EXHIBIT 4 (I)
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF XXXXX CAPITAL II THAT (A) THIS SECURITY MAY
NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO XXXXX CAPITAL
II OR ANY AFFILIATE THEREOF, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF
APPLICABLE) UNDER THE SECURITIES ACT OR (4) PURSUANT TO AN EFFECTIVE
REGISTRATION UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, OR ANY APPLICABLE
JURISDICTION, AND (B) IT WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER FROM IT OF THIS SECURITY OF THE RESALE RESTRICTIONS SET FORTH IN
(A) ABOVE. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES
FOR THE BENEFIT OF XXXXX CAPITAL II THAT IT IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT. THIS SECURITY WILL BE
ISSUED, AND MAY BE TRANSFERRED, ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF
NOT LESS THAN $100,000. ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS
SECURITY IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000 SHALL BE
DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH TRANSFEREE SHALL
BE DEEMED NOT TO BE THE HOLDER OF SUCH SECURITIES FOR ANY PURPOSE, INCLUDING BUT
NOT LIMITED TO THE RECEIPT OF INTEREST ON SUCH SECURITIES, AND SUCH TRANSFEREE
SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH SECURITIES.
THE HOLDER, BY PURCHASING THIS SECURITY, IS DEEMED TO REPRESENT THAT IT (X)
IS NOT ITSELF, AND IS NOT ACQUIRING THE SECURITY WITH THE ASSETS OF, (i) AN
"EMPLOYEE BENEFIT PLAN" (WITHIN THE MEANING OF SECTION 3(3) OF ERISA), A "PLAN"
(WITHIN THE MEANING OF SECTION 4975(e)(i) OF THE INTERNAL REVENUE CODE), OR AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH AN "EMPLOYEE BENEFIT PLAN" OR "PLAN" AND THE APPLICATION OF
THE PLAN ASSET REGULATION OR (ii) A "GOVERNMENTAL PLAN" (WITHIN THE MEANING OF
SECTION 3(32) OF ERISA) OR (Y)(i) IS ITSELF, OR IS ACQUIRING THE SECURITY WITH
THE ASSETS OF, AN "INVESTMENT FUND" (WITHIN THE MEANING OF PART V(b) OF U.S.
DEPARTMENT OF LABOR PTE 84-14) MANAGED BY A "QUALIFIED PROFESSIONAL ASSET
MANAGER" (WITHIN THE MEANING OF PART V (a) OF PTE 84-14) WHICH HAS MADE OR
PROPERLY AUTHORIZED THE DECISION FOR SUCH FUND TO PURCHASE THE SECURITY, UNDER
CIRCUMSTANCES SUCH THAT PTE 84-14 IS APPLICABLE TO THE PURCHASE AND HOLDING OF
THE SECURITY, (ii) IS AN INSURANCE COMPANY POOLED SEPARATE ACCOUNT PURCHASING
SECURITIES PURSUANT TO PART I OF U.S. DEPARTMENT OF LABOR PTE 90-1 OR A BANK
COLLECTIVE INVESTMENT FUND PURCHASING PURSUANT TO PART I OF U.S. DEPARTMENT OF
LABOR PTE 91-38, AND IN EITHER CASE, NO "PLAN" OR "EMPLOYEE BENEFIT PLAN" NOT
PURCHASING PURSUANT TO PTE 84-14 OWNS MORE THAN 10% OF THE ASSETS OF SUCH
ACCOUNT OR COLLECTIVE FUND (WHEN AGGREGATED WITH OTHER PLANS OF THE SAME
EMPLOYER OR EMPLOYEE ORGANIZATION, (iii) IS AN INSURANCE COMPANY USING THE
ASSETS OF THE GENERAL ASSET ACCOUNT OF THE INSURANCE COMPANY TO PURCHASE THE
SECURITY PURSUANT TO PART I OF THE U.S. DEPARTMENT OF LABOR PTE 95-60, IN WHICH
CASE THE RESERVES AND LIABILITIES FOR THE GENERAL ACCOUNT CONTRACTS HELD BY OR
ON BEHALF OF ANY PLAN, TOGETHER WITH ANY OTHER PLANS MAINTAINED BY THE SAME
EMPLOYER OR EMPLOYEE ORGANIZATION, DO NOT EXCEED 10% OF THE TOTAL RESERVES AND
LIABILITIES OF THE INSURANCE COMPANY GENERAL ACCOUNT (EXCLUSIVE OF SEPARATE
ACCOUNT LIABILITIES), PLUS SURPLUS AS SET FORTH IN THE NATIONAL ASSOCIATION OF
INSURANCE COMMISSIONERS ANNUAL STATEMENT FILED WITH THE STATE OF DOMICILE OF THE
INSURER OR (iv) IS A PLAN ACQUIRING THE SECURITY WITH ASSETS OVER WHICH AN IN-
HOUSE ASSET MANAGER (WITHIN THE MEANING OF PART IV(a) OF PTE 96-23) HAS
DISCRETIONARY AUTHORITY, UNDER CIRCUMSTANCES SUCH THAT PTE 96-23 IS APPLICABLE
TO THE PURCHASE AND HOLDING OF THE SECURITY.
XXXXX NATIONAL CORPORATION
8 7/8% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES,
SERIES C, DUE MARCH 15, 2027
No. C-1 $206,186,000
XXXXX NATIONAL CORPORATION, a corporation organized and existing under the
laws of Delaware (hereinafter called the "Corporation", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to THE BANK OF NEW YORK as Property Trustee or
registered assigns, the principal sum of TWO HUNDRED AND SIX MILLION, ONE
HUNDRED AND EIGHTY SIX THOUSAND DOLLARS ($206,186,000) or such other principal
amount as may be set forth in the records of the Securities Registrar
hereinafter referred to in accordance with the Indenture, plus accrued interest
on March 15, 2027 subject to a Maturity Advancement, as defined herein. The
Corporation further promises to pay interest on said principal sum from March
12, 1997 or from the most recent date (each such date, an "Interest Payment
Date") to which interest has been paid or duly provided for, semi-annually
(subject to deferral as set forth herein) in arrears on June 30 and December 31
of each year, commencing on June 30, 1997 at the rate of 8 7/8% per annum, until
the principal hereof shall have become due and payable, plus Additional
Interest, if any, until
the principal hereof is paid or duly provided for or made available for payment
and on any overdue principal and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the rate of 8 7/8% per annum, compounded semi-
annually. The amount of interest payable for any period less than a full
interest period shall be computed on the basis of twelve 30-day months and a
360-day year. In the event that any date on which interest is payable on this
Security is not a Business Day, then a payment of the interest payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with the
same force and effect as if made on the date the payment was originally payable.
A "Business Day" shall have the meaning assigned thereto in the Indenture. The
interest installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities is
registered at the close of business on the Regular Record Date for such interest
installment. Any such interest installment not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
So long as no Event of Default has occurred and is continuing, the Corporation
shall have the right at any time during the term of this Security to defer
payment of interest on this Security, at any time or from time to time, for a
period not exceeding 10 consecutive semi-annual interest payment periods with
respect to each deferral period (each an "Extension Period"), and at the end of
which the Corporation shall pay all interest then accrued and unpaid plus
interest thereon at the rate of 8 7/8% per annum, compounded semi-annually, to
the extent permitted by applicable law ("Additional Interest"); provided,
however, that no Extension Period shall extend beyond the Stated Maturity of the
principal of this Security; provided, further, that during any such Extension
Period, the Corporation shall not, and shall not permit any Subsidiary of the
Corporation to, (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the
Corporation's capital stock or (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Corporation (including the Series A Subordinated Debentures) that rank pari
passu with or junior in right of payment to this Security or (iii) make any
guarantee payments with respect to any guarantee by the Corporation of the debt
securities of any Subsidiary of the Corporation if such guarantee ranks pari
passu with or junior in right of payment to this Security (other than (a)
dividends or distributions in Common Stock, (b) any declaration of a dividend in
connection with the implementation of a Rights Plan, the issuance of any Common
Stock or any class or series of preferred stock of the Corporation under any
Rights Plan in the future or the redemption or repurchase of any rights
distributed pursuant thereto, (c) payments under the Xxxxx Capital II Guarantee,
and (d) purchases of Common Stock related to the issuance of Common Stock or
rights under any of the Corporation's benefit plans for its directors, officers
or employees
that were entered into prior to the commencement of such Extension Period).
Prior to the termination of any such Extension Period, the Corporation may
further defer the payment of interest on the Securities, provided that no
Extension Period shall exceed 10 consecutive semi-annual periods or extend
beyond the Stated Maturity of the principal of this Security. Upon the
termination of any such Extension Period and upon the payment of all interest
then accrued and unpaid (together with any Additional Interest) on any Interest
Payment Date, the Corporation may elect to begin a new Extension Period, subject
to the above requirements. No interest shall be due and payable during an
Extension Period except at the end thereof. The Corporation shall give the
Property Trustee, the Administrative Trustee and the Trustee notice of its
election to begin any Extension Period at least one Business Day prior to the
earlier of (i) the date interest on the Securities would have been payable
except for the election to begin such Extension Period or (ii) the date the
Administrative Trustees are required to give notice to DTC or an applicable
self-regulatory organization or to holders of the Preferred Securities as of the
record date or the date Distributions on the Preferred Securities are payable,
but in any event not less than one Business Day prior to such record date.
Subject to the above requirements, there is no limitation on the number of times
the Corporation may elect to begin an Extension Period.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Trustee in The City of New
York or at the offices of such Paying Agents or Agents as the Corporation may
designate from time to time outside the United States, 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 indebtedness; provided, however, that at the
option of the Corporation payment of interest may be made (i) except in the
event that this Security is held in the name of the Property Trustee, by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Securities Register or (ii) by wire transfer in immediately
available funds at such place and to such account as may be designated in
writing at least 15 days prior to the relevant Interest Payment Date by the
Person entitled thereto as specified in the Securities Register.
The indebtedness evidenced by this Security is, to the extent provided in the
Indenture, subordinate and junior in right of payment to the prior payment in
full of all Senior Debt, and this Security is issued subject to the provisions
of the Indenture with respect thereto. Each Holder hereof by accepting the same,
(a) agrees to and shall be bound by such provisions, (b) authorizes and directs
the Trustee on his behalf to take such actions as may be necessary or
appropriate to effectuate the subordination so provided and (c) appoints the
Trustee his attorney-in-fact for any and all such purposes. Each Holder hereof,
by his acceptance hereof, waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Debt, whether now outstanding or hereafter incurred, and waives reliance
by each such holder upon said provisions.
Reference is hereby made to the further provisions of this Security set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly
executed under its corporate seal.
XXXXX NATIONAL CORPORATION
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx
Attest: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxxx
This is one of the Securities referred to in the within mentioned
Indenture.
Dated: March 12, 0000
Xxx Xxxx xx Xxx Xxxx
as Trustee
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Authorized Signatory
This Security is one of a duly authorized issue of securities of the
Corporation designated as its 87/8% Junior Subordinated Deferrable Interest
Debentures, Series C, Due March 15, 2027 (herein called the "Securities"),
limited in aggregate principal amount to $206,186,000 issued and to be issued
under a Junior Subordinated Indenture, dated as of March 12, 1997 (herein called
the "Indenture"), between the Corporation and The Bank of New York, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Trustee, the Corporation and
the Holders of the Securities, and of the terms upon which the Securities are,
and are to be, authenticated and delivered.
All terms used in this Security that are defined in the Indenture or
in the Amended and Restated Trust Agreement, dated as of March 12, 1997, as
amended (the "Trust Agreement"), for Xxxxx Capital II, entered into among Xxxxx
National Corporation, as Depositor, and the Trustees named therein and the
Holders from time to time thereunder, shall have the meanings assigned to them
in the Indenture or the Trust Agreement, as the case may be. In the case of
conflict between the Indenture and the Trust Agreement, the meanings assigned in
the Indenture shall apply.
The Corporation may, at its option, on or after March 15, 2007,
subject to the Corporation having received prior approval of the Federal Reserve
if then required under applicable capital guidelines or policies and subject to
the terms and conditions of Article XI of the Indenture, redeem this Security in
whole at any time or in part from time to time, at the following Redemption
Prices (expressed as percentages of the principal amount), plus, in each case,
accrued interest thereon to the date of redemption. If redeemed during the
twelve-month period beginning March 15 in the year indicated,
Date Redemption Price
---- ----------------
2007 104.438%
2008 103.994%
2009 103.550%
2010 103.106%
2011 102.663%
2012 102.219%
2013 101.775%
2014 101.331%
2015 100.888%
2016 100.444%
2017 and thereafter 100.000%
If a Tax Event occurs and is continuing and (i) in the opinion of counsel to
the Corporation experienced in such matters, there would in all cases, after
effecting the termination of Xxxxx Capital II and the distribution of the
Securities to the holders of the Preferred Securities in exchange therefor upon
liquidation of Xxxxx Capital II, as contemplated by Section 9.2 of the Trust
Agreement, be more than an insubstantial risk that an Adverse Tax Consequence
would continue to exist, or (ii) the Securities are not held by the Property
Trustee, then the Corporation shall have
the right (a) to shorten the Stated Maturity of the Securities to the minimum
extent required, but in any event to a date not earlier than March 12, 2012 (the
action referred to in this clause (a) being referred to herein as a "Maturity
Advancement"), such that, in the opinion of counsel to the Corporation
experienced in such matters, after effecting an Maturity Advancement, interest
paid on the Securities would be deductible for United States federal income tax
purposes, or (b) if in the opinion of counsel to the Corporation experienced in
such matters, there would in all cases, after effecting a Maturity Advancement
be more than an insubstantial risk that an Adverse Tax Consequence would
continue to exist, to redeem the Securities, in whole but not in part, at any
time within 90 days following the occurrence of the Tax Event at a redemption
price equal to 100% of the principal amount thereof plus accrued and unpaid
interest thereon to the Redemption Date.
If a Capital Treatment Event occurs and is continuing, the Corporation shall
have the right to redeem the Securities, in whole but not in part, at any time
within 90 days following the occurrence of the Capital Treatment Event at a
redemption price equal to the Make-Whole Amount plus accrued and unpaid interest
on the Securities to the date fixed for redemption.
In the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
This Security and the obligations represented hereby are not senior or
superior in right of payment to the Series A Subordinated Debentures but rank
pari passu therewith.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Corporation with
certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Corporation and the Trustee at any time to enter into a supplemental indenture
or indentures for the purpose of modifying in any manner the rights and
obligations of the Corporation and of the Holders of the Securities, with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities to be affected by such supplemental indenture. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities at the time Outstanding, on behalf of the
Holders of all Securities, to waive compliance by the Corporation with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, if an Event of
Default with respect to the Securities at the time Outstanding 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 Outstanding Securities may declare the
principal amount of all the Securities to be due and payable immediately, by a
notice in writing to the Corporation (and to the Trustee if given by Holders),
provided that, so long as the Securities are held by the Property Trustee, if
upon an Event of Default, the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities fails to declare the principal of
all the Securities to be immediately due and payable, the holders of at least
25% in aggregate Liquidation Amount of the Preferred Securities of Xxxxx Capital
II then outstanding shall have such right by a notice in writing to the
Corporation and the Trustee; and upon any such declaration the principal amount
of and the accrued interest (including any Additional Interest) on all the
Securities shall become immediately due and payable, provided that the payment
of principal and interest (including any Additional Interest) on such Securities
shall remain subordinated to the extent provided in Article XII of the
Indenture.
No reference herein to the Indenture and no provision of this Security or of
the Indenture shall alter or impair the obligation of the Corporation, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to the limitations therein set
forth, the transfer of this Security is registrable in the Securities Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Corporation maintained under Section 10.2 of the Indenture duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Corporation and the Securities Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees. No
service charge shall be made for any such registration of transfer or exchange,
but the Corporation may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Corporation, the Trustee and any agent of the Corporation or the Trustee shall
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Corporation, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Securities are issuable only in registered form without coupons in
minimum denominations of $100,000 and any integral multiples of $1,000 in excess
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
The Corporation and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT
OF LAW PRINCIPLES THEREOF.
