EXHIBIT 4
Commercial Federal Corporation
as Issuer
to
▇▇▇▇▇▇ Trust and Savings Bank
as Trustee
------------------------------
INDENTURE
------------------------------
Dated as of November__, 1996
Subordinated Extendible Notes due 2006
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............... 1
Section 101. Definitions............................................. 1
Section 102. Compliance Certificates and Opinions.................... 11
Section 103. Form of Documents Delivered to Trustee.................. 11
Section 104. Acts of Holders......................................... 12
Section 105. Notices, Etc. to Trustee and Company.................... 13
Section 106. Notice to Holders of Notes; Waiver...................... 14
Section 107. Language of Notices..................................... 14
Section 108. Conflict with Trust Indenture Act....................... 14
Section 109. Effect of Headings and Table of Contents................ 15
Section 110. Successors and Assigns.................................. 15
Section 111. Separability Clause..................................... 15
Section 112. Benefits of Indenture................................... 15
Section 113. Governing Law........................................... 15
Section 114. Legal Holidays.......................................... 15
ARTICLE TWO
FORM OF NOTES......................................................... 16
Section 201. Forms Generally......................................... 16
Section 203. Form of Reverse of Note................................. 19
Section 204. Form of Trustee's Certificate of Authentication......... 23
ARTICLE THREE
THE NOTES............................................................. 24
Section 301. Title and Terms......................................... 24
Section 302. Currency; Denominations................................. 24
Section 303. Execution, Authentication, Delivery and Dating.......... 25
Section 304. Temporary Notes......................................... 25
Section 305. Registration, Transfer and Exchange..................... 26
Section 306. Mutilated, Destroyed, Lost and Stolen Notes............. 27
Section 307. Payment of Interest; Rights to Interest Preserved....... 28
Section 308. Persons Deemed Owners................................... 29
Section 309. Cancellation............................................ 30
Section 310. Authentication and Delivery of Original Issue........... 30
Section 311. Computation of Interest................................. 30
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ARTICLE FOUR
SATISFACTION AND DISCHARGE............................................ 30
Section 401. Satisfaction and Discharge of Indenture................. 30
Section 402. Application of Trust Money.............................. 32
ARTICLE FIVE
REMEDIES.............................................................. 32
Section 501. Events of Default....................................... 32
Section 502. Acceleration of Maturity; Rescission and Annulment...... 34
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee................................................ 35
Section 504. Trustee May File Proofs of Claim........................ 36
Section 505. Trustee May Enforce Claims without Possession of Notes.. 37
Section 506. Application of Money Collected.......................... 37
Section 507. Limitations on Suits.................................... 38
Section 508. Unconditional Right of Holders to Receive Principal
and Interest........................................... 38
Section 509. Restoration of Rights and Remedies...................... 39
Section 510. Rights and Remedies Cumulative.......................... 39
Section 511. Delay or Omission Not Waiver............................ 39
Section 512. Control by Holders of Notes............................. 39
Section 513. Waiver of Past Defaults................................. 40
Section 514. Waiver of Stay or Extension Laws........................ 40
ARTICLE SIX
THE TRUSTEE........................................................... 41
Section 601. Certain Duties and Responsibilities..................... 41
Section 602. Notice of Defaults...................................... 42
Section 603. Certain Rights of Trustee............................... 42
Section 604. Not Responsible for Recitals or Issuance of Notes....... 44
Section 605. May Hold Notes.......................................... 44
Section 606. Money Held in Trust..................................... 45
Section 607. Compensation and Reimbursement.......................... 45
Section 608. Corporate Trustee Required; Eligibility................. 46
Section 609. Resignation and Removal; Appointment of Successor....... 46
Section 610. Acceptance of Appointment by Successor.................. 47
Section 611. Merger, Conversion, Consolidation or Succession to
Business............................................... 48
Section 612. Appointment of Authenticating Agent..................... 48
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY..................... 50
Section 701. Company to Furnish Trustee Names and Addresses of
Holders................................................ 50
Section 702. Preservation of Information; Communications to
Holders................................................ 50
Section 703. Reports by Trustee...................................... 51
Section 704. Reports by Company...................................... 51
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES.................................. 52
Section 801. Company May Consolidate, Etc., Only on Certain Terms.... 52
Section 802. Successor Person Substituted for Company................ 53
ARTICLE NINE
SUPPLEMENTAL INDENTURES............................................... 53
Section 901. Supplemental Indentures without Consent of Holders...... 53
Section 902. Supplemental Indentures with Consent of Holders......... 54
Section 903. Execution of Supplemental Indentures.................... 55
Section 904. Effect of Supplemental Indentures....................... 55
Section 905. Reference in Notes to Supplemental Indentures........... 55
Section 906. Effect on Senior Indebtedness........................... 56
ARTICLE TEN
COVENANTS............................................................. 56
Section 1001. Payment of Principal and Interest...................... 56
Section 1002. Maintenance of Office or Agency........................ 56
Section 1003. Money for Note Payments to Be Held in Trust............ 56
Section 1004. Corporate Existence.................................... 58
Section 1005. Bank Existence; Maintenance of Status as an Insured
Institution........................................... 58
Section 1006. Maintenance of Properties.............................. 58
Section 1007. Restrictions on Dividends, Redemptions and Other
Payments.............................................. 59
Section 1008. Insurance.............................................. 59
Section 1009. Payment of Taxes and Other Claims...................... 60
Section 1010. Books and Records...................................... 60
Section 1011. Statement by Officers as to Default.................... 60
Section 1012. Waiver of Certain Covenants............................ 61
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ARTICLE ELEVEN
REDEMPTION OF NOTES AT COMPANY'S OPTION............................... 61
Section 1101. Right of Redemption.................................... 61
Section 1102. Election to Redeem; Notice to Trustee.................. 61
Section 1103. Notice of Redemption................................... 61
Section 1104. Deposit of Redemption Price............................ 62
Section 1105. Notes Payable on Redemption Date....................... 62
ARTICLE TWELVE
REDEMPTION AT THE OPTION OF HOLDERS................................... 63
Section 1201. Redemption Option upon an Interest Rate Reset Notice... 63
Section 1202. Redemption Procedure at Holder's Option Upon an
Interest Reset Date................................... 63
Section 1203. Withdrawal............................................. 64
Section 1204. Deposit of Redemption Price............................ 64
Section 1205. Notes Payable on Redemption Date....................... 64
Section 1206. Notes Redeemed in Part................................. 64
ARTICLE THIRTEEN
SUBORDINATION OF NOTES................................................ 65
Section 1301. Notes Subordinated to Senior Indebtedness.............. 65
Section 1302. Subrogation............................................ 67
Section 1303. Obligation of Company Unconditional.................... 67
Section 1304. Payments on Notes Permitted............................ 68
Section 1305. Effectuation of Subordination by Trustee............... 68
Section 1306. Knowledge of Trustee................................... 68
Section 1307. Trustee May Hold Senior Indebtedness................... 69
Section 1308. Rights of Holders of Senior Indebtedness Not Impaired.. 69
Section 1309. Notice to Trustee...................................... 69
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INDENTURE, dated as of November__, 1996 (the "Indenture"), between
Commercial Federal Corporation, a corporation duly organized and existing under
the laws of the State of Nebraska (hereinafter called the "Company"), having
executive offices located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇ Trust and Savings Bank, an Illinois banking corporation (hereinafter
called the "Trustee"), having its Corporate Trust Office located at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its Subordinated Extendible Notes due
2006 (hereinafter called the "Notes"), to be issued in such amount and to have
such provisions as are hereinafter set forth. All things necessary to make this
Indenture a valid agreement of the Company, in accordance with its terms, have
been done.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder that are required to be part of this Indenture
and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by
the Holders (as hereinafter defined) thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders from time to time
of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
Except as otherwise expressly provided in this Indenture or unless the
context otherwise requires, for all purposes of this Indenture:
(a) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
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(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles in
the United States and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted in the United States at the date of such computation;
(d) the words "herein", "hereof", "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; and
(e) the word "or" is always used inclusively (for example, the phrase "A or
B" means "A or B or both", not "either A or B but not both").
Certain terms used principally in certain Articles hereof are defined in
those Articles.
"Acceleration Event" has the meaning specified in Section 502.
"Act", when used with respect to any Holders, has the meaning specified in
Section 104.
"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 correlative to the
foregoing.
"Alternative Comparable Maturity Treasury Rate" means the average yields to
maturity of the daily closing bids (or less frequently if daily quotations shall
not be available), quoted by at least three recognized U.S. Government
securities dealers selected by the Company, for all marketable U.S. Treasury
securities with a maturity of not less than three (3) months shorter nor more
than three (3) months longer than the applicable Comparable Maturity from any
November 1 preceding an Interest Reset Date (other than securities which can, at
the option of the holder, be surrendered at face value in payment of any Federal
estate tax) for the most recent five (5) consecutive business days during which
there had been at least three (3) days on which daily closing bids were quoted
within the 25-calendar day period preceding such November 1.
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"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 612 to act on behalf of the Trustee to authenticate Notes.
"Authorized Newspaper" means a newspaper, in an official language of the
place of publication or in the English language, customarily published on each
day that is a Business Day in the place of publication, whether or not published
on days that are Legal Holidays in the place of publication, and of general
circulation in each place in connection with which the term is used or in the
financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
"Bank" means Commercial Federal Bank, a Federal Savings Bank, and any
successor thereto.
"Board of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act generally or in any particular
respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions, 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, delivered to the Trustee.
"Business Day", with respect to any Place of Payment or other location,
means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a Legal
Holiday in such Place of Payment or other location.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934 or, if at
any time after the execution of this Indenture 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" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person, and any other obligor upon the Notes.
"Company Request" and "Company Order" mean, respectively, a written request
or order, as the case may be, signed in the name of the Company by the Chairman
of the Board, a Vice Chairman of the Board, the Chief Executive Officer, the
President, a Vice President, the Treasurer, an Assistant Treasurer, the
Secretary
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or an Assistant Secretary, of the Company, or by another officer of the Company
duly authorized to sign by a Board Resolution, and delivered to the Trustee.
"Comparable Maturity" means, with respect to an Interest Rate Period of one
(1), two (2), three (3) or five (5) years, one (1), two (2), three (3) or five
(5) years, respectively.
"Consolidated Net Income" means the amount of net income (loss) of the
Company and its Subsidiaries determined in accordance with generally accepted
accounting principles; provided, however, that there shall not be included in
Consolidated Net Income (a) any net income (loss) of a Subsidiary for any period
during which it was not a Consolidated Subsidiary or (b) any net income (loss)
of businesses, properties or assets acquired or disposed of (by way of merger,
consolidation, purchase, sale or otherwise) by the Company or any Subsidiary for
any period prior to the acquisition thereof or subsequent to the disposition
thereof; and, provided, further, any assessment, or the effect thereof, imposed
by the FDIC on the Bank as a result of the Bank's membership in the Savings
Association Insurance Fund for the purpose of recapitalizing such fund shall be
excluded from the determination of Consolidated Net Income.
"Consolidated Subsidiary" means a Subsidiary of the Company the financial
statements of which are required to be included in the financial statements of
the Company and its Subsidiaries.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
office at the date of original execution of this Indenture is located at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Department.
"Corporation" includes corporations and, except for purposes of Article
Eight, associations, companies and business trusts.
"Defaulted Interest" has the meaning specified in Section 307.
"Derivative Obligations" means any obligations of the Company to make
payment pursuant to the terms of any securities contracts and foreign currency
exchange contracts, derivative instruments, such as swap agreements (including
interest rate and currency and foreign exchange rate swap agreements), cap
agreements, floor agreements, collar agreements, interest rate agreements,
foreign exchange agreements, options, commodity futures contracts and commodity
options contracts other than obligations on account of indebtedness for money
borrowed ranking pari passu with or subordinate to the Notes.
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"Effective Interest Rate on Comparable Maturity U.S. Treasury Obligations"
means as of the November 1 preceding an Interest Reset Date (i) if available,
the most recent Weekly Comparable Maturity Treasury Rate published during the
twenty-five (25) calendar day period preceding such November 1 or (ii) if such
Weekly Comparable Maturity Treasury Rate is not available, the Alternate
Comparable Maturity Treasury Rate as of such November 1.
"Event of Default" has the meaning specified in Section 501.
"FDIC" means the Federal Deposit Insurance Corporation or successor
thereto.
"Government Obligations" means direct obligations of the United States of
America, or any Person controlled or supervised by and acting as an agency or
instrumentality of such government, in each case where the payment or payments
thereunder are unconditionally guaranteed as a full faith and credit obligation
by such government and which are not callable or redeemable at the option of the
issuer or issuers thereof, and shall also include a depository receipt issued by
a bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of or other amount
with respect to any such Government Obligation held by such custodian for the
account of the holder of a 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 Government Obligation or the specific payment of
interest on or principal of or other amount with respect to the Government
Obligation evidenced by such depository receipt.
"Holder", when used with respect to the Notes, means the Person in whose
name such Note is registered in the Note Register.
"Indenture" means this instrument 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, including, for all purposes
of this instrument and any such supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively.
"Independent Public Accountants" means a nationally recognized firm of
accountants that, with respect to the Company, are independent public
accountants within the meaning of the Securities Act of 1933, as amended, and
the rules and regulations promulgated by the Commission thereunder, who may be
the independent public accountants regularly retained by the Company or who may
be other independent public accountants. Such accountants or firm shall be
entitled to
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rely upon any Opinion of Counsel as to the interpretation of any legal matters
relating to the Indenture or certificates required to be provided hereunder.
"Insured Institution" means any "insured bank" as defined in 12 U.S.C.
Section 1813(h), or a similar definition under any succeeding federal law
hereinafter enacted.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Notes.
"Interest Rate Period" means a period of one (1), two (2), three (3) or
five (5) years (but never extending beyond December 1, 2006), commencing with an
Interest Reset Date and ending on, but not including, the December 1 of such
first, second, third or fifth year, as the case may be.
"Interest Reset Date" means December 1, 2001 or the expiration date of any
subsequent Interest Rate Period.
"Interest Rate Reset Notice" means the notice described in the form of Note
set forth in Sections 202 and 203 pursuant to which, prior to an Interest Reset
Date, the Company provides notice to the Trustee of the related Subsequent
Interest Rate and Interest Rate Period, copies of which shall be mailed by the
Trustee to Noteholders within two Business Days thereafter as provided in the
form of Note set forth in Sections 202 and 203.
"Junior Indebtedness" means the principal amount of, and interest on, any
indebtedness for money borrowed of the Company, whether now outstanding or
hereafter created, incurred, assumed or guaranteed, provided that in the
instrument creating or evidencing such indebtedness or pursuant to which such
indebtedness is outstanding it is provided that (a) such indebtedness is junior
in right of payment to the Notes; (b) no payments with respect to such
indebtedness may be made at any time that an Event of Default shall have
occurred and be continuing or at any time that payments made to holders of the
Notes are to be withheld or paid over to holders of Senior Indebtedness in
accordance with Article Thirteen hereof and (c) no payments other than the
payment of interest may be made with respect to such indebtedness at any time
the Notes are Outstanding.
"Legal Holiday", with respect to any Place of Payment, means a Saturday, a
Sunday or a day on which banking institutions or trust companies in such Place
of Payment are not authorized or obligated to be open.
"Maturity" means the date on which the principal of the Notes or an
installment of principal becomes due and payable as provided in this Indenture,
whether at the Stated Maturity or by declaration of acceleration, notice of
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redemption, notice of option to elect redemption or otherwise, and includes any
Redemption Date.
"Money", with respect to any payment, deposit or other transfer pursuant to
or contemplated by the terms hereof, means United States dollars or other
equivalent unit of legal tender for payment of public or private debts in the
United States of America.
"Note" or "Notes" means any note or notes, as the case may be,
authenticated and delivered under this Indenture.
"Note Register" and "Note Registrar" have the respective meanings specified
in Section 305.
"Office or Agency" means an office or agency of the Company maintained or
designated in a Place of Payment for the Notes pursuant to Section 1002 or any
other office or agency of the Company maintained or designated for the Notes
pursuant to Section 1002 or, to the extent designated or required by Section
1002 in lieu of such office or agency, the Corporate Trust Office of the
Trustee.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the Chief Executive Officer, the President
or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary of the Company, that complies with the requirements of
Section 314(e) of the Trust Indenture Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel who shall be reasonably
acceptable to the Trustee, that complies with the requirements of Section 314(e)
of the Trust Indenture Act and is delivered to the Trustee.
"Outstanding" means, as of the date of determination, all Notes theretofore
authenticated and delivered under this Indenture, except:
(a) any Note theretofore canceled by the Trustee or the Note Registrar or
delivered to the Trustee or the Note Registrar for cancellation;
(b) any Note or portion thereof for whose payment at the Maturity thereof
Money in the necessary amount has been theretofore deposited pursuant hereto
with the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of the Notes, provided that, if the Notes are
to be redeemed, notice of
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such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(c) any Note with respect to which the Company has effected defeasance
pursuant to clauses (1)(b) and (3) of Section 401 hereof; and
(d) any Note which has been paid pursuant to Section 306 or in exchange for
or in lieu of which other Notes have been authenticated and delivered pursuant
to this Indenture, unless there shall have been presented to the Trustee proof
satisfactory to it that such Note is held by a bona fide purchaser in whose
hands such Note is a valid obligation of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Notes 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 such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in making any
such determination or relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which the Trustee knows to be
so owned shall be so disregarded. Notes so owned which shall have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee (1) the pledgee's right so to act with respect to
such Notes and (2) that the pledgee is not the Company or any other obligor upon
the Notes or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Note on behalf of the Company.
"Person" means any individual, Corporation, partnership, joint venture,
joint-stock company, limited liability company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" has the meaning set forth in Section 301.
"Predecessor Note" of a 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
306 in exchange for or in lieu of a lost, destroyed, mutilated or stolen Note
shall be deemed to evidence the same debt as the lost, destroyed, mutilated or
stolen Note.
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"Redemption Date", with respect to any Note to be redeemed, means the date
fixed for such redemption pursuant to Article Eleven or Article Twelve, as the
case may be, of this Indenture.
"Redemption Price", with respect to any Note to be redeemed, means the
price at which it is to be redeemed pursuant to Article Eleven or Article
Twelve, as the case may be, of this Indenture.
"Regular Record Date" for the interest payable on any Note on any Interest
Payment Date therefor means the date specified in Section 202 as the "Regular
Record Date".
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust Office and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"RTC" means the Resolution Trust Corporation or a successor thereto.
"Senior Indebtedness" means the principal amount of, and interest on (a)
all indebtedness of the Company for money borrowed (including indebtedness of
others guaranteed by the Company) other than the Notes, whether outstanding on
the date hereof or thereafter created, assumed or incurred, (b) any amendments,
renewals, extensions, modifications and refundings of any such indebtedness,
unless in either case in the instrument creating or evidencing any such
indebtedness or pursuant to which it is outstanding it is provided that such
indebtedness is not superior in right of payment to the Notes, and (c)
Derivative Obligations. For the purposes of this definition, "indebtedness for
money borrowed" is defined as (1) any obligation of the Company for the
repayment of borrowed money, whether or not evidenced by bonds, debentures,
notes or other written instrument, (2) any deferred payment obligation of the
Company for the payment of the purchase price of property or assets evidenced by
a note or similar instruments, and (3) any obligation of the Company for the
payment of rent or other amounts under a lease of property or assets which
obligation is required to be classified and accounted for as a capitalized lease
on the balance sheet of the Company under generally accepted accounting
principles; provided, however, that the foregoing shall not include any
obligation that constitutes a trade payable or accrued liability arising in the
ordinary course of business. Notwithstanding anything herein to the contrary,
Senior Indebtedness shall not include the Company's 10.25% Subordinated Notes
due March 15, 1999.
"Significant Subsidiary" means the Bank, Commercial Federal Mortgage
Corporation, a Nebraska corporation ("CFMC"), and any other Subsidiary within
the
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meaning of Rule 12b-2 under the Securities Exchange Act of 1934, as in effect at
the date as of which this Indenture was executed.
"Special Record Date" for the payment of any Defaulted Interest on any Note
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", with respect to any Note or any installment of principal
thereof or interest thereon means the date established by this Indenture as the
fixed date on which the principal of such Note or such installment of principal
or interest is due and payable.
"Subsidiary" means any Corporation of which at the time of determination
the Company or one or more Subsidiaries owns or controls directly or indirectly
more than 50% of the shares of Voting Stock.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
and any reference herein to the Trust Indenture Act or a particular provision
thereof shall mean such Act or provision, as the case may be, as amended or
replaced from time to time or as supplemented from time to time by rules or
regulations adopted by the Commission under or in furtherance of the purposes of
such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
each Person who is then a Trustee hereunder.
"United States", except as otherwise provided herein, means the United
States of America (including the states thereof and the District of Columbia),
its territories and possessions and other areas subject to its jurisdiction.
"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 added before or after the title "Vice President".
"Voting Stock" means stock of a Corporation of the class or classes having
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of such Corporation provided
that, for the purposes hereof, stock which carries only the right to vote
conditionally on the happening of an event shall not be considered Voting Stock
whether or not such event shall have happened.
"Weekly Comparable Maturity Treasury Rate" means the weekly average yield
to maturity values adjusted to a constant maturity of the Comparable Maturity
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as read from the yield curves of the most actively traded marketable U.S.
Treasury fixed interest rate securities constructed daily by the U.S. Treasury
Department as published by the Federal Reserve Board or any Federal Reserve Bank
or by a United States Government department or agency.
Section 102. Compliance Certificates and Opinions.
(a) 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 documents or any of them is specifically required by any provision of
this Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
(b) 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 condition or covenant 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;
(3) a statement that, in the opinion of each such individual, such
individual has made such examination or investigation as is necessary to enable
such individual to express an informed opinion as to whether or not such
condition or covenant 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 103. Form of Documents Delivered to Trustee.
(a) In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such
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Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
(b) 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 of counsel or Opinion of Counsel or
representation of counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company 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 are erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Note, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are received by 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 the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Note, shall be
sufficient for any purpose of this Indenture and (subject to Section 315 of the
Trust Indenture Act) conclusive in favor of the Trustee and the Company and any
agent of the Trustee or the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any reasonable manner which the Trustee deems
sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
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(c) The ownership, principal amount and serial numbers of Notes held by any
Person, and the date of the commencement and the date of the termination of
holding the same, shall be proved by the Note Register.
(d) If the Company shall solicit from the Holders of any Notes any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may at its option (but is not obligated to), by Board Resolution, fix in
advance a record date for the determination of Holders of Notes entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other
Act. 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 Notes of record at the close of
business on such record date shall be deemed to be Holders for the purpose 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 of Notes 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.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Note shall bind every future Holder of the
same Note and 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, any Note Registrar, any Paying Agent or
the Company in reliance thereon, whether or not notation of such action is made
upon such Note.
Section 105. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or the Company shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing to or with the
Trustee at its Corporate Trust Office, or
(b) the Company by the Trustee or any Holder 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 the attention
of its Treasurer at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously furnished in
writing to the Trustee by the Company.
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Section 106. Notice to Holders of Notes; Waiver.
(a) Except as otherwise expressly provided in this Indenture, where this
Indenture provides for notice to Holders of Notes of any event, such notice
shall be sufficiently given to Holders of Notes if in writing and mailed, first-
class postage prepaid, to each Holder of a Note affected by such event, at such
Holder'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.
(b) In any case where notice to Holders of Notes is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder of a Note shall affect the sufficiency of such notice with
respect to other Holders of Notes. Any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given or
provided. 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,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
(c) 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, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Notes 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 waiver.
Section 107. Language of Notices.
Any request, demand, authorization, direction, notice, consent, election or
waiver required or permitted under this Indenture shall be in the English
language.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control. If any provision
of this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or excluded, as the case may be.
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Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 110. 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 111. Separability Clause.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, either wholly or partially, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby, and such provisions shall be given effect to the fullest
extent permitted by law.
Section 112. Benefits of Indenture.
Except as otherwise provided in Article Thirteen, nothing in this Indenture
or in the Notes, express or implied, shall give to any Person, other than the
parties hereto, any Note Registrar, any Paying Agent, any Authenticating Agent
and their respective successors hereunder and the Holders of Notes, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
This Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of Nebraska applicable to agreements made
or instruments entered into and, in each case, performed in said state.
Section 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Note shall be a Legal Holiday at any Place of Payment, then
(notwithstanding any other provision of this Indenture) payment need not be made
at such Place of Payment on such date, but may be made on the next succeeding
day that is a Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date, Redemption Date or at the Stated
Maturity, and no interest shall accrue on the amount payable on such date or at
such time for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be.
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ARTICLE TWO
FORM OF NOTES
Section 201. Forms Generally.
(a) Each Note issued pursuant to this Indenture 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 or any indenture supplemental hereto 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 any law or with any rule or regulation
of any stock exchange or as may, consistently herewith, be determined by the
officers executing such Note as evidenced by their execution of such Note. The
Notes shall be issuable in registered form only without coupons.
(b) Definitive Notes shall be printed, lithographed or engraved or produced
by any combination of these methods on a steel engraved border or steel engraved
borders or may be produced in any other manner, all as determined by the
officers of the Company executing such Notes, as evidenced by their execution of
such Notes.
Section 202. Form of Face of Note.
COMMERCIAL FEDERAL CORPORATION
SUBORDINATED EXTENDIBLE NOTE DUE 2006
$____________________ $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.
Commercial Federal Corporation, a Nebraska corporation (herein called the
"Company"), for value received, hereby promises to pay to
----------------------
, or registered assigns, the principal sum of
------------------ ----------------
Dollars on December 1, 2006 (or on such earlier date at which the Company may
redeem this Note as set forth hereinbelow), and to pay interest thereon at the
rate per annum specified hereinbelow from [insert date], 1996 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, on the first day of each calendar month, commencing January 15, 1997 (each
an "Interest Payment Date"), until the principal hereof is paid or made
available for payment.
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Until December 1, 2001, this Note shall bear interest at the rate of __%
per annum. Thereafter, on or before thirty (30) days prior to December 1, 2001
or any subsequent Interest Reset Date (as defined herein), the Company shall
establish the interest rate per annum (rounded to the nearest five hundredths of
a percentage point) (a "Subsequent Interest Rate"). Any such Subsequent Interest
Rate shall not be less than 105% of the Effective Interest Rate on Comparable
Maturity U.S. Treasury Obligations (as defined herein) established prior to the
commencement of each such subsequent Interest Rate Period. In the event that the
Company determines on the November 1 preceding such Interest Reset Date that
during the ten (10) calendar days preceding such November 1 no Weekly Comparable
Maturity Treasury Rate (as defined herein) has been published and the Alternate
Comparable Maturity Treasury Rate (as defined herein) could not be determined,
the Company shall establish such Subsequent Interest Rate in its discretion
without limitation. If the Company shall decide not to establish a Subsequent
Interest Rate for a subsequent Interest Rate Period (as defined herein), the
interest rate for the prior Interest Rate Period shall continue in effect,
unless and until the Company shall establish a Subsequent Interest Rate on or
before November 1 of any subsequent year for a subsequent Interest Rate Period,
commencing with December 1 of such subsequent year. Until establishment of such
a Subsequent Interest Rate for a subsequent Interest Rate Period, each December
1 shall be deemed for all purposes to be an Interest Reset Date.
The Company shall notify the Trustee of each Subsequent Interest Rate and
Interest Rate Period or its decision not to establish a Subsequent Interest Rate
on or before thirty (30) days prior to an Interest Reset Date. Upon receipt
from the Company of the Interest Rate Reset Notice regarding any Subsequent
Interest Rate and the related Interest Rate Period, the Trustee shall promptly
mail to each Noteholder (and to beneficial owners as required by applicable
laws), but in no event later than two (2) Business Days after receipt of notice
from the Company, a notice that shall state, among other things, (a) that the
Company has exercised its option to reset the interest rate or decided not to
establish a Subsequent Interest Rate, (b) the Subsequent Interest Rate and the
related Interest Rate Period, (c) that the Noteholder must exercise his option
to have his Notes redeemed not later than the fifth Business Day before the
Interest Reset Date and procedures to be followed by the Noteholder to exercise
such option, (d) that if a Noteholder elects to revoke his exercise of such
option prior to the redemption of his Notes, he must do so not later than the
fifth business day before the Interest Reset Date and the procedures to be
followed to revoke the exercise of such option and (e) such other information as
the Company may provide.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, except as provided in the Indenture hereinafter
referred to, be paid to the Person in whose name this Note (or one or more
Predecessor
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Notes) is registered at the close of business on the Regular Record Date for
such interest, which shall be the seventh day, whether or not a Business Day, of
the month in which the Interest Payment Date occurs. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date and either 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, all as more fully provided in the 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, or in 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 Chicago, Illinois (the
"Corporate Trust Office")), 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 payment of interest on any Interest
Payment Date may be made at the option of the Company by check mailed to the
address of the Person entitled thereto as such address shall appear in the Note
Register. Payments of principal will be made against presentation of this Note
at the Corporate Trust Office (or such other office as may be established
pursuant to the Indenture), by check.
Reference is hereby made to the further provisions of this Note set forth
on the reverse side hereof, which further provisions shall for all purposes have
the same effect as though fully set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the
Trustee or an Authenticating Agent under the Indenture referred to on the
reverse hereof by the manual signature of one of its authorized officers, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be signed in its
name by the manual or facsimile signature of its Chief Executive Officer, its
President or one of its Vice Presidents and its corporate seal, or a facsimile
thereof, to be impressed or imprinted hereon, attested by the manual or
facsimile signature of its Secretary or one of its Assistant Secretaries.
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Date:
COMMERCIAL FEDERAL
CORPORATION
[Corporate Seal]
By:
___________________________
President
ATTEST:
---------------------------
Secretary
Section 203. Form of Reverse of Note.
COMMERCIAL FEDERAL CORPORATION
SUBORDINATED EXTENDIBLE NOTE DUE 2006
This Note is one of a duly authorized issue of Notes of the Company
designated as its Subordinated Extendible Notes due 2006 ("herein called the
"Notes") limited in aggregate principal amount to $50,000,000 issued and to be
issued under an Indenture dated as of November__, 1996 (herein called the
"Indenture"), between the Company and ▇▇▇▇▇▇ Trust and Savings Bank, 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 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.
As used herein, the following capitalized terms shall have the following
meanings:
"Alternate Comparable Maturity Treasury Rate" means the average yields to
maturity of the daily closing bids (or less frequently if daily quotations shall
not be available), quoted by at least three recognized U.S. Government
securities dealers selected by the Company, for all marketable U.S. Treasury
securities with a maturity of not less than three (3) months shorter nor more
than three (3) months longer than the applicable Comparable Maturity from the
November 1 preceding an Interest Reset Date (other than securities which can, at
the option of the holder, be surrendered at face value in payment of any Federal
estate tax) for the most recent five (5) consecutive business days during which
there had been at least three (3) days
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on which daily closing bids were quoted within the twenty-five (25) calendar day
period preceding such November 1.
"Comparable Maturity" means, with respect to an Interest Rate Period of one
(1), two (2), three (3) or five (5) years, one (1), two (2), three (3) or five
(5) years, respectively.
"Effective Interest Rate on Comparable Maturity U.S. Treasury Obligations"
means as of the November 1 preceding an Interest Reset Date (i) if available,
the most recent Weekly Comparable Maturity Treasury Rate published during the
twenty-five (25) calendar day period preceding such November 1 or (ii) if such
Weekly Comparable Maturity Treasury Rate is not available, the Alternate
Comparable Maturity Treasury Rate as of such November 1.
"Interest Rate Period" means a period of one (1), two (2), three (3) or
five (5) years (but never extending beyond December 1 2006), commencing with an
Interest Reset Date and ending on, but not including, the December 1 of such
first, second, third or fifth year, as the case may be.
"Interest Reset Date" means December 1, 2001 or the expiration date of any
subsequent Interest Rate Period.
"Weekly Comparable Maturity Treasury Rate" means the weekly average yield
to maturity values adjusted to a constant maturity of the Comparable Maturity as
read from the yield curves of the most actively traded marketable U.S. Treasury
fixed interest rate securities constructed daily by the U.S. Treasury Department
as published by the Federal Reserve Board or any Federal Reserve Bank or by a
United States Government department or agency.
The indebtedness of the Company evidenced by the Notes, including the
principal thereof and interest thereon (including post-default interest), (a) is
expressly subordinated, to the extent and to the manner set forth in the
Indenture, in right of payment to the prior payment in full of all of the
Company's obligations to holders of Senior Indebtedness and (b) is unsecured by
any collateral, including the assets of the Company or any of its Subsidiaries
or Affiliates. Each Holder of Notes, by acceptance thereof, (1) agrees to and
shall be bound by such provisions of the Indenture and all other provisions of
the Indenture; (2) authorizes and directs the Trustee to take such action on
such Holder's behalf as may be necessary or appropriate to effectuate the
subordination of the Notes as provided in the Indenture; and (3) appoints the
Trustee as such Holder's attorney-in-fact for any and all such purposes.
The Notes are not subject to any sinking fund. The Notes may be redeemed,
at the option of the Company, as a whole prior to maturity on each Interest
Reset
-20-
Date at 100% of the principal amount thereof, without premium, together with
interest thereon accrued to such Redemption Date.
Notice of redemption shall be given to the Holders of Notes by mailing a
notice of such redemption not less than 30 or more than 60 days prior to the
Redemption Date at their addresses as they shall appear on the Note Register,
all as provided in the Indenture.
If this Note is duly called for redemption and funds for payment duly
provided, this Note shall cease to bear interest from and after such Redemption
Date.
Unless the Notes have been declared due and payable prior to maturity by
reason of an Event of Default, the holder of this Note has the right to present
it, together with all other Notes held by such holder, for payment not later
than five (5) business days before any Interest Reset Date, and the Company will
redeem the same on the Interest Reset Date.
Notes may be presented for redemption by delivering to the Trustee: (i) a
written request for redemption, in form satisfactory to the Trustee, signed by
the registered holder(s) or his duly authorized representative and (ii) the Note
to be redeemed. No particular forms of request for redemption or authority to
request redemption are necessary. The price to be paid by the Company for all
Notes or portions thereof presented to it for redemption is 100% of the
principal amount or respective portions thereof plus accrued but unpaid interest
to the Redemption Date.
In the case of any Notes which are presented for redemption in part only,
upon redemption, the Company shall execute and the Trustee shall authenticate
and deliver to or on the order of the holder of such Notes, without service
charge, a new Note(s), of any authorized denomination or denominations as
requested by such holder, in aggregate principal amount equal to the unpaid
portion of the principal amount of the Notes so presented.
Any Notes presented for redemption by the holder may be withdrawn by the
person(s) presenting the same upon delivery of a written request for such
withdrawal to the Trustee not later than five (5) business days before the
Interest Reset Date.
Interest installments whose Stated Maturity is on the Redemption Date will
be payable to the Holders of such Notes, or one or more Predecessor Notes, of
record at the close of business on the relevant Regular Record Date referred to
on the face hereof, as all provided in the Indenture. In the event of
redemption of this Note in
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part only, a new Note or Notes for the unredeemed portion hereof shall be issued
in the name of the Holder hereof upon the surrender hereof.
Except as may be provided in the Indenture, if an Acceleration Event with
respect to the Notes shall occur and be continuing, the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Notes may declare
the principal of all the Notes 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 Outstanding Notes.
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 and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Notes at the time Outstanding.
The Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Notes at the time Outstanding,
on behalf of the Holders of all 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 the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the 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 Note.
No reference herein to the Indenture and no provisions of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, places and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note may be registered 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 or at such other
office or agency as may be established by the Company for such purpose pursuant
to the Indenture (initially the Corporate Trust Office), duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and duly executed by, the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Notes are issuable only in registered form, without coupons, in
denominations of $1,000 or any amount in excess thereof which is an integral
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multiple of $1,000. As provided in the Indenture, and subject to certain
limitations therein set forth, the Notes are exchangeable for a like aggregate
principal amount of Notes in authorized denominations, as requested by the
Holder surrendering the same.
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.
Prior to the due presentment of this Note for registration of transfer or
exchange, 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.
Each holder of a Note covenants and agrees by such Holder's acceptance
thereof to comply with and be bound by the foregoing provisions.
This Note shall be governed and construed in accordance with the laws of
the State of Nebraska.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
Section 204. Form of Trustee's Certificate of Authentication.
Subject to Section 612, the Trustee's certificate of authentication shall
be in substantially the following form:
This is one of the Notes referred to in the within-mentioned Indenture.
▇▇▇▇▇▇ Trust and Savings Bank,
as Trustee
By________________________
Authorized Officer
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ARTICLE THREE
THE NOTES
Section 301. Title and Terms.
(a) The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is limited to $50,000,000, except for Notes
authenticated and delivered upon transfer of, or in exchange for, or in lieu of
other Notes pursuant to Sections 304, 305, 306, 905, 1107 and 1204.
(b) The Notes shall be known and designated as the Subordinated Extendible
Notes due 2006 of the Company. Their Stated Maturity shall be December 1, 2006,
and they 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 202 and 203, until the principal thereof is paid or
made available for payment.
(c) The principal of and interest on the Notes shall be payable at the
Office or Agency of the Company maintained for such purposes pursuant to Section
1002 ("Place of Payment"); 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.
(d) The Notes shall be redeemable at the option of the Company as a whole
prior to maturity on each Interest Reset Date as provided in Article Eleven.
(e) The Notes shall be redeemable at the option of the Noteholder before
any Interest Reset Date as provided in Article Twelve.
(f) The Notes shall be subordinated in right of payment to Senior
Indebtedness, whether outstanding at the date of this Indenture or thereafter
created, as provided in Article Thirteen.
Section 302. Currency; Denominations.
The principal of and interest on the Notes shall be payable in United
States dollars or other equivalent unit of legal tender for payment of public or
private debts in the United States of America. Notes shall be issuable in
registered form only without coupons in denominations of $1,000 and any integral
multiple thereof.
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Section 303. Execution, Authentication, Delivery and Dating.
(a) Notes shall be executed on behalf of the Company by its Chairman of
the Board, one of its Vice Chairmen of the Board, its Chief Executive Officer,
its President, its Treasurer 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.
(b) 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.
(c) 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 up to the aggregate principal amount authorized
hereunder and, provided that a Company Order for the authentication and delivery
of such Notes has been delivered to the Trustee, the Trustee, in accordance with
the Company Order and subject to the provisions hereof, shall authenticate and
deliver such Notes.
(d) Each Note shall be dated the date of its authentication.
(e) 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 in Section
204 or 612 executed by or on behalf of the Trustee by the manual signature of
one of its authorized officers or by an Authenticating Agent. Such certificate
upon any Note shall be conclusive evidence, and the only evidence, that such
Note has been duly authenticated and delivered hereunder.
Section 304. Temporary Notes.
(a) Pending the preparation of definitive Notes, the Company may execute
and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary Notes
in lieu thereof 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, in registered form and
with such appropriate insertions, omissions, substitutions and other variations
as the officers of the Company executing such Notes may determine, as
conclusively evidenced by their execution of such Notes.
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(b) If temporary Notes are issued, the Company shall cause definitive
Notes to be prepared without unreasonable delay. After the preparation of
definitive Notes, such temporary Notes shall be exchangeable for such definitive
Notes upon surrender of such temporary Notes at an Office or Agency for such
Notes, without charge to any Holder thereof. Upon surrender for cancellation of
any one or more temporary Notes, the Company shall execute and the Trustee shall
authenticate and deliver 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 305. Registration, Transfer and Exchange.
(a) The Company shall cause to be kept a register (herein sometimes
referred to as the "Note Register") at an Office or Agency maintained pursuant
to Section 1002 in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Notes and of
transfers of the Notes. The Trustee is hereby initially appointed as Note
Registrar for the Notes. In the event that the Trustee shall cease to be Note
Registrar it shall have the right to examine the Note Register at all reasonable
times.
(b) Upon surrender for registration of transfer of any Note at the Office
or Agency of the Company, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes, denominated as authorized in this Indenture,
of a like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
(c) At the option of the Holder, Notes may be exchanged for other Notes,
in any authorized denominations, and 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 deliver, the Notes which the Holder making the
exchange is entitled to receive.
(d) 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
entitling the Holders thereof to the same benefits under this Indenture as the
Notes surrendered upon such registration of transfer or exchange.
(e) Every Note presented or surrendered for registration of transfer or
for exchange or redemption shall (if so required by the Company or the Note
Registrar for such Note) be duly endorsed by, 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 such Holder's attorney duly
authorized in writing.
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(f) 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 Section 304, 905 or 1107 not involving any transfer.
(g) The Company shall not be required (1) to issue, register the transfer
of or exchange any Notes during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of Notes selected
under Section 1103 and ending at the close of business on the day of the mailing
of the relevant notice of redemption, (2) to register the transfer of or
exchange any Note so selected for redemption in whole or in part, except in the
case of any Note to be redeemed in part, the portion thereof not to be redeemed,
or (3) to issue, register the transfer of or exchange any Note which, in
accordance with its terms, has been surrendered for redemption at the option of
the Holder, except the portion, if any, of such Note not to be so redeemed.
Section 306. Mutilated, Destroyed, Lost and Stolen Notes.
(a) If any mutilated Note is surrendered to the Trustee, subject to the
provisions of this Section, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Note containing identical
terms and of like principal amount and bearing a number not contemporaneously
outstanding.
(b) If there be delivered to the Company and to the Trustee (1) evidence
to their satisfaction of the destruction, loss or theft of any Note, and (2)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and, upon the Company's request the Trustee
shall authenticate and deliver, in exchange for or in lieu of any such
destroyed, lost or stolen Note, a new Note containing identical terms and of
like principal amount and bearing a number not contemporaneously outstanding.
(c) Notwithstanding the foregoing provisions of this Section, in case any
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 such Note.
(d) Upon the 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
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charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
(e) Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an additional original
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.
(f) The provisions of this Section, as amended or supplemented pursuant to
this Indenture, shall be 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 307. Payment of Interest; Rights to Interest Preserved.
(a) Any interest on any Note which shall be payable and is punctually paid
or duly provided for on any Interest Payment Date shall be paid to the Person in
whose name such Note (or one or more Predecessor Notes) is registered as of the
close of business on the Regular Record Date for such interest.
(b) Any interest on any Note which shall be payable, but shall not be
punctually paid or duly provided for, on any Interest Payment Date for such Note
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder thereof on the relevant Regular Record Date by virtue of having been such
Holder; and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in Clause (1) or (2) below. Such Defaulted Interest
shall accrue interest, to the extent legally enforceable, at the rate of
interest borne by the Notes.
(1) The Company may elect to make payment of any Defaulted Interest to the
Person in whose name such Note (or a Predecessor Note thereof) shall be
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 Defaulted Interest
proposed to be paid on such 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
on or prior to the date of the proposed payment, such Money when so deposited to
be held in trust for the benefit of the Person 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 be not more
than 15 days and
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not less than 10 days prior to the date of the proposed payment and not less
than 10 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 the Holder of such Note
(or a Predecessor Note thereof) at such Holder's address as it appears in the
Note Register not less than 10 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
of general circulation in each Place of Payment, but such publication shall not
be a condition precedent to the establishment of such Special Record Date.
Notice of the 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 Person in whose name such Note (or a Predecessor Note thereof) shall
be registered at the close of business 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 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.
(c) At the option of the Company, interest on the Notes may be paid by
mailing a check to the address of the person entitled thereto as such address
shall appear in the Note Register.
(d) 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.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Note is registered in the Note Register as the owner
of such Note for the purpose of receiving payment of principal of and (subject
to Section 307) interest on such Note and for all other purposes whatsoever,
whether or not any payment with respect to such Note shall be overdue, and
neither the Company, nor
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the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
Section 309. Cancellation.
All Notes surrendered for payment, redemption, registration of transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Notes, as well as Notes surrendered
directly to the Trustee for any such purpose, shall be canceled promptly by the
Trustee. 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
canceled promptly 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 destroyed by the Trustee, unless by a Company Order the Company directs
their return to it.
Section 310. 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 $50,000,000
may be executed by the Company and delivered to the Trustee for authentication,
and shall thereupon be authenticated and delivered by the Trustee upon Company
Order, without any further action by the Company.
Section 311. Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day year of
twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
(a) Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect and the Trustee, on receipt of such Company
Order, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
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(A) all Notes theretofore authenticated and delivered (other than (i)
Notes which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306 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 1003) have been delivered to the Trustee for cancellation;
or
(B) as to all Notes not so theretofore delivered to the Trustee for
cancellation the Company has irrevocably deposited or caused to be deposited
with the Trustee, as trust funds or obligations in trust for such purpose, Money
or Government Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms, without consideration of any
reinvestment thereof, will provide not later than the opening of business on the
due dates of any payment of principal and interest with respect thereto, or a
combination thereof, Money in an amount sufficient to pay and discharge the
entire indebtedness on such Notes not theretofore delivered to the Trustee for
cancellation, including the principal thereof and interest thereon, to the date
of such deposit (in the case of Notes which have become due and payable) or to
the Maturity 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 a certificate of Independent
Public Accountants certifying as to the sufficiency of the amounts deposited
pursuant to subclause (B) of Clause (1) of this Section for payment of the
principal and interest on the dates such payments are due, and an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein providing for or relating to the satisfaction and discharge of
this Indenture have been complied with.
(b) Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 612 and, if Money or
Government Obligations shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
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Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all Money
and Government Obligations deposited with the Trustee pursuant to Section 401
and all Money received by the Trustee in respect of Government Obligations
deposited with the Trustee pursuant to Section 401 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 and interest for
whose payment such Money has or Government Obligations have been deposited with
or received by the Trustee; but such Money and Government Obligations need not
be segregated from other funds of the Trustee except to the extent required by
law.
Section 403. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article Four by reason of any order or judgement of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Four until such time as the Trustee or Paying Agent is permitted to
apply all money held in trust with respect to the Notes; provided, however, that
if the Company makes any payment principal of or any premium or interest on any
Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of the Notes to receive such payment
from the money so held in trust.
ARTICLE FIVE
REMEDIES
Section 501. 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 be effected by operation of law pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of any interest on any Note when such interest
becomes due and payable, and continuance of such default for a period of 10
days, whether or not such payment is prohibited by the provisions of Article
Thirteen;
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(b) default in the payment of the principal of any Note when it becomes
due and payable at its Maturity or upon redemption, whether or not such payment
is prohibited by the provisions of Article Thirteen;
(c) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture or the Notes (other than a covenant or warranty a
default in the performance or the breach of which is elsewhere in this Section
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;
(d) default in the payment at stated maturity of any indebtedness of the
Company or a Significant Subsidiary for money borrowed in principal amount due
at stated maturity in excess of $7,000,000, and such default shall continue,
without being cured, waived or consented to and without such indebtedness being
discharged, for a period of 30 days beyond any applicable period of grace;
(e) the occurrence of an event of default as defined in any mortgage,
indenture or instrument under which there may be issued, or by which there may
be secured or evidenced, any indebtedness of the Company or any Significant
Subsidiary for money borrowed (or the payment of which is guaranteed by the
Company), whether such indebtedness now exists or shall hereafter be created,
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 $7,000,000 or more 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;
(f) the entry by a court or agency or supervisory authority having
competent jurisdiction of: (1) a decree or order for relief in respect of the
Company or any Significant Subsidiary in an involuntary proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; (2) a decree or order adjudging the Company or any Significant
Subsidiary to be insolvent, or approving a petition seeking reorganization,
arrangement, adjustment or composition of the Company or any Significant
Subsidiary and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or (3) a decree or order appointing the FDIC or
the RTC or any other Person to act as a custodian, conservator, receiver,
liquidator, assignee, trustee or other similar official
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of the Company, the Bank or any other Significant Subsidiary or of any
substantial part of the property of the Company, the Bank or any other
Significant Subsidiary, as the case may be, or ordering the winding up or
liquidation of the affairs of the Company, the Bank or any other Significant
Subsidiary and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days;
(g) the commencement by the Company or any Significant Subsidiary of a
voluntary proceeding under any applicable bankruptcy, insolvency, reorganization
or other similar law or of a voluntary proceeding seeking to be adjudicated
insolvent or the consent by the Company or any Significant Subsidiary to the
entry of a decree or order for relief in an involuntary proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any insolvency proceedings against it, or the filing by the
Company or any Significant Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable law, or the consent by the Company
or any Significant Subsidiary to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee or similar official of the Company or any Significant
Subsidiary or any substantial part of the property of the Company or any
Significant Subsidiary or the making by the Company or any Significant
Subsidiary of an assignment for the benefit of creditors, or the taking of
corporate action by the Company or any Significant Subsidiary in furtherance of
any such action; or
(h) a final judgment, judicial decree or order for the payment of money in
excess of $7,000,000 shall be rendered against the Company or any Subsidiary and
such judgment, decree or order shall continue unsatisfied for a period of 60
days without a stay of execution.
Section 502. Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default described in Clauses (f) or (g) of Section 501
occurs and is continuing (an "Acceleration Event"), then the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Notes may
declare the principal of all the Notes, and the interest accrued thereon, to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the Holders), and upon any such declaration such amount
shall become immediately due and payable.
(b) At any time after such a declaration of acceleration has been made and
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 not less
than a majority in principal amount of the Outstanding Notes, 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 of Money
sufficient to pay:
(A) all overdue installments of any interest on all Notes,
(B) the principal of any Notes which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate borne by such
Notes,
(C) to the extent that payment of such interest is lawful, interest upon
overdue installments of any interest at the rate borne by such Notes,
(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, shall have been cured or waived as provided in
Section 513.
(c) No such rescission shall affect any subsequent Acceleration Event or
impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
(a) The Company covenants that upon the occurrence of any Event of
Default, the Company shall, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holders of such Notes, the whole amount of Money then due and
payable with respect to such Notes, with interest upon the overdue principal
and, to the extent that payment of such interest shall be legally enforceable,
upon any overdue installments of interest at the rate borne by such Notes, and,
in addition thereto, such further amount of Money 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.
(b) If the Company fails to pay the Money it is required to pay the
Trustee pursuant to the preceding paragraph forthwith upon the demand of the
Trustee, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the money so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Notes and
collect the Money adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Notes,
wherever situated.
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(c) If an Event of Default with respect to the Notes occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Notes 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 such Notes or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
(a) In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Notes
or the property of the Company or such other obligor or their creditors, the
Trustee (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 any overdue principal or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of the principal 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 or counsel) and of the
Holders of Notes allowed in such judicial proceeding, and
(2) to collect and receive any Monies or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder of Notes 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 Holders of Notes, 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 607.
(b) Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Note 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 Holder of a Note in any such proceeding;
provided, however, that the
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Trustee may, on behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar office and may be a member of the creditors' committee.
Section 505. Trustee May Enforce Claims without Possession of Notes.
All rights of action and claims under this Indenture or any of 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 or judgment, after provision for
the payment of the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, shall be for the ratable benefit of each
and every Holder of a Note in respect of which such judgment has been recovered.
Section 506. 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 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:
(a) First to the payment of costs and expenses of collection, including
all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses and disbursements of the Trustee, its agents and counsel
and all other amounts due the Trustee and any predecessor Trustee under Section
607;
(b) Second, subject to the provisions of Article Thirteen hereof, in the
case the principal of the Notes shall not have become due and payable to the
payment of the amounts then due and unpaid upon the Notes for interest in
respect of which or for the benefit of which such Money has been collected, 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 overdue
installments of interest at the rate borne by the Notes, such payments to be
made ratably, without preference or priority of any kind, according to the
aggregate amounts due and payable on such Notes for interest;
(c) Third, in the case the principal of the Notes shall have become due
and payable, to the payment of the amounts then due and unpaid upon the Notes
for principal and interest in respect of which or for the benefit of which such
Money has been collected, with interest, to the extent that such interest has
been collected by the Trustee, upon overdue installments of interest at the rate
borne by the Notes, such payments to be made ratably, without preference or
priority of any kind, according to
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the aggregate amounts due and payable on such Notes for principal and interest,
respectively; and
(d) Fourth, the balance, if any, to the Company.
Section 507. Limitations 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
(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Notes shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against the costs, expenses and liabilities to be
incurred in compliance with such request (including reasonable fees of counsel);
(d) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(e) 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 of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Note 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 such Holders.
Section 508. Unconditional Right of Holders to Receive Principal
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 (subject to Section 307) interest on such Note
on the respective Stated Maturity or Maturities therefor specified in such Note
(or, in the
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case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Note 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 Holder, then and in every such case the Company, the
Trustee and each such Holder 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 each such
Holder shall continue as though no such proceeding had been instituted.
Section 510. 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 306,
no right or remedy herein conferred upon or reserved to the Trustee or to each
and every Holder of a Note is intended to be exclusive of any other right or
remedy, and every right and remedy, to the extent permitted by law, shall 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 511. 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 an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to any Holder of a Note may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by such Holder, as the
case may be.
Section 512. Control by Holders of Notes.
The Holders of 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 with respect to the Notes, provided that:
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(a) such direction shall not be in conflict with any rule of law or with
this Indenture;
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(c) subject to Section 601, the Trustee shall have the right to decline to
follow any such direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not lawfully be taken or
if the Trustee in good faith shall determine that the action or proceedings so
directed might involve the Trustee in personal liability or if the Trustee in
good faith shall so determine that the actions or forbearances specified in or
pursuant to such direction shall be unduly prejudicial to the interest of
Holders of the Notes not joining in the giving of said direction, it being
understood that the Trustee shall have no duty to ascertain whether or not such
actions or forbearances are unduly prejudicial to such Holders.
Section 513. Waiver of Past Defaults.
(a) The Holders of not less than a majority in principal amount of the
Outstanding Notes on behalf of the Holders of all the Notes may waive any past
default hereunder and its consequences, except a default
(1) in the payment of the principal of or interest on any Note, 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.
(b) Upon any 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 514. Waiver of Stay or Extension Laws.
The Company covenants that (to the extent that it may lawfully do so) 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 expressly waives (to the extent
that it may lawfully do so) all benefit or advantage of any such law and
covenant, that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will
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suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. 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 person would exercise or use under the circumstances in the conduct of
such person's 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;
(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;
(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
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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,
under this Indenture with respect to the Notes, provided such direction shall
not be in conflict with any rule of law or with this Indenture; 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 and
subject to Sections 315 and 316 of the Trust Indenture Act.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder, the Trustee
shall transmit, in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act, notice of such default hereunder known to the Trustee,
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 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 or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Notes; and
provided, further, that in the case of any default of the character specified in
Section 501(c) with respect to Notes, no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
Section 603. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officer's Certificate, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or parties;
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(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or a 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
shall be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) before the Trustee acts or refrains from acting, the Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and 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 Holders of Notes pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity reasonable to it against the costs,
expenses and liabilities which might be incurred by it, including reasonable
fees of counsel, in complying 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, debenture,
coupon 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, during business hours and upon
reasonable notice, the books, records and premises of the Company, personally or
by agent or attorney;
(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;
(h) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
(i) the Trustee shall not be required to give any bond or surety in respect
of the performance of its powers and duties hereunder;
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(j) the Trustee shall not be bound to ascertain or inquire as to the
performances or observance of any covenants, conditions, or agreements on the
part of the Company, except as otherwise set forth herein, but the Trustee may
require of the Company full information and advice as to the performance of the
covenants, conditions and agreements contained herein and shall be entitled in
connection herewith to examine the books, records and premises of the Company;
(k) the permissive rights of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty and the Trustee shall not be
answerable for other than its negligence or willful misconduct;
(l) except for (i) a default under Section 501 (a) or (b) hereof, or (ii)
any other event of which the Trustee has "actual knowledge" and which event,
with the giving of notice or the passage of time or both, would constitute an
Event of Default under this Indenture, the Trustee shall not be deemed to have
notice of any default or event unless specifically notified in writing of such
event by the Company or the Holders of not less than 25% in aggregate principal
amount of the Notes outstanding; as used herein, the term "actual knowledge"
means the actual fact or statement of knowing, without any duty to make any
investigation with regard thereto.
Section 604. Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, except the Trustee's
certificate of authentication, shall be taken as the statements of the Company
and neither the Trustee nor any Authenticating Agent assumes any 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 a Statement of Eligibility and Qualification on Form T-
1 supplied to the Company are true and accurate, subject to the qualifications
set forth therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of the Notes or the
proceeds thereof
Section 605. May Hold Notes.
The Trustee, any Authenticating Agent, any Paying Agent, any Note Registrar
or any other Person that may be an agent of the Trustee or the Company, in its
individual or any other capacity, may become the owner or pledgee of Notes and,
subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise
deal with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Note Registrar or such other Person.
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Section 606. Money Held in Trust.
Except as provided in Section 402 and Section 1003, Money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall be held uninvested. The Trustee shall be under
no liability for interest on any Money received by it hereunder except as
otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
(a) The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation for all
services rendered by the Trustee 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) except as otherwise expressly provided herein, 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 agents and counsel), except any such expense, disbursement
or advance as may be attributable to the Trustee's negligence or willful
misconduct; and
(3) to indemnify the Trustee and its agents for, and to hold them harmless
against, any loss, liability or expense incurred without negligence or willful
misconduct on their part, arising out of or in connection with the acceptance or
administration of the trust hereunder, including the costs and expenses of
defending themselves against any claim or liability in connection with the
exercise or performance of any of their powers or duties hereunder.
(b) As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Notes upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of and interest on the Notes. "Trustee"
for the purposes of this Section includes any predecessor Trustee, but
negligence or bad faith of any Trustee shall not be attributed to any other
Trustee. The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of the indenture.
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(c) When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(f) or (g), the expenses and the
compensation for such services are intended to constitute expenses of
administration under any bankruptcy law.
Section 608. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a Corporation
organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, authorized under such laws to
exercise corporate trust powers, or any other person permitted by the Trust
Indenture Act to act as trustee under an indenture qualified under the Trust
Indenture Act and that has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$50,000,000. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 609. 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 pursuant to Section 610.
(b) The Trustee may resign at any time by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee required by
Section 610 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(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 the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the obligations imposed upon it
under Section 310(b) of the Trust Indenture Act after written request therefor
by the Company or any Holder of a Note who has been a bona fide Holder of a Note
for at least six months, or
(2) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of
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its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Company, by or pursuant to a Board Resolution,
may remove the Trustee, or (B) subject to Section 315(e) of the Trust Indenture
Act, any Holder of a Note who has been a bona fide Holder of a Note for at least
six months may, on behalf of such Holder and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(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 or pursuant to a Board Resolution, shall promptly appoint a successor Trustee
and shall comply with the applicable requirements of Section 610. 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 in accordance with the applicable
requirements of Section 610, 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 Holders of Notes and accepted
appointment in the manner required by Section 610, any Holder of a Note who has
been a bona fide Holder of a Note for at least six months may, on behalf of such
Holder 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 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 Corporate
Trust Office.
Section 610. Acceptance of Appointment by Successor.
(a) Upon the appointment hereunder of any successor Trustee, such
successor Trustee so appointed shall execute, acknowledge and deliver to the
Company and 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
hereunder of the retiring Trustee; but, on the request of the Company or such
successor Trustee, such retiring Trustee, upon payment of its charges, shall
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
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Trustee all property and Money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 607.
(b) Upon request of any Person appointed hereunder as a successor Trustee,
the Company shall execute any and all instruments for more fully vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in this Section.
(c) No Person shall accept its appointment hereunder as a successor
Trustee unless at the time of such acceptance such successor Person shall be
qualified and eligible under this Article.
Section 611. Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted 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,
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 612. Appointment of Authenticating Agent.
(a) The Trustee may appoint one or more Authenticating Agents acceptable
to the Company with respect to the Notes which shall be authorized to act on
behalf of the Trustee to authenticate Notes issued upon original issue,
exchange, registration of transfer, partial redemption or pursuant to Section
306, and Notes so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Notes by the Trustee or the Trustee's certificate
of authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
(b) Each Authenticating Agent shall be acceptable to the Company and,
except as provided in this Indenture, shall at all times be a corporation that
would be permitted by the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter
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to act as an Authenticating Agent and has a combined capital and surplus
(computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at
least $50,000,000. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect specified in this Section.
(c) Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall be the successor of
such Authenticating Agent hereunder, provided such Corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
(d) An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of Notes,
if any, as their names and addresses appear in the Note Register. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder, shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
(e) The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 607.
(f) The provisions of Sections 308, 604 and 605 shall be applicable to
each Authenticating Agent.
(g) If an Authenticating Agent is appointed pursuant to this Section, the
Notes may have endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication in the
following form:
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This is one of the Notes referred to in the within-mentioned Indenture.
--------------------------
As Authenticating Agent
By__________________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the Company
shall furnish or cause to be furnished to the Trustee
(a) semi-annually on October 1 and April 1 of each year, a list, in each
case in such form as the Trustee may reasonably require, of the names and
addresses of Holders as of the applicable date, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that so long as the Trustee is the Note Registrar no such
list shall be required to be furnished for Notes for which the Trustee acts as
Note Registrar.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
(b) Every Holder of Notes, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company, the Trustee, any Paying
Agent or any Note Registrar shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
of Notes in accordance with Section 312 of the Trust Indenture Act, regardless
of the source from which such information was derived, and that the Trustee
shall not be held accountable by reason of mailing any material pursuant to a
request made under Section 312(b) of the Trust Indenture Act.
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Section 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year, if required by Section
313(a) of the Trust Indenture Act, the Trustee shall transmit, pursuant to
Section 313(c) of the Trust Indenture Act, a brief report dated as of such May
15 with respect to any of the events specified in said Section 313(a) which may
have occurred since the later of the immediately preceding May 15 and the date
of this Indenture.
(b) The Trustee shall transmit the reports required by Section 313(b) of
the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in the manner
and to the Persons required by Sections 313(c) and 313(d) of the Trust Indenture
Act.
Section 704. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture Act, shall:
(a) file with the Trustee, within 15 days after the date on which the
Company would be required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not required to file information,
documents or reports pursuant to either of said Sections, then it shall file
with the Trustee substantially comparable information;
(b) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company, as
the case may be, with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
(c) transmit to the Holders of Notes within 30 days after the filing
thereof with the Trustee, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, such summaries of any information, documents
and reports required to be filed by the Company pursuant to paragraphs (a) and
(b) of this Section as may be required by rules and regulations prescribed from
time to time by the Commission; provided that notwithstanding the requirements
of such rules and regulations, so long as any Note is Outstanding the Company
shall transmit to the Holders of Notes, within 30 days after the filing thereof
with the Trustee, in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act, the information, documents and other reports required
to be filed by the Company
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pursuant to paragraph (a) of this Section; provided further that in lieu of any
Annual Report on Form 10-K or Quarterly Report on Form 10-Q, the Company may
transmit an annual or quarterly report, respectively, containing financial
statements and an undertaking to transmit such Form 10-K or Form 10-Q, as the
case may be, to any Holder upon request, and in lieu of any Current Report on
Form 8-K, the Company may transmit a notice containing a brief description of
the event that is the subject of such Current Report and an undertaking to
transmit such Form 8-K upon request; and
(d) furnish to the Trustee the Officers' Certificates and notices required
by Section 1012 hereof.
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
Nothing contained in this Indenture shall prevent any consolidation or
merger of the Company with or into any other Person or Persons (whether or not
affiliated with the Company), or successive consolidations or mergers in which
the Company or its successor or successors shall be a party or parties, or shall
prevent any conveyance, transfer or lease of the property of the Company as an
entirety or substantially as an entirety, to any other Person (whether or not
affiliated with the Company); provided, however, that:
(a) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, the entity formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety shall be a Corporation organized and existing under the laws of the
United States of America, any state thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed by the
successor Person and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of and interest on all
the Notes and the performance of every other covenant of this Indenture on the
part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction, no event which,
after notice or lapse of time, or both, would become an Event of Default shall
have occurred and be continuing;
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(c) immediately after giving effect to such transaction, each Insured
Institution controlled by the Company or the successor Person shall be in
compliance with all applicable minimum capital requirements or shall have filed
a capital plan acceptable to its primary regulator; and
(d) either the Company or the successor Person shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
Section 802. Successor Person Substituted for Company.
Upon any consolidation or merger or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entirety to any
Person in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer 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 Person had been named as the Company herein;
and thereafter, except in the case of a lease to another Person, the predecessor
Person shall be released from all obligations and covenants under this Indenture
and the Notes.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holder of Notes, the Company (when authorized by
or pursuant to a Board Resolution) and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, which shall
conform with the requirements of the Trust Indenture Act as then in effect and
be in form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company, and the
assumption by any such successor of the covenants of the Company herein and in
the Notes; or
(b) to add to or change any of the provisions of this Indenture to change
or eliminate any restrictions on the payment of principal of or interest on
Notes or to permit or facilitate the issuance of Notes in uncertificated form,
provided any such
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action shall not adversely affect the interests of the Holders of Notes in any
material respect; or
(c) to cure any ambiguity or 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 adversely affect the interests of the Holders of
Notes in any material respect; or
(d) to supplement any of the provisions of this Indenture to such extent
as shall be necessary to permit or facilitate the defeasance and discharge of
any Notes pursuant to Article Four; provided that any such action shall not
adversely affect the interests of any Holder of a Note in any material respect;
or
(e) to add to the covenants of the Company for the benefit of the Holders
of the Notes (as shall be specified in such supplemental indenture or
indentures) or to surrender any right or power herein conferred upon the
Company.
Section 902. Supplemental Indentures with Consent of Holders.
(a) 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 or pursuant to a
Board Resolution), and the Trustee may enter into one or more indentures
supplemental hereto (which shall conform with the requirements of the Trust
Indenture Act as then in effect) 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 of Notes under this
Indenture; provided, however, that no such supplemental indenture, without the
consent of the Holder of each Outstanding Note, shall
(1) change the Stated Maturity of the principal of, or any installment of
interest on, any Note, or reduce the principal amount payable upon the
redemption thereof or otherwise, or change the rate of interest thereon, or
adversely affect the right of redemption at the option of any Holder as
contemplated by Article Twelve, or change the Place of Payment, currency in
which the principal of or interest on, 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 redemption, on or after the Redemption
Date), or
(2) reduce the percentage in principal amount of the Outstanding Notes, the
consent of the Holders of which is required for any such supplemental indenture,
or the consent of the Holders of which is required
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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, or Section 513 or Section
1013, except to increase any such percentage 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.
(b) It shall not be necessary for any Act of Holders of Notes under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 315 of the Trust Indenture Act) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. 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 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, 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 a Note theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
Section 905. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may 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 Company, 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.
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Section 906. Effect on Senior Indebtedness.
No supplemental indenture shall directly or indirectly modify the
provisions of Article Thirteen in any manner which might terminate or impair the
rights and benefits of subordination provided to the holders of Senior
Indebtedness pursuant to Article Thirteen.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of and interest on
the Notes in accordance with the terms thereof and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment an Office or Agency
where Notes may be presented or surrendered for payment, where Notes may be
surrendered for registration, 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
any change in the location, of such Office or Agency. The Company hereby
initially designates the Corporate Trust Office of the Trustee as its Office or
Agency for each of the foregoing purposes. If at any time the Company shall fail
to maintain any such required Office or Agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands. The Company hereby initially
appoints the Trustee as the Paying Agent.
Section 1003. Money for Note Payments to Be Held in Trust.
(a) If the Company shall at any time act as its own Paying Agent, it
shall, on or before each due date of the principal of or interest on the Notes,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum of Money sufficient to pay the principal or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and shall promptly notify the Trustee of its action or failure so to
act.
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(b) Whenever the Company shall have one or more Paying Agents, it shall,
on or prior to each due date of the principal of or interest on the Notes,
deposit with any Paying Agent a sum of Money sufficient to pay the principal or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled thereto, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
(c) The Company shall 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 shall:
(1) hold all sums held by it for the payment of the principal of or
interest on 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 provided in
this Indenture;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Notes) in the making of any payment of principal or interest on
the Notes; 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.
(d) 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 terms as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such Money.
(e) 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 or interest on any
Note and remaining unclaimed for six years after such principal or interest
shall have become due and payable shall 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 published once, in an Authorized
Newspaper in each Place of
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Payment, or to be mailed to Holders of Notes, 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, any unclaimed
balance of such Money then remaining will be repaid to the Company.
Section 1004. Corporate Existence.
Subject to Article Eight, the Company shall 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 shall comply 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; provided, however, that
subject to Section 1005 the foregoing shall not obligate the Company to preserve
any such right or franchise if the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Subsidiaries and that the loss thereof is not disadvantageous in any
material respect to any Holder.
Section 1005. Bank Existence; Maintenance of Status as an Insured
Institution.
The Company shall do or cause to be done all things necessary to preserve
and keep in full force and effect the Bank's status as an Insured Institution
and do all things necessary to ensure that savings accounts of the Bank 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 1006. Maintenance of Properties.
The Company will:
(a) cause 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 the foregoing shall not 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 any Holder; and
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(b) take all appropriate steps to preserve, protect and maintain the
trademarks, trade names, copyrights, licenses and permits used in the conduct of
the business of the Company and its Subsidiaries; provided, however, that the
foregoing shall not prevent the Company or a Subsidiary from selling, abandoning
or otherwise disposing of any such trademark, trade name, copyright, 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 any Holder.
Section 1007. Restrictions on Dividends, Redemptions and Other Payments.
The Company shall not declare or pay any dividends on, or purchase, redeem
or otherwise acquire or retire for value, any of its capital stock now or
hereafter outstanding, or return any capital to holders of its capital stock as
such, or make any distribution of assets to holders of its capital stock as
such, except that the Company may (a) declare and pay dividends in capital stock
of the Company, (b) declare and pay dividends or make distributions in cash or
property (other than capital stock of the Company) and (c) purchase, redeem or
otherwise acquire or retire for value any of its capital stock now or hereafter
outstanding, provided that no such dividend, redemption or distribution shall
occur if the amount of such dividend, redemption or distribution, together with
the amount of all previous such dividends, redemptions and distributions by the
Company subsequent to September 30, 1996, would exceed in the aggregate the sum
of: (1) $50,000,000, plus (2) 75% of the Company's aggregate Consolidated Net
Income (reduced by 100% of any consolidated net loss), based upon audited annual
financial statements, for each fiscal year commencing after the year ended June
30, 1996, plus (3) 100% of the net proceeds received by the Company on account
of any capital stock issued by the Company (other than to a Subsidiary)
subsequent to June 30, 1996. For purposes of the preceding sentence, the
amount of any dividend payable in property other than cash, or property other
than cash received upon the issuance or sale of capital stock, shall be deemed
to be the fair market value of such property as determined by the Board of
Directors.
Section 1008. Insurance.
Subject to the right to sell, abandon or otherwise dispose of any building
or property whenever in the opinion of the Company the retention thereof is
inadvisable or not necessary to the business of the Company and its
Subsidiaries, the Company will at all times cause all buildings, equipment and
other insurable properties owned or operated by it or any Subsidiary to be
properly insured and kept insured with responsible insurance carriers, or
adequately insured by means of proper inter-insurance contracts, against loss or
damage by fire and other hazards, to
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the extent that such properties are usually insured by corporations owning or
operating properties of a similar character; provided, however, that the
foregoing shall not prevent the Company or any Subsidiary from maintaining any
self-insurance program covering minor risks if adequate reserves are maintained
in connection with such program.
Section 1009. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (a) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary and (b) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, however, that the
Company 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.
Section 1010. 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 1011. Statement by Officers as to Default.
(a) The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate (for purposes of this Section 1011, at least one such officer shall
be the principal executive, principal financial or principal accounting officer
of the Company), stating whether or not to the best knowledge of the signers
thereof the Company is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture, setting forth the
arithmetical computations required to show compliance with the provisions of
Sections 1007 during the previous year, and, if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge.
(b) The Company will deliver to the Trustee, within five days after the
occurrence thereof, written notice of any event which after notice or lapse of
time or both would become an Event of Default pursuant to Clause (d) or (e) of
Section 501 of an Officer's Certificate specifying such default or event, the
period of existence thereof and what action the Company is taking or proposes to
take with respect thereto.
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Section 1012. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1004 through 1007 with respect to
the Notes if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Notes, by Act of such Holders,
either shall waive such compliance in such instance or generally shall have
waived compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision 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
term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF NOTES AT COMPANY'S OPTION
Section 1101. Right of Redemption.
The Company may, at its option, redeem the Notes as a whole prior to the
Stated Maturity thereof on any Interest Reset Date, at the 100% of the principal
amount thereof, without premium, together with interest accrued to the
Redemption Date; provided, however, that the Company may not redeem any Notes
pursuant to such option prior to December 1, 2001. Redemption of Notes at the
option of the Company as permitted hereby shall be made in accordance with the
terms of such Notes and this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Notes, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Notes to be redeemed.
Section 1103. Notice of Redemption.
(a) Notice of redemption shall be given in the manner provided in Section
106, not less than 30 nor more than 60 days prior to the Redemption Date, to the
Holders of Notes. Failure to give notice by mailing in the manner herein
provided to the Holder of any Notes, or any defect in the notice to any such
Holder,
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shall not affect the validity of the proceedings for the redemption of any other
Notes.
(b) Any notice that is mailed to the Holder of any Notes in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not such Holder receives the notice.
(c) All notices of redemption shall state;
(1) the Redemption Date;
(2) the Redemption Price;
(3) that, on the Redemption Date, the Redemption Price shall become
due and payable upon each such Note to be redeemed and that
interest thereon shall cease to accrue on and after said date;
and
(4) the place or places where such Notes are to be surrendered for
payment of the Redemption Price.
(d) Notice of redemption of Notes at the election of the Company shall be
given by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company.
Section 1104. Deposit of Redemption Price.
On or prior to the business day immediately preceding any Interest Reset
Date upon which redemption is to take place, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
Money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) any accrued interest on, all the Notes
which are to be redeemed on that date.
Section 1105. Notes Payable on Redemption Date.
(a) Notice of redemption having been given as aforesaid, the Notes shall,
on the Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such Notes shall cease to
bear interest. Upon surrender of any such Note for redemption in accordance with
said notice, such Note shall be paid by the Company at the Redemption Price,
together with any accrued interest to the Redemption Date; provided, however,
that installments of interest on Notes whose Stated Maturity is on or prior to
the
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Redemption Date shall be payable to the Holders of such Notes, or one or more
Predecessor Notes, registered as such at the close of business on the Regular
Record Dates therefor according to their terms and the provisions of Section
307.
(b) If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal, until paid, shall bear interest from the
Redemption Date at the rate prescribed therefor in the Note.
ARTICLE TWELVE
REDEMPTION AT THE OPTION OF HOLDERS
Section 1201. Redemption Option upon an Interest Rate Reset Notice.
Unless pursuant to the terms of Section 501 the Notes have been declared
due and payable prior to their maturity by reason of an Event of Default and
such Event of Default has not been waived and such declaration has not been
rescinded or annulled, a Noteholder has the right to present all but not less
than all of his Notes for payment prior to their maturity during the period from
the date of the Interest Rate Reset Notice pertaining to an Interest Reset Date
to the fifth business day preceding the Interest Reset Date, and the Company
will redeem the same on the Interest Reset Date if Notes have been properly
presented for payment on behalf of beneficial holders who are natural persons.
Section 1202. Redemption Procedure at Holder's Option Upon an Interest
Reset Date.
Notes presented for redemption by a Holder exercising his option to have
his Notes redeemed on an Interest Reset Date will be redeemed on such Interest
Reset Date. Holders of Notes presented for redemption shall be entitled to and
shall receive scheduled monthly payments of interest thereon on scheduled
Interest Payment Dates until their Notes are redeemed.
Notes may be presented for redemption by delivering to the Trustee: (A) a
written request for redemption, in form satisfactory to the Trustee, signed by
the registered holder(s) or his duly authorized representative and (B) the Note
to be redeemed, free and clear of any liens or encumbrances of any kind. No
particular forms of request for redemption or no authority to request redemption
are necessary. The price to be paid by the Company for all Notes or portions
thereof presented to it pursuant to the provisions described in this Article
Twelve is 100% of the principal amount thereof or portion thereof plus accrued
but unpaid interest on the principal amount redeemed to the Redemption Date.
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Section 1203. Withdrawal.
Any Notes presented for redemption at the option of the holder may be
withdrawn by the person(s) presenting the same upon delivery of a written
request for such withdrawal to the Trustee not later than five (5) business days
before the relevant Interest Reset Date.
Section 1204. Deposit of Redemption Price.
Within 30 days after the receipt by the Company or the Trustee of any
request for redemption of a Note or Notes or any portion thereof duly made
pursuant to Section 1202, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of Money sufficient to
pay the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) any accrued interest on all the Notes or portions thereof
which are to be redeemed on that date.
Section 1205. Notes Payable on Redemption Date.
(a) A written request having been made as aforesaid, the Note or Notes so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price, and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Notes shall
cease to bear interest. Upon surrender of any such Note for redemption in
accordance with said request, such Note shall be paid by the Company at the
Redemption Price, together with any accrued interest to the Redemption Date;
provided, however, that installments of interest on Notes whose Stated Maturity
is on or prior to the Redemption Date shall be payable to the Holders of such
Notes, or one or more Predecessor Notes, registered as such at the close of
business on the Regular Record Dates therefor according to their terms and the
provisions of Section 307.
(b) If any Note to be redeemed shall not be so paid upon surrender thereof
for redemption, the principal, until paid, shall bear interest from the
Redemption Date at the rate prescribed therefor in the Note.
Section 1206. Notes Redeemed in Part.
Any Note which is to be redeemed only in part shall be surrendered at any
Office or Agency for such Note (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or such
Holder's attorney duly authorized in writing), and the Company shall execute and
the Trustee shall authenticate and deliver to the Holder of such Note, without
service
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charge, a new Note or Notes, containing identical terms and provisions, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unpaid portion of the principal of the
Note so surrendered.
Section 1207. Redemption Register.
The Trustee shall maintain at its main office a register (the "Redemption
Register") in which it shall record, in order of receipt, all requests for
redemption received by the Trustee under Section 1202. Unless withdrawn, all
such requests shall remain in effect during the period in which they are
received and thereafter from period to period, until the Notes which are the
subject of such request have been redeemed.
Section 1208. Redemption of Notes Subject to Article Eleven.
In the case of any Notes or portion thereof which are presented for
redemption pursuant to this Article Twelve and which have not been redeemed at
the time the Company gives notice of its election to redeem Notes pursuant to
Article Eleven, such Notes or portion thereof shall first be subject to
redemption pursuant to Article Eleven and if any such Notes or portion thereof
are not redeemed pursuant to Article Eleven they shall remain subject to
redemption pursuant to Article Twelve.
ARTICLE THIRTEEN
SUBORDINATION OF NOTES
Section 1301. Notes Subordinated to Senior Indebtedness.
(a) The Company covenants and agrees, and each Holder of Notes, by such
Holder's acceptance thereof, likewise covenants and agrees, and for purposes of
Section 508 consents, that the indebtedness represented by the Notes and the
payment of the principal of and interest on each and all of the Notes is hereby
expressly subordinated, to the extent and in the manner hereinafter set forth,
in right of payment to the prior payment in full of all Senior Indebtedness.
(b) Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization of the Company, whether in bankruptcy,
insolvency, reorganization or receivership proceedings, or upon an assignment
for the benefit of creditors or any other marshalling of the assets and
liabilities of the Company or otherwise, except a distribution in connection
with a merger or consolidation or a conveyance or transfer of all or
substantially all of the properties
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of the Company which complies with the requirements of Article Eight, or if an
event of default shall have occurred and be continuing with respect to any
Senior Indebtedness, or if the principal of the Notes shall have been declared
due and payable pursuant to Section 502 and such declaration shall not have been
rescinded and annulled as provided in said Section 502, then:
(1) the holders of all Senior Indebtedness shall first be entitled to
receive payment of the full amount due thereon in respect of principal and
interest, or adequate provision shall be made for such payment, before the
Holders of any of the Notes are entitled to receive any payment on account of
the principal of or interest on the indebtedness evidenced by the Notes;
(2) any payment by, or distribution of assets of, the Company of any kind
or character, whether in cash, property or securities (other than securities of
the Company as reorganized or readjusted or securities of the Company or any
other Corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in this Article
with respect to the Notes, to the payment of all Senior Indebtedness, provided
that the rights of the holders of Senior Indebtedness are not altered by such
reorganization or readjustment), to which the Holders of any of the Notes or the
Trustee would be entitled except for the provisions of this Article shall be
paid or delivered by the person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly
to the holders of Senior Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under which any instruments
evidencing any such Senior Indebtedness may have been issued, ratably according
to the aggregate amounts remaining unpaid on account of the Senior Indebtedness
held or represented by each, to the extent necessary to make payment in full of
all Senior Indebtedness remaining unpaid after giving effect to any concurrent
payment or distribution (or provision therefor) to the holders of such Senior
Indebtedness, before any payment or distribution is made to the Holders of the
indebtedness evidenced by the Notes or to the Trustee under this instrument; and
(3) in the event that, notwithstanding the foregoing, any payment by, or
distribution of assets of, the Company of any kind or character, whether such
payment shall be in cash, property or securities (other than securities of the
Company as reorganized or readjusted or securities of the Company or any other
Corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinate, at least to the extent provided in this Article with
respect to the Notes, to the payment of all Senior Indebtedness, provided that
the rights of the holders of Senior Indebtedness are not altered by such
reorganization or readjustment), and the
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Company shall have made payment to the Trustee or directly to the Holders of any
of the Notes before all Senior Indebtedness is paid in full, such payment or
distribution shall be paid over by the Trustee (if the Notice required by
Section 1309 hereof has been received by the Trustee) or by the Holders of any
Notes, to the representative or representatives or to the trustee or trustees of
such Senior Indebtedness under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably as
aforesaid, for application to the payment of all Senior Indebtedness remaining
unpaid until all such Senior Indebtedness shall have been paid in full, after
giving effect to any concurrent payment or distribution (or provision therefor)
to the holders of such Senior Indebtedness.
Section 1302. Subrogation.
Subject to the payment in full of all Senior Indebtedness, the Holders of
the Notes shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to such Senior Indebtedness until all
amounts owing on the Notes shall be paid in full, and, as between the Company,
its creditors other than holders of Senior Indebtedness, and the Holders of the
Notes, no such payment or distribution made to the holders of Senior
Indebtedness by virtue of this Article which otherwise would have been made to
the Holders of the Notes shall be deemed to be a payment by the Company on
account of the Senior Indebtedness, and no such payments or distributions to the
Holders of the Notes of cash, property or securities otherwise distributable to
the holders of Senior Indebtedness shall, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders of the Notes, be
deemed to be a payment by the Company on account of the Notes, it being
understood that the provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the Notes, on the
one hand, and the holders of Senior Indebtedness, on the other hand.
Section 1303. Obligation of Company Unconditional.
(a) Nothing contained in this Article or elsewhere in this Indenture or in
the Notes is intended to or shall impair, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders of the Notes, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders of the Notes the principal of and interest on the Notes as and when the
same shall become due and payable in accordance with their terms, or is intended
to or shall affect the relative rights of the Holders of the Notes and creditors
of the Company other than the holders of Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or the Holder of any Note from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness
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in respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
(b) Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee and the Holders of the Notes shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which any such dissolution, winding up, liquidation or reorganization proceeding
affecting the affairs of the Company is pending or upon a certificate of the
trustee in bankruptcy, receiver, assignee for the benefit of creditors,
liquidating trustee or agent or other person making any payment or distribution,
delivered to the Trustee or to the Holders of the Notes, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount paid or
distributed thereon and all other facts pertinent thereto or to this Article.
Section 1304. Payments on Notes Permitted.
Nothing contained in this Article or elsewhere in this Indenture, or in any
of the Notes, shall affect the obligation of the Company to make, or prevent the
Company from making, payment of the principal of and interest on the Notes in
accordance with the provisions hereof and thereof, except as otherwise provided
in this Article.
Section 1305. Effectuation of Subordination by Trustee.
Each Holder of Notes, by such Holder's acceptance thereof, authorizes and
directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee such Holder's attorney-in-fact for any and all
such purposes.
Section 1306. Knowledge of Trustee.
Notwithstanding the provisions of this Article or any other provisions of
this Indenture, the Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and it undertakes to perform or observe only such
of its covenants and obligations as are specifically set forth in this Article,
and no implied covenants or obligations with respect to the Senior Indebtedness
shall be read into this Indenture against the Trustee and the Trustee shall not
be charged with knowledge of the existence of any facts which would prohibit the
making of any payment of moneys to or by the Trustee, or the taking of any other
action by the Trustee, unless and until the Trustee shall have received written
notice thereof from the Company, any Holder of Notes, any Paying Agent of the
Company or the holder or representative of any class of Senior Indebtedness.
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Section 1307. Trustee May Hold Senior Indebtedness.
The Trustee shall be entitled to all the rights set forth in this Article
with respect to any Senior Indebtedness at the time held by it, to the same
extent as any other holder of Senior Indebtedness, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder.
Section 1308. Rights of Holders of Senior Indebtedness Not Impaired.
No right of any present or future holder of any Senior Indebtedness to
enforce the subordination herein shall at any time or in any way be prejudiced
or impaired by any act or failure to act on the part of the Company or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Section 1309. Notice to Trustee.
The Company shall give prompt written notice to a Responsible Officer of
the Trustee located at the Corporate Trust Office of any fact known to the
Company which would prohibit the making of any payment to or by the Trustee in
respect of the Notes. Notwithstanding the provisions of this Article or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Notes, unless and until a
Responsible Officer of the Trustee shall have received at its Corporate Trust
Office written notice thereof from the Company or a holder of Senior
Indebtedness or from any trustee therefor, and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Section 601, shall be
entitled in all respects to assume that no such facts exist; provided, however,
that if the Trustee shall not have received the notice provided for in this
Section at least three Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of or interest on any Note) then
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it during or after such three
Business Day period.
Subject to the provisions of Section 601, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee therefor) to establish that
such notice has been given by a holder of Senior Indebtedness (or a trustee
therefor). In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in
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any payment or distribution pursuant to this Article, the Trustee may request
that such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such Person, the extent
to which such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under this Article,
and if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
Nothing in this Article shall subordinate to Senior Indebtedness the claim
of, or payments to, the Trustee under or pursuant to Section 607.
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* * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
[SEAL] COMMERCIAL FEDERAL
CORPORATION
By
------------------------
Name:
Title:
Attest:
---------------------------
[SEAL] ▇▇▇▇▇▇ TRUST AND SAVINGS
BANK, AS TRUSTEE
By
------------------------
Name:
Title:
Attest:
---------------------------
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ )
: SS.:
COUNTY OF ▇▇▇▇▇▇▇ )
On the ____ day of _____________________________, 1996, before me
personally came ______________________________, to me known, who, being by me
duly ______________________________ sworn, did depose and say that he
is a ________________________________ of Commercial Federal Corporation, a
Nebraska corporation, one of the persons described in and who executed the
foregoing instrument; that he knows the seal of said Corporation; that the seal
affixed to said instrument is such Corporation's seal; that it was so affixed by
authority of the Board of Directors of said Corporation; and that he signed his
name thereto by like authority.
--------------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF ILLINOIS )
: SS.:
COUNTY OF ILLINOIS)
On the _______ day of ___________________________________, 1996,
before me personally came _____________________________, to me known, who,
being by me duly sworn, did depose and say that he is a ______________________
__________ of ______________, a ______________ corporation, one of the persons
described in and who executed the foregoing instrument; that he knows the seal
of said Corporation; that the seal affixed to said instrument is such
Corporation's seal; that it was so affixed by authority of the Board of
Directors of said Corporation; and that he signed his name thereto by like
authority.
--------------------------
Notary Public
[NOTARIAL SEAL]
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