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THIRD SUPPLEMENTAL INDENTURE among Xxxxxxxx Financial Corporation,
formerly called CVD Financial Corporation, a corporation incorporated
pursuant to the laws of the State of Delaware (the "Corporation"),
Xxxxxx Trust Company of New York ("Xxxxxx Trust"), a trust company
organized pursuant to the laws of the State of New York, and The Bank
of Nova Scotia Trust Company of New York ("The Bank of Nova Scotia"), a
trust company organized pursuant to the laws of the State of New York,
dated for reference May 13, 1997 (the "Supplemental Indenture") to the
CVD Financial 1993 Master Indenture made between the Corporation and
Xxxxxx Trust, dated August 26, 1993, as amended by a First Supplemental
Indenture dated November 30, 1993 and a Second Supplemental Indenture
dated October 23, 1996 (collectively, the "Indenture").
WHEREAS:
A. The Corporation and Xxxxxx Trust entered into the Indenture to
provide for the issuance of the Corporation's unsecured subordinated
variable rate bonds (the "Securities") to be issued in one or more
series as provided in the Indenture;
X. Xxxxxx Trust has provided notice in writing to the Corporation of
its intention to resign as Trustee under the Indenture;
C. The Corporation has approved the appointment of The Bank of Nova
Scotia to act as Trustee under the Indenture in place of Xxxxxx Trust
by a resolution of the board of directors of the Corporation dated May
13, 1997;
D. Section 610 of the Indenture provides that the resignation of a
Trustee under the Indenture shall not be effective until an appointed
successor Trustee executes, acknowledges and delivers to the
Corporation and the retiring Trustee an instrument accepting its
appointment as Trustee under the Indenture; and
E. Section 901 of the Indenture provides that the Corporation,
without the consent of any of the holders of the Securities, may enter
into one or more indentures supplemental to the Indenture in order to
evidence and provide for the acceptance of appointment under the
Indenture by a successor Trustee with respect to the Securities;
NOW THEREFORE THIS INDENTURE WITNESSES THAT the parties agree as
follows:
SECTION 1
Representations, Warranties and Covenants of the Corporation
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1.1 The Corporation represents, warrants and covenants to The Bank of
Nova Scotia that:
(a) it is validly organized and existing;
(b) the Securities were validly and lawfully issued;
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(c) it has performed or fulfilled each covenant, agreement and
condition on its part to be performed or fulfilled under the
Indenture;
(d) it has no knowledge of the existence of an Event of Default or
any event which, upon notice or lapse of time or both, would
become an Event of Default under the Indenture;
(e) it has not entered into any amendment or supplement to the
Indenture other than the First and Second Supplemental Indentures
referred to in the first paragraph of this Supplemental Indenture;
and
(f) it will continue to perform the obligations undertaken by it
under the Indenture.
SECTION 2
Resignation and Replacement of Trustee
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2.1 Pursuant to Section 610 of the Indenture, Xxxxxx Trust hereby
resigns as Trustee under the Indenture and is hereby discharged from
the trusts of the Indenture, such resignation to become effective on
the Effective Date (as defined herein).
2.2 The Corporation hereby appoints The Bank of Nova Scotia as
successor Trustee under the Indenture in the place and stead of Xxxxxx
Trust and with like effect as if originally named as Trustee under the
Indenture, such appointment to become effective on the Effective Date,
and The Bank of Nova Scotia hereby accepts such appointment.
2.3 Xxxxxx Trust hereby assigns, transfers and delivers to The Bank
of Nova Scotia, as successor Trustee, upon the trusts expressed in the
Indenture, all rights, powers, benefits, privileges and duties of
Xxxxxx Trust under the Indenture, and The Bank of Nova Scotia hereby
accepts such assignment, transfer and delivery, which is to become
effective on the Effective Date.
2.4 The parties hereto agree to sign, execute and deliver all such
documents and instruments and do such other acts as may be necessary or
advisable to give effect to the assignment, transfer and delivery by
Xxxxxx Trust to The Bank of Nova Scotia of all rights, powers,
benefits, privileges and duties under the Indenture referred to in
Section 2.3 hereof.
2.5 Xxxxxx Trust hereby represents, warrants and covenants to The
Bank of Nova Scotia that:
(a) it will make available to The Bank of Nova Scotia originals of
documents relating to the trust created by the Indenture and
information in the possession of its corporate trust department
relating to the administration and status thereof and will forward
to The Bank of Nova Scotia such documents or information as it and
The Bank of Nova Scotia shall agree;
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(b) it has not entered into any amendment or supplement to the
Indenture, other than the First and Second Supplemental Indentures
referred to in the first paragraph of this Supplemental Indenture;
(c) based on information known to the Responsible Officers of
Xxxxxx Trust, as Trustee, no Event of Default or event which, upon
notice or lapse of time or both, would become an Event of Default
under the Indenture exists; and
(d) the aggregate outstanding principal amount of the Securities
as of the date hereof is $45 million.
SECTION 3
Declaration and Interpretive Provisions
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3.1 This Supplemental Indenture is declared to be supplemental to the
Indenture and is to form part of and shall have the same effect as
though incorporated in the Indenture. The Indenture is a part of this
Supplemental Indenture and is, by this reference, included herein with
the same effect as though at length set forth herein. In this
Supplemental Indenture, unless there is something in the subject or
context inconsistent therewith, the expressions herein used shall have
the same meaning as corresponding expressions used in the Indenture and
all the provisions of the Indenture, except only so far as may be
inconsistent with the express provisions of this Supplemental
Indenture, shall apply to and have effect in connection with this
Supplemental Indenture.
SECTION 4
Acceptance of Trust
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4.1 The Bank of Nova Scotia represents that it has the qualifications
for a new Trustee required by the Indenture and the Trust Indenture Act
of 1939, as amended, and as successor Trustee hereby accepts the trusts
declared and provided in the Indenture and agrees to perform the same
upon the terms and conditions herein and in the Indenture.
SECTION 5
Effective Date
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5.1 This Supplemental Indenture will be effective from and after May
15, 1997 (the "Effective Date"), irrespective of the actual dates of
the execution hereof.
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SECTION 6
Enurement
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6.1 This Supplemental Indenture will enure to the benefit of and be
binding upon the parties hereto and their respective successors and
assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed effective as of the date set out herein.
XXXXXXXX FINANCIAL CORPORATION
(formerly CVD Financial Corporation)
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: Director
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XXXXXX TRUST COMPANY OF NEW YORK
By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
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Title: Assistant Vice President
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THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Secretary
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