to this clause (5) shall not adversely affect the
interests of the Holders in any material respect.
Section 9.02. Supplemental Indentures With Consent of Noteholders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Notes, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal amount
thereof or the interest thereon or change any Place of Payment where,
or the coin or currency in which, any Note or the interest thereon is
payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the
case of an Offer to Purchase which has been made, on or after the
Change of Control Purchase Date), or
(2) reduce the percentage in principal amount of the
Outstanding Notes, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences provided
for in this Indenture, or
(3) modify any of the provisions of this Section 9.02, Section
5.13 or Section 10.21, except to increase any such percentage of
Holders whose consent is required under any such Section or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Note
affected thereby.
It shall not be necessary for any Act of Noteholders under this Section 9.02 to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
54
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by and Holder be
cancelled and of no further effect.
Section 9.03. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article Nine or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and, subject to Section 6.01, shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture and that all conditions precedent to the execution and delivery of
such supplemental indenture by the Company and the Trustee have been complied
with. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article Nine, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Notes theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 9.05. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the Board
of Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
Section 9.06. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform with the requirements of the Trust Indenture Act as then in effect
if this Indenture shall then be qualified under the Trust Indenture Act.
55
ARTICLE TEN
Covenants
Section 10.01. Payment of Principal, Interest and Premium.
The Company will duly and punctually pay, or cause to be paid,
the principal of and premium, if any, and interest on the Notes in accordance
with the terms of the Notes and this Indenture and will take any and all action
which may enable it to lawfully pay the principal of and premium, if any, and
interest on any of the Notes when the same shall become due, whether at the
Maturity thereof, by declaration as authorized by this Indenture, or otherwise.
Section 10.02. Maintenance of Office or Agency.
The Company will maintain an office or agency in each Place of
Payment where Notes may be presented or surrendered for payment, where Notes may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and of any change in the location, of such office or agency. If at any
time the Company shall fail to maintain such office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the principal corporate trust
office of the Trustee, and the Company hereby appoints the Trustee its agent to
receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for such purposes. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Section 10.03. Money for Note Payments to be Held In Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of and premium, if any, or
interest on any of the Notes, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal and premium, if
any, or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and will promptly notify the
Trustee in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it
will, on or prior to each due date of the principal of, premium, if any, of or
interest on, any Notes, deposit with a Paying Agent a sum sufficient to pay the
principal and premium, if any, 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 Paying Agent will promptly
notify the Trustee in writing of its action or failure so to act.
56
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will
(1) hold all sums held by it for the payment of principal of,
premium, if any, or interest on the Notes in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the
Company, or any other obligor upon the Notes, in the making of any such
payment of principal and premium, if any, or interest; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by Paying Agent to the Trustee such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of and
premium, if any, or interest on any Note and remaining unclaimed for more than
two years after such principal and premium, if any, or interest has become due
and payable shall, subject to applicable law, be paid to the Company on Company
Request, or, if then held by the Company, shall be discharged from such trust;
and the Holder of such Note shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company, cause to be mailed or published once, in an
Authorized Newspaper in each Place of Payment or mail to each such Holder or
both, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication
or mailing, an unclaimed balance of such money then remaining will be repaid to
the Company.
Section 10.04. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, and will cause each Subsidiary to pay or discharge or cause to be
paid or discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the Company or such
Subsidiary or upon the income, profits or property of the Company or such
Subsidiary and (2) all lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon the property of the Company or such
Subsidiary; provided, however, that the Company or such Subsidiary shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings or any such tax, assessment,
charge or claim if not disadvantageous in any material respect to the
Noteholders.
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Section 10.05. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect the
corporate existence, rights (charter and statutory) and franchises of the
Company and its Subsidiaries, and will comply in all material respects with all
statutes, rules, regulations and orders of and restrictions imposed by
governmental and administrative authorities and agencies applicable to the
Company and its Subsidiaries, a failure to comply with which would have a
material adverse effect on the Company and its Subsidiaries considered as a
single enterprise; provided, however, that the Company shall not be required to
preserve any right or franchise of the Company or its Subsidiaries if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business the Company or its Subsidiaries and the loss thereof
is not disadvantageous in any material respect to the Noteholders.
Section 10.06. Maintenance of Depository Institution Subsidiary.
Subject to Section 8.01, the Company shall maintain at all
times as a Wholly-Owned Subsidiary an entity that is a bank or thrift or
substantially similar institution subject to regulation by federal or state
authorities and do all things necessary to ensure that savings accounts of the
Banks or any such other institution are insured by the FDIC or any successor
organization up to the maximum amount permitted by the Federal Deposit Insurance
Act and regulations thereunder or any succeeding federal law hereinafter
enacted.
Section 10.07. Maintenance of Properties.
The Company will:
(a) cause all its properties and the properties of its
Subsidiaries used or useful in the conduct of the business of the Company and
its Subsidiaries to be maintained and kept in good condition, repair and working
order and supplied with all necessary facilities and equipment and will cause to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided; however, that nothing in this
subsection shall prevent the Company or a Subsidiary from discontinuing the
operation and maintenance of any of its properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business and not
disadvantageous in any material respect to the Holders; and
(b) take all appropriate steps to maintain the licenses and
permits used in the conduct of the business of the Company and its subsidiaries;
provided, however, that nothing in this subsection shall prevent the Company or
a Subsidiary from selling, abandoning or otherwise disposing of any such license
or permit if such sale, abandonment or disposition is, in the judgment of the
Company, desirable in the conduct of its business and not disadvantageous in any
material respect to the Holders.
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Section 10.08. Insurance.
The Company will at all times maintain and will cause each of
its Subsidiaries to maintain (either in the name of the Company or in such
Subsidiary's own name) with financially sound and reputable insurers, insurance
on all its properties in such amounts as management of the Company reasonably
determines is appropriate under the circumstances.
Section 10.09. Books and Records.
The Company shall, and shall cause each Subsidiary to, at all
times keep proper books of record and account in which proper entries shall be
made in accordance with generally accepted accounting principles and, to the
extent applicable, regulatory accounting principles.
Section 10.10. Statements as to Compliance.
(a) The Company will deliver to the Trustee, within 90 days
after the end of each fiscal year, a certificate signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company stating, as to each signer thereof, that
(1) a review of the activities of the Company during
such year and of performance under this Indenture has been made under
his or her supervision; and
(2) to the best of his or her knowledge, based on
such review, the Company has fulfilled all its obligations under this
Indenture throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known
to him or her and the nature and status thereof.
(b) The Company shall deliver to the Trustee, as soon as
possible and in any event within 5 days after the Company becomes aware or
should reasonably become aware of the occurrence of a Default or an Event of
Default, an Officers' Certificate setting forth the details of such Default or
Event of Default and the action which the Company proposes to take with respect
thereto.
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Section 10.11. Limitations on Indebtedness.
(a) The Company will not create, incur, issue, assume,
guarantee or otherwise in any manner become directly or indirectly liable for or
with respect to, or otherwise permit to exist any Indebtedness, except:
(i) Indebtedness represented by the Notes;
(ii) Junior Indebtedness with a Stated Maturity of principal
(or any required repurchase, redemption, defeasance or sinking fund
payments) which is after the final Stated Maturity of the Notes;
(iii) Indebtedness the proceeds of which are immediately
applied to redeem or repurchase Notes, in an amount not to exceed the
principal amount of the Notes so redeemed or repurchased, provided
that, if the Notes are redeemed or repurchased only in part, such
refunding or refinancing Indebtedness has a Stated Maturity of
principal (or any required repurchase, redemption, defeasance or
sinking fund payments) which is after the final Stated Maturity of the
Notes; and
(iv) Indebtedness specified in paragraph (b) of the definition
of "Permitted Payment."
(b) Notwithstanding the provisions of Section 10.11(a), the
Company will not create, incur, assume, guarantee or otherwise in any manner
become directly or indirectly liable for or with respect to, or otherwise permit
to exist, any Indebtedness (including any Indebtedness assumed in connection
with the acquisition of assets from another Person or as a result of the merger
of any Person with or into the Company) unless at the time of such event the
principal amount of total Indebtedness of the Company would not exceed 100% of
the Company's Consolidated Tangible Net Worth, provided that for purposes of
this requirement, Indebtedness shall be net of any fund or interest reserve
account (including in the case of the Notes the Interest Reserve Account) which
has been established to fund the payment of principal and/or interest on
Indebtedness.
Section 10.12. Limitations on Restricted Payments.
The Company will not, and will not permit any Subsidiary to,
directly or indirectly, make any Restricted Payment if, at the time of such
Restricted Payment or after giving effect thereto,
(a) a Default or Event of Default shall have occurred and be
continuing or would occur as a result thereof; or
(b) the Company would fail to maintain sufficient Liquid
Assets to comply with the terms of the covenant set forth in Section
10.17 hereof; or
(c) either of the Banks would fail to meet any of their
respective applicable capital requirements under 12 C.F.R. Part 565 (or
any other successor provision) which are necessary to enable such Bank
to qualify as an "adequately capitalized" institution under such
regulations; or
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(d) the aggregate amount of all Restricted Payments (the
amount of such payments, if other than in cash, having been determined
in good faith by the Board of Directors, whose determination shall be
conclusive and evidenced by a Board Resolution filed with the Trustee)
declared and made after the Issue Date would exceed the sum of
(i) 25% of the aggregate Consolidated Net Income
(or, if such Consolidated Net Income is a deficit, 100% of
such deficit) of the Company accrued on a cumulative basis
during the period beginning on the first day of the fiscal
quarter during which the Issue Date occurred and ending on the
last day of the Company's last fiscal quarter ending prior to
the date of such proposed Restricted Payment, plus
(ii) the aggregate Net Cash Proceeds received by
the Company as capital contributions (other than from a
Subsidiary) after the Issue Date, plus
(iii) the aggregate Net Cash Proceeds and the Fair
Market Value of property not constituting Net Cash Proceeds
received by the Company from the issuance or sale (other than
to a Subsidiary) of Qualified Capital Stock after the Issue
Date (except, in each case, to the extent such proceeds are
used to purchase, redeem, defease, make sinking fund payments
on or otherwise acquire or retire for value Junior
Indebtedness as set forth in clause (a) of the definition of
Permitted Payment herein), plus
(iv) 100% of the amount of any Indebtedness of the
Company or a Subsidiary that is converted into or exchanged
for Qualified Capital Stock of the Company after the Issue
Date;
provided, however, that the foregoing provisions will not prevent (w) the
payment of a dividend within 60 days after the date of its declaration if at the
date of declaration such payment was permitted by the foregoing provisions, (x)
any Permitted Payment, (y) the redemption of all of the shares of Capital Stock
of the Company which are issued and outstanding immediately prior to the date of
this Indenture, or (z) the prepayment of a promissory note payable to Xxxxxx
Xxxxxxx Read outstanding as of the date of this Indenture.
Section 10.13. Limitations on Dividends and Other Payment Restrictions Affecting
Subsidiaries.
The Company will not, and will not permit any of its
Subsidiaries to, create, assume or otherwise cause or suffer to exist or to
become effective any consensual encumbrance or restriction on the ability of any
such Subsidiary to:
(a) pay any dividends or make any other distribution on its
Capital Stock;
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(b) make payments in respect of any Indebtedness owed to the
Company or any other Subsidiary; or
(c) make loans or advances to the Company or any Subsidiary or
to guarantee Indebtedness of the Company or any other Subsidiary;
other than, in the case of (a), (b) and (c),
(1) restrictions imposed by applicable laws and
regulations;
(2) restrictions existing under agreements in effect
on the date of this Indenture;
(3) consensual encumbrances or restrictions binding
upon any Person at the time such Person becomes a Subsidiary of the Company so
long as such encumbrances or restrictions are not created, incurred or assumed
in contemplation of such Person becoming a Subsidiary;
(4) restrictions on the transfer of assets which are
subject to Liens;
(5) restrictions existing under agreements evidencing
Indebtedness which are incurred after the date of this Indenture in accordance
with Section 10.11 hereof, provided that the terms and conditions of any such
restrictions are no more restrictive than those contained in this Indenture; and
(6) restrictions existing under any agreement which
refinances or replaces any of the agreements containing the restrictions in
clauses (2), (3) and (5); provided that the terms and conditions of any such
restrictions are not less favorable to the Holders than those under the
agreement evidencing or relating to the Indebtedness refinanced.
Section 10.14. Restrictions on Issuance and Sale or Disposition of Capital Stock
of Subsidiaries.
The Company (a) will not permit any Subsidiary to issue or
sell any shares of its Capital Stock (other than to the Company or a Wholly
Owned Subsidiary) and (b) except pursuant to existing agreements, options or
option plans, will not permit any Person to own any shares of Capital Stock of
any Subsidiary.
Section 10.15. Limitations on Transactions with Affiliates.
The Company shall not, and shall not permit any Subsidiary of
the Company to, directly or indirectly enter into any transaction (including,
without limitation, the purchase, sale, lease or exchange of property, the
rendering of any service or the making of any loan or advance, but excluding
transactions between the Company and Wholly Owned Subsidiaries of the Company)
with any Affiliate, unless
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(i) such transaction is on terms no less favorable to the
Company or such Subsidiary than those that could be obtained in a
comparable arm's length transaction with an entity that is not an
Affiliate,
(ii) with respect to a transaction or series of transactions
involving aggregate value in excess of $500,000, the Company delivers
an Officers' Certificate to the Trustee certifying that such
transaction or series of transactions complies with clause (i) above
and has been approved by a majority of the Board of Directors of the
Company and evidenced by a Board Resolution and
(iii) with respect to a transaction or series of transactions
involving aggregate value in excess of $2,000,000, the Company delivers
to the Trustee an opinion of a nationally recognized investment banking
firm stating that the transaction or series of transactions is fair
(from a financial point of view) to the Company.
The limitations set forth in this paragraph shall not apply to
(i) transactions entered into pursuant to any agreement already in effect on the
date of this Indenture, (ii) any employment agreements, stock option, employee
benefit, indemnification, compensation, business expense reimbursement or other
employment-related agreement, arrangement or plan entered into by the Company or
any of its Subsidiaries either (A) in the ordinary course of business and
consistent with the past practice of the Company or such Subsidiary or (B) which
agreement, arrangement or plan was adopted by the Board of Directors of the
Company or such Subsidiary, as the case may be, (iii) residential mortgage,
credit card and other consumer loans to an Affiliate who is an officer, director
or employee of the Company or any of its Subsidiaries and which comply with the
applicable provisions of 12 U.S.C. ss. 1468(b) and any rules and regulations of
the OTS thereunder, (iv) any Restricted Payments, (v) any issuance of Capital
Stock to Xxxxxx X. Xxxxxxxx or Xxx X. Xxxxxx pursuant to the terms of a letter
agreement among the Company and Messrs. Xxxxxxxx and Norton which provides for,
among other things, the sale of Green Country Banking Corporation; or (vi) any
transaction or series of transactions in which the total amount involved does
not exceed $250,000.
Section 10.16. Limitations on Liens and Guarantees.
(a) The Company shall not create, assume, incur or suffer to
exist any Lien upon (i) the Capital Stock of the Banks or (ii) any of the
Company's property or assets (other than the Capital Stock of the Banks) now
owned, or acquired after the date of this Indenture, or any income or profits
from any such property or assets, as security for Indebtedness of the Company
which may be incurred pursuant to Section 10.11 and having a contractual time to
maturity greater than one year (other than the Notes) without, in the case of
either (i) or (ii), effectively providing that the Notes will be equally and
ratably secured with (or prior to) such Indebtedness; provided that if such
Indebtedness is Junior Indebtedness, any such security interest with respect to
such Junior Indebtedness shall be subordinated to the security interest with
respect to the Notes to the same extent as such Junior Indebtedness is
subordinated to the Notes.
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(b) The Company will not permit any Subsidiary of the Company,
directly or indirectly, to guarantee or assume, or subject any of its assets to
a Lien to secure, any Indebtedness of the Company which may be incurred pursuant
to Section 10.11 (other than the Notes) unless (i) such Subsidiary
simultaneously executes and delivers a supplemental indenture to this Indenture
providing for a guarantee of, or pledge of assets to secure, the Notes by such
Subsidiary on terms at least as favorable to the Holders of the Notes as such
guarantee or security interest in such assets is to the holders of such
Indebtedness, except that in the event of a guarantee or security interest in
such assets with respect to Junior Indebtedness, any such guarantee or security
interest in such assets with respect to such Junior Indebtedness shall be
subordinated to such Subsidiary's guarantee or security interest in such assets
with respect to the Notes to the same extent as such Junior Indebtedness is
subordinated to the Notes and (ii) such Subsidiary waives, and agrees in writing
that it will not in any manner whatsoever claim, or take the benefit or
advantage of, any rights of reimbursement, indemnity or subrogation or any other
rights against the Company or any other Subsidiary of the Company as a result of
any payment by such Subsidiary under its guarantees.
Section 10.17. Liquidity Maintenance.
The Company shall, at all times when Notes are not rated in an
investment grade category by one or more nationally recognized statistical
rating organizations, maintain Liquid Assets with a value equal to at least 100%
of the required interest payments due on the Notes on the next succeeding
semi-annual Interest Payment Date. Liquid Assets of a Subsidiary may be included
in such calculation only to the extent that such Liquid Assets may at such time
be distributed to the Company without restriction or notice to any Person. Such
Liquid Assets shall not be the subject of any pledge, Lien, encumbrance or
charge of any kind and shall not be used as collateral or security for
Indebtedness for borrowed money or otherwise of the Company or its Subsidiaries
nor may such Liquid Assets be used as reserves for any self-insurance maintained
by the Company.
Section 10.18. Interest Reserve Account.
(a) The Company agrees to maintain a segregated deposit
account and segregated Permitted Investments (the account or accounts pursuant
to which such deposit account and Permitted Investments are maintained are
collectively referred to herein as "Interest Reserve Account") in a bank or
trust company, which may be the Trustee, that (x) is a member of the Federal
Reserve System having combined capital and surplus and undivided profits of not
less than $50,000,000, (y) is not an Affiliate of the Company or any of its
Subsidiaries and (z) is in compliance with its applicable minimum regulatory
capital requirements, and to fund the Interest Reserve Account as set forth in
Section 10.18(b). Any funds or other assets in the Interest Reserve Account from
time to time shall not be commingled with any other funds or assets of the
Company or any of the Company's Subsidiaries or Affiliates, provided, however,
that if on any Interest Payment Date the amount of funds and the Fair Market
Value of any Permitted Investments in the Interest Reserve Account shall exceed
the amount required to be maintained therein in accordance with Section
10.18(b), the Company shall be entitled to withdraw all or any portion of such
excess in accordance with an Officer's Certificate delivered pursuant to Section
10.18(d) hereof.
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(b) The Company agrees to carry in the Interest Reserve
Account an aggregate amount of cash and Fair Market Value of Permitted
Investments (determined by the Company not less frequently than on each Interest
Payment Date) sufficient to pay at all times during the period commencing on the
date of issuance of the Notes through the next two succeeding Interest Payment
Dates. The Company agrees to (i) make such deposits as are required by this
Section 10.18(b), (ii) maintain complete and correct books and records in
reasonable detail with respect to the valuation of the Interest Reserve Account
and (iii) use, to the extent necessary, funds and Permitted Investments in the
Interest Reserve Account to pay interest and/or principal due from time to time
on the Notes or as otherwise required pursuant to the Security Agreement.
(c) At all times when there are amounts in the Interest
Reserve Account, the Company will maintain arrangements with respect to the
creation, maintenance and perfection of a first priority security interest in
favor of the Holders of the Notes in the Interest Reserve Account, including,
without limitation, the execution and delivery of the Security Agreement.
(d) Within 30 days after each Interest Payment Date, the
Company will furnish to the Trustee an Officers' Certificate stating the amount
of cash on deposit and the Fair Market Value of Permitted Investments in the
Interest Reserve Account as of such Interest Payment Date (after taking into
account any payments made therefrom on such Interest Payment Date or any
withdrawals by the Company of any excess amount as permitted under Section
10.18(a)).
Section 10.19. Offer to Purchase Upon a Change of Control.
Upon the occurrence of a Change of Control, the Company shall
be obligated to make an offer to purchase (an "Offer to Purchase"), and shall,
subject to the provisions described below, purchase, on a Business Day (the
"Change of Control Purchase Date") not more than 60 nor less than 30 days
following the occurrence of the Change of Control, all of the then outstanding
Notes at a purchase price (the "Change of Control Purchase Price") equal to 101%
of the principal amount thereof, plus accrued and unpaid interest, if any, to
(but excluding) the Change of Control Purchase Date. The Company shall, subject
to the provisions described below, be required to purchase all Notes properly
tendered in the Offer to Purchase and not withdrawn. Prior to the mailing of the
notice to Holders provided for below, the Company shall (i) offer to repay in
full all Indebtedness which by its terms requires repayment by the Company prior
to any repurchase by the Company of the Notes and repay the Indebtedness of each
lender who has accepted such offer or (ii) obtain the requisite consent under
such Indebtedness to permit the repurchase of the Notes as provided for under
this Section 10.19. The Company shall notify the Trustee in writing upon
satisfaction of the forgoing condition precedent. If a notice has been mailed
when such condition precedent has not been satisfied, the Company shall have no
obligation to (and shall not) effect the purchase of Notes until such time as
such condition precedent is satisfied. Failure to mail the notice on the date
specified below or to have satisfied the foregoing condition precedent by the
date that the Notice is required to be mailed shall in any event constitute a
covenant Default under clause (5) of Section 5.01.
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Notice of an Offer to Purchase shall be mailed by the Company
or the Trustee not later than the 30th day after the Change of Control to the
Holders of Notes at their last registered addresses with a copy to the Trustee
and the Paying Agent. If the Trustee is to mail the Notice of an Offer to
Purchase, the Trustee shall receive at least five days written notice prior to
the expiration of 30 days after the Change of Control Purchase Date. The Offer
to Purchase shall remain open from the time of mailing for at least 20 Business
Days and until 5:00 p.m., New York City time, on the Change of Control Purchase
Date. The notice, which shall govern the terms of the Offer to Purchase, shall
include such disclosures as are required by law and shall state:
(a) that a Change of Control has occurred and an
Offer to Purchase is being made, and that, although Holders
are not required to tender their Notes, all Notes that are
timely tendered will be accepted for payment;
(b) the purchase price (including the amount of
accrued interest, if any) for each Note and the Change of
Control Purchase Date, which will be no earlier than 30 days
nor later than 60 days from the date such notice is mailed;
(c) that any Note not tendered for payment will
continue to accrue interest in accordance with the terms
thereof;
(d) that any Note accepted for payment pursuant to
the Offer to Purchase will cease to accrue interest on and
after the Change of Control Purchase Date;
(e) the instructions that Holders must follow in
order to have such Holders' Notes repurchased (which shall
include an instruction that the Holder must complete the
Option of Holder to Elect Purchase);
(f) that Holders will be entitled to withdraw their
election not later than the close of business on the third
Business Day preceding the Change of Control Purchase Date and
the instructions that Holders must follow in order to withdraw
such election; and
(g) any other information necessary to enable Holders
to tender their Notes and to have such Notes repurchased.
On the Change of Control Purchase Date, the Company shall (i)
accept for payment Notes or portions thereof validly tendered pursuant to the
Offer to Purchase, (ii) deposit with the Paying Agent money, in immediately
available funds, sufficient to pay the purchase price of all Notes or portions
thereof so tendered and accepted and (iii) deliver to the Trustee all Notes so
accepted together with an Officers' Certificate stating the principal amount of
Notes tendered to and accepted for payment by the Company. The Paying Agent
shall promptly mail or deliver to the Holders of Notes so accepted payment in an
amount equal to the purchase price, and the Trustee shall promptly authenticate
and mail or deliver to such Holders a new Note equal in principal amount to any
unpurchased portion of the Note surrendered. The Notes not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company
will publicly announce the results of the Offer to Purchase on or as soon as
practicable after the Change of Control Purchase Date.
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If any Note accepted for payment is not so paid pursuant to
the provisions of this covenant, then, from the Change of Control Purchase Date
until the principal and interest on such Note is paid, the Company shall pay
interest on the unpaid principal and, to the extent permitted by law, on any
accrued but unpaid interest thereon, in each case, at the rate or rates
prescribed therefor in the Notes.
The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to an Offer
to Purchase.
Section 10.20. Payments for Consent.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is paid to all Holders
that provide such consent or so waive or agree to amend.
Section 10.21. Waiver of Certain Covenants.
Without limiting the rights of the Holders and the Company
with respect to waivers and amendments set forth in Sections 5.13 and 9.02, the
Company may omit in any particular instance to comply with any covenant or
condition set forth in Sections 10.04 through 10.20, if before or after the time
for such compliance the Holders of at least a majority in principal amount of
the Notes at the time Outstanding shall, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
ARTICLE ELEVEN
Defeasance and Covenant Defeasance
Section 11.01. Applicability of Article; Company's Option to Effect Defeasance
or Covenant Defeasance.
The Company may at its option by Board Resolution, at any
time, elect to have either Section 11.02 (if applicable) or Section 11.03 (if
applicable) applied to the Outstanding Notes upon compliance with the conditions
set forth below in this Article Eleven.
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Section 11.02. Defeasance and Discharge.
Upon the Company's exercise of the above option provided in
Section 11.01 applicable to this Section 11.02, the Company shall be deemed to
have been discharged from its obligations with respect to the Outstanding Notes
on and after the date the conditions precedent set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Notes and to have satisfied all its other
obligations under such Notes and this Indenture, insofar as such Notes are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following, which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of Outstanding Notes to receive, solely from the trust fund described in
Section 11.04, as more fully set forth in such Section, payments of the
principal of and premium, if any, and interest on such Notes when such payments
are due, (B) the Company's obligations with respect to such Notes under Sections
3.04, 3.05, 3.06, 10.02 and 10.03 and such obligations as shall be ancillary
thereto, (C) the rights, powers, trusts, duties, immunities and other provisions
in respect of the Trustee hereunder and (D) this Article Twelve. Subject to
compliance with this Article Twelve, the Company may exercise its option under
this Section 11.02 notwithstanding the prior exercise of its option under
Section 11.03 with respect to the Notes. Following a defeasance, payment of the
Notes may not be accelerated because of an Event of Default.
Section 11.03. Covenant Defeasance.
Upon the Company's exercise of the option provided in
Section 11.01 applicable to this Section 11.03, (i) the Company shall be
released from its obligations under Section 10.04, Sections 10.06 through 10.16,
inclusive (subject, in the case of Section 10.10, to any requirement of the
Trust Indenture Act), and Section 10.19 and clauses (2), (3) and (4) of Section
8.01, and (ii) the occurrence of an event specified in Sections 5.01(3) (with
respect to clauses (2), (3) or (4) of Section 8.01), 5.01(4), 5.01(5) (with
respect to any of Section 10.04, Sections 10.06 through 10.19, inclusive
(subject, in the case of Section 10.10, to any requirement of the Trust
Indenture Act), 5.01(6), 5.01(9) and 5.01(10) shall not be deemed to be an Event
of Default with respect to the Outstanding Notes on and after the date the
conditions set forth below are satisfied (hereinafter "covenant defeasance").
For this purpose, such covenant defeasance means that, with respect to the
Outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or Clause, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or Clause or by reason of any reference in
any such Section or Clause to any other provision herein or in any other
document, but the remainder of this Indenture and such Notes shall be unaffected
thereby.
Section 11.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent to
application of either Section 11.02 or Section 11.03 to the then Outstanding
Notes:
(1) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
such Notes, (A) money in United States Dollars in an amount, or (B)
U.S. Government Obligations which through the scheduled
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payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (C) a combination thereof,
sufficient, without reinvestment, in the opinion of a
nationally-recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee to pay and
discharge, the principal of and premium, if any, and interest on the
Outstanding Notes on the Stated Maturity of such principal, premium, if
any, or interest in accordance with the terms of this Indenture and of
the Notes. For this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the United States of
America for the payment of which its full faith and credit is pledged
or (y) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case, 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 U.S. Government Obligation or a specific payment of
principal of or interest on any such U.S. Government Obligation held by
such custodian for the account of the holder of such depository
receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific
payment of principal of or interest on the U.S. Government Obligation
evidenced by such depository receipt.
(2) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to the
Notes shall have occurred and be continuing (A) on the date of such
deposit and after giving effect thereto or (B) insofar as subsections
5.01(7) and (8) are concerned, at any time during the period ending on
the 123rd day after the date of such deposit or, if longer, ending on
the day following the expiration of the longest preference period
applicable to the Company in respect of such deposit (it being
understood that the condition in this Clause (B) shall not be deemed
satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A)
cause the Trustee for the Notes to have a conflicting interest as
defined in Section 6.08 for purposes of the Trust Indenture Act with
respect to any securities of the Company or (B) result in the trust
arising from such deposit to constitute, unless it is qualified as, a
regulated investment company under the Investment Company Act of 1940,
as amended.
(4) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company is
a party or by which it is bound.
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(5) Such defeasance or covenant defeasance shall not cause
any Notes then listed on any registered national securities exchange
under the Exchange Act to be delisted.
(6) In the case of an election under Section 11.02, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the
date of this Indenture there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders will not recognize
income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred.
(7) In the case of an election under Section 11.03, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders will not recognize income, gain or loss for
Federal income tax purposes as a result of such covenant defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
covenant defeasance had not occurred.
(8) The Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that following the deposit, the trust
funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally under any applicable U.S. federal or state law, and that the
Trustee has a perfected security interest in such trust funds for the
ratable benefit of the Holders.
(9) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders over the other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any creditors of the Company or others.
(10) No event or condition shall exist that would prevent
the Company from making payments of the principal of, premium, if any,
and interest on the Notes on the date of such deposit.
(11) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 11.02 or the covenant defeasance under Section 11.03 (as
the case may be) have been complied with.
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Section 11.05. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
10.03, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 11.04 in respect of the
Outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (but not including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Notes, of all sums due and to become due thereon in respect of principal
and premium, if any, and interest, but such money need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the money or U.S.
Government Obligations deposited pursuant to Section 11.04 or the principal and
interest received in respect thereof.
Anything herein to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 11.04 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
Section 11.06. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with Section 11.05 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to this
Article Twelve until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 11.05; provided, however, that
if the Company makes any payment of principal of and premium, if any, or
interest on any such Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or the Paying Agent.
Section 11.07. Execution in Counterparts.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all of such counterparts shall together constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed and the seal of the Company to be hereunto affixed and attested,
all as of the day and year first above written.
LOCAL FINANCIAL CORPORATION
[Company Seal] By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman and Chief
Executive Officer
Attest: /s/ Xxxx X. Xxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxx
Title: Corporate Secretary
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxx Xxxx Xxxxxxxxx
----------------------------
Name: Xxxx Xxxx Xxxxxxxxx
Title: Vice President
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