INDENTURE
INDENTURE, dated as of February 5, 1997, between Republic Bancorp, Inc.,
a corporation duly organized and existing under the laws of the State of
Kentucky (the "Corporation"), having its principal office at 000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and Xxxxxx X. Xxxxxx, an individual, as
Trustee (herein called the "Trustee").
RECITALS OF THE CORPORATION
WHEREAS, Republic Capital Trust, a Delaware business trust (the
"Trust"), formed under the Declaration of Trust among the Corporation, as
trust sponsor, Xxxxxx X. Xxxxxx, as property trustee (the "Property
Trustee"), and Xxxxxx X. Xxxxxx, L. Xxx Xxxxxxxxxx, Xx., and A. Xxxxx Xxxxxx,
as regular trustees (the "Republic Trustees"), dated as of February 5, 1997
(as the same may be supplemented or amended from time to time in accordance
with its terms, the "Declaration"), pursuant to the subscription agreements
(the "Purchase Agreements"), among the Corporation, the Trust and the
subscribers named therein, will issue and sell up to 97,000 of its 8.5%
Preferred Securities (the "Preferred Securities") with a liquidation amount
of $100 per Preferred Security;
WHEREAS, the trustees of the Trust, on behalf of the Trust, will execute
and deliver to the Corporation Common Securities (the "Common Securities") of
the Trust, registered in the name of the Corporation, in an aggregate amount
equal to approximately three percent of the capitalization of the Trust (the
"Common Securities");
WHEREAS, the Trust will use the proceeds from the sale of the Preferred
Securities and the Common Securities to purchase from the Corporation 8.5%
Convertible Subordinated Debentures due 2027 (the "Debt Securities") of the
Corporation;
WHEREAS, the Corporation has duly authorized the creation of the Debt
Securities of the tenor and amount herein set forth and to provide therefor
the Corporation has duly authorized the execution and delivery of this
Indenture;
WHEREAS, so long as the Trust is a Holder of Debt Securities, and any
Preferred Securities are outstanding, the Declaration provides that the
holders of Preferred Securities may cause the Conversion Agent (as defined in
the Declaration) to [a] exchange such Preferred Securities for Debt
Securities held by the Trust and [b] immediately convert such Securities into
Common Stock of the Corporation; and
WHEREAS, all things necessary to make the Debt Securities, when executed
by the Corporation and authenticated and delivered hereunder and duly issued
by the Corporation, the valid obligations of the Corporation, and to make
this Indenture a valid agreement of the Corporation, in accordance with their
and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt
Securities by the holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all holders of the Debt Securities, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS.
The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes
of this Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section 1.01. All accounting terms
used herein and not expressly defined shall have the meanings assigned to
such terms in accordance with generally accepted accounting principles. The
words "herein," "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section
or other subdivision.
"Additional Interest" shall have the meaning set forth in Section 2.5.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10%
or more of the outstanding voting securities or other ownership interests of
the specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by, or under common control
with the specified Person, (d) a partnership in which the specified Person is
a general partner, (e) any officer or director of the specified Person, and
(f) if the specified Person is an individual, any entity of which the
specified Person is an officer, director or general partner.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar federal
or state law for the relief of debtors.
"Board of Directors" shall mean the board of directors or the executive
committee or any other duly authorized designated officers of the Corporation.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Corporation to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification.
"Business Day" shall mean, with respect to the Debt Securities, any day
other than a day on which federal or state banking institutions in
Louisville, Kentucky, are authorized or obligated by law, executive order or
regulation to close.
"Certificate" shall mean a certificate signed by the principal executive
officer, the principal financial officer or the principal accounting officer
of the Corporation.
"Common Securities" shall mean undivided beneficial interests in the
assets of the Trust which rank pari passu with Preferred Securities issued by
the Trust; provided, however, that upon the occurrence of an Event of
Default, the rights of holders of Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Preferred Securities.
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"Common Securities Guaranty" shall mean, in respect of the Trust, any
guarantee that the Corporation may enter into with any Person or Persons and
that operates directly or indirectly for the benefit of holders of Common
Securities of the Trust.
"Common Stock" means the Class A Common Stock of the Corporation.
"Compounded Interest" shall have the meaning set forth in Section 4.1.
"Corporation" shall mean Republic Bancorp, Inc., a Kentucky corporation,
and, subject to the provisions hereof, shall include its successors and
assigns.
"Custodian" shall mean any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Debt Security" or "Debt Securities" shall have the meaning stated in
recitals of this Indenture and more particularly means any debt security or
debt securities, as the case may be, authenticated and delivered under this
Indenture.
"Default" means any event, act or condition that with notice or lapse of
time, or both, would constitute an Event of Default.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Direct Action" means a proceeding directly instituted by a holder of
Preferred Securities for enforcement of payment to such holder of the
principal of or interest on the Debt Securities having a principal amount
equal to the aggregate liquidation amount of the Preferred Securities of such
holder on or after the respective due date specified in the Debt Securities,
if an "Event of Default" under the Declaration has occurred and is continuing
and such event is attributable to the failure of the Corporation to pay
interest or principal on the Debt Securities on the date such interest or
principal is otherwise payable (or in the case of redemption, on the
redemption date.)
"Dissolution Event" means that, subject to the receipt by the
Corporation of prior approval from the Board of Governors of the Federal
Reserve System or a Federal Reserve Bank (the "Federal Reserve") if then
required under applicable capital guidelines or policies of the Federal
Reserve, the Trust is to be dissolved in accordance with the Declaration, and
the Debt Securities are to be distributed to the holders of the Trust
Securities issued by the Trust pro rata in accordance with such Declaration.
"Event of Default" shall mean any event specified in Section 8.01,
continued for the period of time, if any, and after the giving of the notice,
if any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Indenture" shall mean this indenture as originally adopted or, if
amended or supplemented as herein provided, as so amended or supplemented, or
both, and shall include the form and terms of Debt Securities established as
contemplated hereunder.
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"Interest" shall include all interest payable on the Debt Securities
including any Additional Interest and Compounded Interest.
"Interest Payment Date," when used with respect to any installment of
interest on a Debt Security, shall mean the date specified in such Debt
Security or in this Indenture or in an indenture supplemental hereto as the
fixed date on which an installment of interest with respect to Debt
Securities is due and payable.
"Maturity Date" means April 1, 2027.
"Notice of Conversion" means the notice to be given by a holder of Trust
Securities to the Conversion Agent to exchange such Trust Securities for Debt
Securities and to convert such Debt Securities into Common Stock.
"Officers' Certificate" shall mean a certificate signed by the Chairman
of the Board, the President, any Vice President, and by the Treasurer, an
Assistant Treasurer, the Comptroller, an Assistant Comptroller, the Secretary
or an Assistant Secretary of the Corporation, and delivered to the Trust.
"Opinion of Counsel" shall mean an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Corporation.
"Original Issue Date" of any Debt Security (or any portion thereof)
shall mean the earlier of (a) the date of such Debt Security or (b) the date
of any Debt Security (or portion thereof) for which such Debt Security was
issued (directly or indirectly) on registration of transfer, exchange or
substitution.
The term "outstanding", when used with reference to Debt Securities,
shall mean, as of any particular time, all Debt Securities issued and
delivered under this Indenture, except
(a) Debt Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Debt Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust
with the Trustee or its fiduciary or shall have been set aside and
segregated in trust by the Corporation; provided that, if such Debt
Securities, or portions thereof, are to be redeemed prior to maturity
thereof, notice of such redemption shall have been given as provided
herein or provision shall have been made for giving such notice.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security delivered hereunder in lieu of a lost,
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destroyed or stolen Debt Security shall be deemed to evidence the same debt
and guarantee as the lost, destroyed or stolen Debt Security.
"Preferred Securities" shall mean undivided beneficial interests in the
assets of the Trust which rank pari passu with Common Securities issued by
such Trust; provided, however, that upon the occurrence of an Event of
Default, the rights of holders of Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Preferred Securities.
"Preferred Securities Guaranty" shall mean, in respect of the Trust, any
guaranty that the Corporation may enter into with or for the benefit of
holders of Preferred Securities of the Trust.
"Record Date" shall have the meaning set forth in the Debt Securities.
"Redemption Date" means the date fixed for redemption of Debt Securities
pursuant to this Indenture.
"Redemption Price" shall have the meaning set forth in Section 3.1.
"Securityholder," "holder of Debt Securities," or other similar terms,
shall mean any Person in whose name at the time a particular Debt Security is
registered on the register kept by the Corporation or the Trustee for that
purpose in accordance with the terms hereof.
"Senior Indebtedness" means, with respect to the Corporation, (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of
such obligor for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by such obligor; (ii)
all capital lease obligations of such obligor; (iii) all obligations of such
obligor issued or assumed as the deferred purchase price of property, all
conditional sale obligations of such obligor and all obligations of such
obligor under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business); (iv) all obligations of
such obligor for the reimbursement on any letter of credit, banker's
acceptance, security purchase facility or similar credit transaction; (v) all
obligations of the type referred to in clauses (i) through (iv) of other
Persons for the payment of which such obligor is responsible or liable as
obligor, guarantor or otherwise; and (vi) all obligations of the type
referred to in clauses (i) through (v) of other Persons secured by any lien
on any property or asset of such obligor (whether or not such obligation is
assumed by such obligor), except for any indebtedness between or among the
Corporation and any of its Affiliates and any other debt securities issued
pursuant to this Indenture and guarantees in respect of those debt
securities. Notwithstanding the forgoing, Senior Indebtedness shall not
include any portion of the amount necessary to pay all principal, premium and
interest, if any, on any indebtedness or obligation of the Corporation which
would have been paid to, and retained by, the holders of such subordinate
indebtedness (whether as a result of the receipt of payments by the holders
of such subordinate indebtedness from the Corporation or any other obligor
thereon or from any holders of, or trustee in respect of, other indebtedness
that is subordinate and junior in right of payment to such subordinate
indebtedness pursuant to any provision of such other indebtedness for the
payment over of amounts received on account of such other indebtedness to the
holders of such subordinate indebtedness) but for the fact that such
subordinate indebtedness is subordinated or junior in
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right of payment to trade accounts payable or accrued liabilities of the
Corporation arising in the ordinary course of business.
"Stated Maturity", when used with respect to any Debt Security or any
installment of interest thereon, means the date specified in such Debt
Security as the fixed date on which the principal, together with any accrued
and unpaid interest (including Compounded Interest), of such Debt Security or
such installment of interest is due and payable.
"Subsidiary" shall mean with respect to any Person, (i) any corporation
at least a majority of the outstanding voting stock of which is owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries,
or by such Person and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority of the
outstanding partnership or similar interests of which shall at the time be
owned by such Person, or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries and (iii) any limited partnership
of which such Person or any of its Subsidiaries is a general partner. For
the purposes of this definition, "voting stock" means shares, interests,
participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such power only
by reason of the occurrence of a contingency.
"Tax Event" has the meaning specified in Annex I to the Declaration.
"Trust" shall mean the Republic Capital Trust, a Delaware business
trust, or any other similar trust created for the purpose of issuing
Preferred Securities in connection with the issuance of Debt Securities under
this Indenture.
"Trust Securities" shall mean Common Securities and Preferred Securities
of the Trust.
"U.S. Government Obligations" shall mean securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case
under clauses (i) or (ii), are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued by a
bank or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
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 U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
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ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBT SECURITIES
SECTION 2.1. TERMS GENERALLY.
The Debt Securities are hereby authorized as a single series. The
aggregate principal amount of Debt Securities outstanding at any time shall
not exceed $10,000,000.
The Debt Securities shall be issued pursuant to an exemption from
registration under the Securities Act and a restricted securities legend
shall appear thereon, unless otherwise determined by the Corporation in
accordance with applicable law.
SECTION 2.2. MATURITY.
At the Maturity Date the Debt Securities shall mature and the principal
thereof shall be due and payable together with all accrued and unpaid
interest thereon including Compounded Interest and Additional Interest
thereon, if any.
SECTION 2.3. CERTIFICATION.
Debt Securities shall be issued in fully registered certificated form
without interest coupons. Principal and interest on Debt Securities will be
payable, the transfer of such Debt Securities will be registrable and such
Debt Securities will be exchangeable for Debt Securities bearing identical
terms and provisions at the office or agency of the Corporation; provided,
however, that payment of interest may be made at the option of the
Corporation by check mailed to the holder of any Debt Security at such
address as shall appear in the Debt Security Register for such series of Debt
Securities.
SECTION 2.4. DISSOLUTION EVENT.
(a) In connection with a dissolution of the Trust in accordance with
the Declaration pursuant to a Dissolution Event,
(i) the Debt Securities held by the Property Trustee may be
presented to the Corporation and any Preferred Security Certificate will be
deemed to represent beneficial interests in Debt Securities having an
aggregate principal amount equal to the aggregate liquidation amount of such
Preferred Securities until such Preferred Security Certificate is presented
to the Corporation for transfer or reissuance at which time such Preferred
Security Certificates will be canceled and a Debt Security previously held by
the Property Trustee registered in the name of the holder of the Preferred
Security Certificate or the transferee of the holder of such Preferred
Security Certificate, as the case may be, with an aggregate principal amount
equal to the aggregate liquidation amount of the Preferred Security
Certificate canceled, will be executed by the Corporation and delivered to
such holder.
(b) The Debt Securities may not be transferred except in compliance with
the restricted securities legend, applicable to such Debt Securities, set
forth herein, unless otherwise determined by the Corporation in accordance
with applicable law.
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SECTION 2.5. INTEREST.
(a) Interest on the Debt Securities shall be at the rate of Eight and
5/10 percent (8.5%) per annum. The amount of interest payable for any period
will be computed on the basis of a 360-day year of twelve 30-day months.
Except as provided in the following sentence, the amount of interest payable
for any period shorter than a full quarterly period for which interest is
computed, will be computed on the basis of the actual number of days elapsed
in such a period (assuming each full month elapsed in such period consists of
30 days). In the event that any date on which interest is payable on the
Debt Securities is not a Business Day, then payment of interest payable on
such date will be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on such date.
(b) If, at any time while the holder of any Debt Securities is the
Property Trustee, the Trust or Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing
authority, then, in any case, the Corporation will pay as additional interest
("Additional Interest") on the Debt Securities held by the Property Trustee,
such additional amounts as shall be required so that the net amounts received
and retained by such Trust and the Property Trustee after paying such taxes,
duties, assessments or other governmental charges will be equal to the
amounts the Trust and the Property Trustee would have received had no such
taxes, duties, assessments or other government charges been imposed.
ARTICLE III
REDEMPTION OF THE DEBT SECURITIES
SECTION 3.1. OPTIONAL REDEMPTION.
(a) The Corporation shall have the right to redeem the Debt Securities,
in whole or in part, from time to time, on or after April 1, 2002, at a
redemption price equal to 100% of the principal amount of the Debt Securities
plus any accrued and unpaid interest thereon to the date of such redemption
(the "Redemption Price"). Notwithstanding the foregoing, the Corporation
shall have the right to redeem the Debt Securities, in whole or in part, upon
a Dissolution Event (as defined in the Declaration) or a Tax Event, subject
to the terms of the Declaration.
Any redemption pursuant to this section will be made upon not less than
10 days nor more than 60 days notice given by the Corporation to the holder
of the Debt Securities, at the Redemption Price. The Corporation shall
notify the Trustee in writing of such redemption at least 10 days prior to
the date of such redemption. If Debt Securities are only partially redeemed
pursuant to this Section, Debt Securities shall be redeemed pro rata or by
lot or by any other method utilized by the Corporation. The Redemption Price
shall be paid prior to 12:00 noon, Louisville, Kentucky, time, on the date of
such redemption or at such earlier time as the Corporation determines,
provided that the Corporation shall deposit an amount sufficient to pay the
Redemption Price by 10:00 a.m., Louisville, Kentucky time, on the date such
Redemption Price is to be paid.
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SECTION 3.2. ELECTION TO REDEEM.
The election of the Corporation to redeem Debt Securities shall be
evidenced by a Board Resolution.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. EXTENSION PERIOD.
The Corporation shall have the right, at any time and from time to time
during the term of the Debt Securities, to defer payments of interest by
extending the interest payment period of the Debt Securities for a period not
exceeding 20 consecutive quarterly periods (the "Extension Period"), during
which Extension Period no interest shall be due and payable; PROVIDED, that
no Extension Period shall be initiated while accrued interest with respect to
prior, completed Extension Periods is unpaid, and PROVIDED, further that no
Extension Period shall extend beyond the maturity of the Debt Securities. In
the event that the Corporation exercises this right, then during any
Extension Period (a) the Corporation shall not declare or pay dividends on,
make a distribution with respect to, or redeem, purchase or acquire, or make
a liquidation payment with respect to, any of its capital stock or rights to
acquire such capital stock (other than (i) purchases or acquisitions of
shares of any such capital stock or rights to acquire such capital stock in
connection with the satisfaction by the Corporation of its obligations under
any employee benefit plans, (ii) as a result of a reclassification of the
Corporation's capital stock or rights to acquire such capital stock or the
exchange or conversion of one class or series of the Corporation's capital
stock or rights to acquire such capital stock for another class or series of
the Corporation's capital stock or rights to acquire such capital stock,
(iii) the purchase of fractional interests in shares of the Corporation's
capital stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged or (iv) dividends
and distributions made on the Corporation's capital stock or rights to
acquire such capital stock with the Corporation's capital stock or rights to
acquire such capital stock), (b) the Corporation shall not make any payment
of interest, principal or premium, if any, on or repay, repurchase or redeem
any debt securities issued by the Corporation that rank pari passu with or
junior to such Debt Securities and (c) the Corporation shall not make any
guarantee payments with respect to the foregoing (other than pursuant to the
Securities Guaranties, as defined in the Declaration). Prior to the
termination of any such Extension Period in respect of the Debt Securities,
the Corporation may further extend the interest payment period; provided that
each such Extension Period in respect of the Debt Securities, together with
all such previous and further extensions thereof, may not exceed 20
consecutive quarterly periods or extend beyond the Maturity Date. Upon the
termination of any Extension Period and the payment of all amounts then due,
the Corporation may commence a new Extension Period, subject to the above
requirements. The Corporation may prepay at any time all or any portion of
the interest accrued during an Extension Period.
SECTION 4.2. NOTICE OF EXTENSION.
(a) At the time the Corporation initiates an Extension Period, the
Corporation shall give written notice to the Regular Trustees and the holders
of the Debt Securities of its initiation of
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such Extension Period at least one Business Day before the Interest Payment
Date with respect to interest payments the payment of which is being deferred.
ARTICLE V
EXPENSES
SECTION 5.1. EXPENSES.
In connection with the offering, sale and issuance of the Debt
Securities and in connection with the sale of any Trust Securities by the
Trust, the Corporation, in its capacity as borrower with respect to the Debt
Securities, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of Debt Securities of any series;
(b) pay all costs and expenses of the Trustee hereunder and of the
Trust (including, but not limited to, costs and expenses relating to the
organization of such Trust, the offering, sale and issuance of the Trust
Securities, the fees and expenses of the Delaware Trustee, the costs and
expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing,
and disposition of Trust assets of the Trust);
(c) be primarily and fully liable for any indemnification obligations
arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or assets of the Trust) and all liabilities, costs
and expenses with respect to such taxes of the Trust.
SECTION 5.2. DELAWARE TRUSTEE.
Upon termination of the Declaration or the removal or resignation of the
Delaware Trustee, the Corporation shall pay to the Delaware Trustee all
amounts accrued to the date of such termination, removal or resignation.
ARTICLE VI
FORM OF DEBT SECURITY
The Debt Securities are to be substantially in the following form and
are expressly made a part of this Indenture:
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(FACE OF DEBT SECURITY)
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE
(THE "SECURITIES LAWS"). THESE SECURITIES (AND ANY SECURITIES INTO WHICH
THEY MAY BE CONVERTED) MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF REGISTRATION UNDER APPLICABLE SECURITIES LAWS,
OR THE AVAILABILITY OF AN EXEMPTION THEREFROM. THIS CERTIFICATE WILL NOT BE
TRANSFERRED ON THE BOOKS OF THE CORPORATION OR ANY TRANSFER AGENT ACTING ON
BEHALF OF THE CORPORATION EXCEPT UPON THE RECEIPT OF AN OPINION OF COUNSEL,
SATISFACTORY TO THE CORPORATION, THAT THE PROPOSED TRANSFER IS EXEMPT FROM
THE REGISTRATION REQUIREMENTS OF ALL APPLICABLE SECURITIES LAWS, OR THE
RECEIPT OF EVIDENCE, SATISFACTORY TO THE CORPORATION, THAT THE PROPOSED
TRANSFER IS THE SUBJECT OF AN EFFECTIVE REGISTRATION STATEMENT UNDER ALL
APPLICABLE SECURITIES LAWS.
NO. 01 PRINCIPAL AMOUNT $__________
REPUBLIC BANCORP, INC.
8.5% SUBORDINATED DEFERRABLE INTEREST DEBT SECURITY DUE 2027
REPUBLIC BANCORP, INC., a Kentucky corporation (the "Corporation"), which
term includes any successor corporation under the Indenture hereinafter
referred to, for value received, hereby promises to pay to Republic Capital
Trust, a Delaware business trust, or registered assigns, the principal sum of
Ten Million Dollars ($10,000,000) on April 1, 2027, and to pay interest on
said principal sum from [THE DATE OF ISSUE], 1997, or from the most recent
interest payment date (each such date, an "Interest Payment Date") to which
interest has been paid or duly provided for, quarterly (subject to deferral
as set forth herein) in arrears on January 1, April 1, July 1 and October 1
of each year commencing April 1, 1997, at the rate of Eight and 5/10 Per Cent
(8.5%) per annum until the principal hereof shall have become due and
payable, and on any overdue principal and premium, if any, and (without
duplication and to the extent that payment of such interest is enforceable
under applicable law) on any overdue installment of interest at the same rate
per annum compounded quarterly. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year of
twelve 30-day months. In the event that any date on which interest is
payable on this Debt Security is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any
such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Debt Security (or one or
more Predecessor Securities, as defined in said Indenture) is registered at
the close of business on the Record Date for such interest installment, which
shall be the close of business on the 15th Business Day next preceding such
Interest Payment Date. Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the registered
holders on such Record Date and may be paid to the Person in whose name this
Debt Security (or one or more Predecessor Securities) is registered at the
close of business on a special record date to be fixed by the Corporation for
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the payment of such defaulted interest, notice whereof shall be given to the
registered holders of Debt Securities not less than 10 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. The principal of (and premium,
if any) and the interest on this Debt Security shall be payable at the office
or agency of the Corporation (or other paying agent appointed by the
Corporation) maintained for that purpose in any coin or currency of the
United States of America that at the time of payment is legal tender for
payment of public and private debts; PROVIDED, however, that payment of
interest may be made at the option of the Corporation by check mailed to the
registered holder at such address as shall appear in the Security Register.
The indebtedness evidenced by this Debt Security is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debt Security is
issued subject to the provisions of the Indenture with respect thereto. Each
holder of this Debt Security, by accepting the same, agrees to and shall be
bound by the provisions of the Indenture. Each holder hereof, by his or her
acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said provisions.
The provisions of this Debt Security are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
executed.
REPUBLIC BANCORP, INC. Dated: __________, 1997
By:_____________________________________
Name: __________________________________
Title:__________________________________
Attest__________________________________
Name:___________________________________
Title:__________________________________
[Text of Reverse Side]
This Debt Security of the Corporation is issued under and pursuant to
the Indenture between the Corporation and Xxxxxx X. Xxxxxx, as trustee, dated
February 5, 1997 (the "Indenture"), to which Indenture reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Corporation and the holders of the
Debt Securities (referred to herein as the "Debt Securities") of which this
Debt Security is a part. The summary of the terms of this Debt Security
contained herein does not
12
purport to be complete and is qualified by reference to the Indenture. The
Debt Securities are limited in aggregate principal amount as specified in
said Indenture.
The Corporation shall have the right to redeem this Debt Security at the
option of the Corporation, in whole or in part at any time on or after April
1, 2002 (an "Optional Redemption"), at the redemption price (the "Redemption
Price") equal to the principal amount being redeemed, plus accrued and unpaid
interest to the redemption date which shall be paid prior to 12:00 noon,
Louisville, Kentucky time, on the date of such redemption or at such earlier
time as the Corporation determines. In addition, the Corporation has the
right to redeem the Debt Securities, in whole or in part, at any time at the
Redemption Price upon the occurrence, and during the continuation, of any of
the following events: (i) the Republic Trustees shall have received an
opinion of independent counsel experienced in practice under the federal
securities laws that there is more than an insubstantial risk that the Trust
is or will be considered an Investment Company or (ii) the Board of Governors
of the Federal Reserve System or a Federal Reserve Bank (the "Federal
Reserve") shall have advised the Debt Issuer that the Preferred Securities
are not or will be considered not to be "Tier 1 Capital" of the Debt Issuer
under the regulations, policies and guidelines of the Federal Reserve or
(iii) a Tax Event. Any redemption pursuant to this paragraph will be made
upon not less than 10 days nor more than 60 days notice, at the Redemption
Price. If the Debt Securities are only partially redeemed by the Corporation
pursuant to an Optional Redemption, the Debt Securities will be redeemed pro
rata or by lot or by any other method utilized by the Corporation.
On the terms and subject to the conditions set forth in the Indenture,
the Holder of the Debt Securities has the right, exercisable at any time on
or before 5:00 p.m. (Louisville, Kentucky time) on the Business Day
immediately preceding the date of repayment of such Securities, whether at
maturity or upon redemption, to convert such Securities into fully paid and
nonassessable whole shares of Republic Common Stock at a conversion rate of 5
shares of Republic Common Stock for each $100 in aggregate principal amount
of Securities, subject to adjustment under certain circumstances, as provided
in the Indenture.
In the event of redemption of this Debt Security in part only, a new
Debt Security or Debt Securities for the unredeemed portion hereof will be
issued in the name of the holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debt Securities may
be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Corporation, with the
consent of the holders of not less than a majority in aggregate principal
amount of the Debt Securities affected at the time outstanding, as specified
in the Indenture, to execute supplemental indentures for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying
in any manner the rights of the holders of the Debt Securities; provided,
however, that no such supplemental indenture shall among other things, (i)
extend the fixed maturity of any Debt Securities, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof, without
the consent of the holder
13
of each Debt Security so affected, or (ii) reduce, the aforesaid percentage
of Debt Securities, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holder of each Debt
Security then outstanding and affected thereby. The Indenture also contains
provisions permitting the holders of a majority in aggregate principal amount
of the Debt Securities at the time outstanding affected thereby, on behalf of
all of the holders of the Debt Securities, to waive any past default in the
performance of any of the covenants contained in the Indenture, or
established pursuant to the Indenture, and its consequences, except a default
in the payment of the principal of or premium, if any, or interest on any of
the Debt Securities. Any such consent or waiver by the registered holder of
this Debt Security (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and
owners of this Debt Security and of any Debt Security issued in exchange
herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debt Security.
No reference herein to the Indenture and no provision of this Debt
Security or of the Indenture shall alter or impair the obligation of the
Corporation, which is absolute and unconditional, to pay the principal of and
interest on this Debt Security at the time and place and at the rate and in
the money herein prescribed.
The Corporation shall have the right at any time during the term of the
Debt Securities and from time to time to extend the interest payment period
of the Debt Securities for up to 20 consecutive quarterly periods (each, an
"Extension Period") as provided in the Indenture. During the Extension
Period no interest shall be due and payable; provided that no Extension
Period may extend beyond the Maturity Date. To the extent permitted by
applicable law, interest on the Debt Securities, the payment of which has
been deferred, will bear interest thereon compounded quarterly. At the end
of an Extension Period, the Corporation shall pay all interest accrued and
unpaid on the Debt Securities, including any Additional Interest and
Compounded Interest, that shall be payable.
As provided in the Indenture and subject to certain limitations herein
and therein set forth, this Debt Security is transferable by the registered
holder hereof on the Debt Security Register of the Corporation, upon
surrender of this Debt Security for registration of transfer at the office or
agency of the Corporation in Louisville, Kentucky, accompanied by a written
instrument or instruments of transfer in form satisfactory to the Corporation
duly executed by the registered holder hereof or his attorney duly authorized
in writing, and thereupon one or more new Debt Securities of authorized
denominations and for the same aggregate principal amount and series will be
issued to the designated transferee or transferees. No service charge will
be made for any such transfer, but the Corporation may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
relation thereto.
Prior to due presentment for registration of transfer of this Debt
Security, the Corporation may deem and treat the registered holder hereof as
the absolute owner hereof for the purpose of receiving payment of or on
account of the principal hereof and premium, if any, and interest due hereon
and for all other purposes, and the Corporation shall not be affected by any
notice to the contrary.
14
No recourse shall be had for the payment of the principal or premium on,
if any or the interest on this Debt Security, or for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the Indenture,
against any incorporator, stockholder, officer or director, past, present or
future, as such, of the Corporation or of any predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration
for, the issuance hereof, expressly waived and released.
The Debt Securities are issuable only in registered form without coupons
in denominations of $100 and any integral multiple thereof. All terms used
in this Debt Security that are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF KENTUCKY SHALL GOVERN THE INDENTURE
AND THE DEBT SECURITIES WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
NOTICE OF CONVERSION
To: Republic Bancorp, Inc.
The undersigned owner of this Security hereby irrevocably exercises
the option to convert this Security, or the portion below designated, into
Class A Common Stock (the "Common Stock") of Republic Bancorp, Inc. (the
"Company") in accordance with the terms of the Indenture referred to in the
Security, between the Company and Xxxxxx X. Xxxxxx, as Trustee, and directs
that the shares issuable and deliverable upon conversion, together with any
check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been indicated in
the assignment below. If shares are to be issued in the name of a person
other than the undersigned, the undersigned will pay all transfer taxes
payable with respect thereto.
Date:_______________
Principal Amount of Securities to be converted ($100 or integral multiples
thereof): _______________
If a name or names other than the undersigned, please indicate in the spaces
below the name or names in which the shares of Common Stock are to be issued,
along with the address or addresses of such person or persons.
____________________________________________________
____________________________________________________
____________________________________________________
____________________________________________________
(Signed exactly as your name appears on the Security) (for conversion only)
15
Please print or typewrite name and address, including zip code, and social
security or other identifying number.
____________________________________________________
____________________________________________________
____________________________________________________
Signature Guarantee:*_______________________
*Signature must be guaranteed by an "eligible institution," that is a bank,
stockbroker, savings and loan association or credit union meeting the
requirements of the Security Registrar, which requirements include membership
or participation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)
ARTICLE VII
PARTICULAR COVENANTS OF THE CORPORATION
SECTION 7.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Corporation covenants and agrees for the benefit of holders of Debt
Securities that it will duly and punctually pay or cause to be paid the
principal of and premium, if any, and interest on each of the Debt Securities
at the place, at the respective times and in the manner provided in such Debt
Securities, except with respect to its right to extend such payments as
described herein.
SECTION 7.02. COVENANTS AS TO THE TRUST.
In the event Debt Securities are issued to the Trust, for so long as
such Trust Securities remain outstanding, the Corporation will (i) maintain
100% direct ownership of the Common Securities of the Trust, (ii) use its
reasonable efforts to cause the Trust (a) to remain a business trust, except
in connection with a distribution of Debt Securities, the redemption of all
of the Trust Securities of the Trust or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of the Trust, and (b) to
otherwise continue not to be treated as an association taxable as a
corporation or partnership for United States federal income tax purposes, and
(iii) use its reasonable efforts to cause each holder of Trust Securities to
be treated as owning an undivided beneficial interest in the Debt Securities.
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ARTICLE VIII
REMEDIES OF THE SECURITYHOLDERS
IN EVENT OF DEFAULT
SECTION 8.01. EVENTS OF DEFAULT.
The following Events of Default with respect to Debt Securities or such
other events as may be established with respect to the Debt Securities shall
be "Events of Default" with respect to Debt Securities:
(a) The Corporation defaults in the payment of any interest upon any
Debt Securities when it becomes due and payable, and continuance of such
default for a period of ten (10) days; provided, however, that a valid
extension of an interest payment period by the Corporation in accordance with
the terms of this Indenture shall not constitute a default in the payment of
interest for this purpose; or
(b) The Corporation defaults in the payment of all or any part of the
principal of (or premium, if any, on) any Debt Securities as and when the
same shall become due and payable either at maturity, upon redemption, by
declaration or otherwise; provided, however, that a valid extension of the
maturity of such Debt Securities in accordance with the terms of this
Indenture shall not constitute a default in the payment of principal or
premium, if any; or
(c) The Corporation defaults in the performance, or breach, of any of
its covenants or warranties in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such default or breach
for a period of 90 days after there has been given, by registered or
certified mail, to the Corporation by the Trustee or by the holders of at
least 25% in principal amount of the outstanding Debt Securities, a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(d) A court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Corporation in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Corporation or for any
substantial part of its property, or ordering the winding-up or liquidation
of its affairs and such decree or order shall remain unstayed and in effect
for a period of 90 consecutive days; or
(e) The Corporation shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary
case under any such law, or shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Corporation or of any
substantial part of its property, or shall make any general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due; or
(f) As to Debt Securities issued to the Trust, such Trust shall have
voluntarily or involuntarily dissolved, wound-up its business or otherwise
terminated its existence except in connection with (i) the distribution of
the Debt Securities to holders of such Trust Securities in
17
liquidation of their interests in the Trust, (ii) the redemption of all of
the outstanding Trust Securities of the Trust or (iii) certain mergers,
consolidations or amalgamations, each as permitted by the Declaration of the
Trust.
If an Event of Default occurs and is continuing with respect to the Debt
Securities, then, and in each and every such case, unless the principal of
all of the Debt Securities shall have already become due and payable, the
Trustee or the holders of not less than 25% in aggregate principal amount of
the Debt Securities then outstanding hereunder, by notice in writing to the
Corporation, may declare the entire principal of all Debt Securities and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
SECTION 8.02. TRUSTEE MAY ENFORCE CLAIMS.
All rights of action and claims under this Indenture or the Debt
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Debt Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the holders of the Debt
Securities in respect of which such judgment has been recovered.
SECTION 8.03. APPLICATION OF MONEYS COLLECTED.
Any moneys collected by the Trustee or the holders of the Debt
Securities following an Event of Default shall be applied in the following
order:
First: To the payment of costs and expenses of collection and reasonable
compensation to the Trustee and the holders of the Debt Securities, their
agents, attorneys and counsel, and of all other expenses and liabilities
incurred, and all advances made, by them except as a result of their
negligence or bad faith;
Second: To the payment of all Senior Indebtedness of the Corporation if
and to the extent required herein;
Third: In case the principal of the outstanding Debt Securities in
respect of which moneys have been collected shall not have become due and be
unpaid, to the payment of the amounts then due and unpaid upon Debt
Securities for principal (and premium, if any), and interest on the Debt
Securities, in respect of which or for the benefit of which money has been
collected, ratably, without preference or priority of any kind, according to
the amounts due on such Debt Securities for principal (and premium, if any)
and interest, respectively; and
Fourth: The balance, if any, to the Corporation.
18
SECTION 8.04. REMEDIES CUMULATIVE AND CONTINUING.
Except as otherwise provided herein, all powers and remedies given by
this Article to the Securityholders or the Trustee shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any other powers
and remedies available to the holders of the Debt Securities, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise established
with respect to such Debt Securities, and no delay or omission of the Trustee
or any holder of any of the Debt Securities to exercise any right or power
accruing upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or power, or shall be construed to be a waiver of
any such default or an acquiescence therein; and every power and remedy given
by this Article or by law to the Trustee or the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by
the Trustee and the Securityholders.
SECTION 8.05. CONTROL BY HOLDERS.
The holders of a majority in principal amount of the Debt Securities
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee; provided, that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture; and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 8.06. ENFORCEMENT BY HOLDERS OF PREFERRED SECURITIES.
If an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Corporation to pay interest or principal
on the Debt Securities on the date such interest or principal is otherwise
payable, the Corporation acknowledges that, in such event, a holder of
Preferred Securities may institute a Direct Action for the payment on or
after the respective due date specified in the Debt Securities. The
Corporation may not amend this Indenture to remove the foregoing right to
bring a Direct Action (or to change this Section) without the prior written
consent of all the holders of Preferred Securities. Notwithstanding any
payment made to such holder of Preferred Securities by the Corporation in
connection with a Direct Action, the Corporation shall remain obligated to
pay the principal of and interest on the Debt Securities (including
Additional Payments, if any) held by the Trust or the Property Trustee and
the Corporation shall be subrogated to the rights of the holder of such
Preferred Securities with respect to payments on the Preferred Securities to
the extent of any payments made by the Corporation to such holder in any
Direct Action. The holders of Preferred Securities will not be able to
exercise directly any other remedy available to the holders of the Debt
Securities.
SECTION 8.07. WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in principal amount of the Debt
Securities may on behalf of the holders of all the Debt Securities waive any
past default hereunder and its consequences, except a default in the payment
of the principal of or interest (including Additional Payments, if
19
any) on any Debt Security (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Trustee).
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.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS.
The Board of Directors of the Corporation may adopt an indenture
supplemental hereto, without the consent of the Securityholders, for one or
more of the following purposes:
(a) evidence the succession of another corporation to the Corporation,
or successive successions, and the assumption by the successor corporation of
the covenants, agreements and obligations of the Corporation, pursuant to
Article Ten hereof,
(b) to add to the covenants of the Corporation such further covenants,
restrictions or conditions for the protection of the holders of Debt
Securities as such Board of Directors shall consider to be for the protection
of the holders of such Securities, and to make the occurrence, or the
occurrence and continuance, of a default in any of such additional covenants,
restrictions or conditions a default or an Event of Default permitting the
enforcement of all or any of the several remedies provided in this Indenture
as herein set forth; provided, however, that in respect of any such
additional covenant, restriction or condition such supplemental indenture may
provide for a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the
remedies available to the Securityholders upon such default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture; provided that any such action shall not adversely affect the
interests of the holders of the Debt Securities;
(e) to make any change that does not adversely affect the rights of any
Securityholder in any material respect; or
(f) to provide for the issuance of and establish the form of the Debt
Securities, to establish the form of any certifications required to be issued
pursuant to the terms of this Indenture or the Debt Securities, or to add to
the rights of the holders of Debt Securities.
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.
With the consent of the holders of not less than a majority in aggregate
principal amount of the Debt Securities at the time outstanding, the Board of
Directors of the Corporation may from
20
time to time and at any time adopt a supplemental indenture or indentures for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders of the Debt
Securities so affected; provided, however, that no such supplemental
indenture shall without the consent of the holders of each Debt Security then
outstanding and affected thereby (i) extend the fixed maturity of any Debt
Security or reduce the rate or extend the time of payment of interest
thereon, or reduce the principal amount thereof or any premium thereon, or
reduce any amount payable on redemption thereof or make the principal thereof
or any interest or premium thereon payable in any coin or currency other than
that provided in the Debt Securities, or impair or affect the right of any
Securityholder to institute suit for payment thereof or the right of
repayment, if any, at the option of the holder, without the consent of the
holder of each Debt Security so affected, or (ii) reduce the aforesaid
percentage of Debt Securities the holders of which are required to consent to
any such supplemental indenture, without the consent of the holders of each
Debt Security then affected; provided, further, that if the Debt Securities
are held by the Trust, such supplemental indenture shall not be effective
until the holders of a majority in liquidation amount of Trust Securities
shall have consented to such supplemental indenture; provided further, that
if the consent of the holder of each outstanding Debt Security is required,
such supplemental indenture will not be effective until each holder of the
Trust Securities of the Trust shall have consented to such supplemental
indenture.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. CORPORATION MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
Nothing contained in this Indenture or in any of the Debt Securities
shall prevent any consolidation or merger of the Corporation with or into any
other corporation or corporations (whether or not affiliated with the
Corporation), or successive consolidations or mergers in which the
Corporation, or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or other disposition of the
property of the Corporation, or its successor or successors as an entirety,
or substantially as an entirety, to any other corporation (whether or not
affiliated with the Corporation, or its successor or successors) authorized
to acquire and operate the same; provided, however, the Corporation hereby
covenants and agrees that, upon any such consolidation, merger, sale,
conveyance, transfer or other disposition, the due and punctual payment, in
the case of the Corporation, of the principal of (premium, if any) and
interest on all of the Debt Securities in accordance with their terms
according to their tenor and the due and punctual performance and observance
of all the covenants and conditions of this Indenture with respect thereto to
be kept or performed by the Corporation, shall be expressly assumed, by
supplemental indenture by the entity formed by such consolidation, or into
which the Corporation, shall have been merged, or by the entity which shall
have acquired such property.
SECTION 10.02. SUCCESSOR CORPORATION TO BE SUBSTITUTED.
In case of any such consolidation, merger, sale, conveyance, transfer or
other disposition and upon the assumption by the successor corporation, by
supplemental indenture, of, in the case of the Corporation, the due and
punctual payment of the principal of and premium, if any, and interest on all
of the Debt Securities and the due and punctual performance and observance of
21
all of the covenants and conditions of this Indenture to be performed or
observed by the Corporation, such successor corporation shall succeed to and
be substituted for the Corporation, with the same effect as if it had been
named herein as the Corporation, and thereupon the predecessor corporation
shall be relieved of any further liability or obligation hereunder or upon
the Debt Securities. Such successor corporation thereupon may cause to be
signed, and may issue either in its own name or in the name of the
Corporation, any or all of the Debt Securities issuable hereunder which
theretofore shall not have been signed by the Corporation. All the Debt
Securities so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Debt Securities theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of such
Debt Securities had been issued at the date of the execution hereof.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. DISCHARGE OF INDENTURE.
When (a) the Corporation shall cancel all Debt Securities (other than
any Debt Securities which shall have been destroyed, lost or stolen and which
shall have been replaced or paid as provided herein), or (b) all the Debt
Securities not theretofore canceled shall have become due and payable, or are
by their terms to become due and payable within one year or are to be called
for redemption within one year, and the Corporation shall deposit in trust,
funds sufficient to pay at maturity or upon redemption all of the Debt
Securities (other than any Debt Securities which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided herein)
not theretofore canceled, including principal and premium, if any, and
interest due or to become due to such date of maturity or redemption date, as
the case may be, then this Indenture shall cease to be of further effect
except for such provisions as are necessary in order to accomplish the
orderly and final payment of the Debt Securities.
SECTION 11.02. DEPOSITED MONEYS AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST.
All moneys deposited pursuant to Section 7.01 shall be held in trust and
applied to the payment, either directly or through any paying agent
(including the Corporation if acting as its own paying agent), to the holders
of the particular Debt Securities for the payment of which such moneys or
U.S. Government Obligations have been deposited in trust, of all sums due and
to become due thereon for principal, premium, if any, and interest.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01. INDENTURE AND DEBT SECURITIES SOLELY CORPORATE OBLIGATIONS.
No recourse for the payment of the principal of or premium, if any, or
interest on any Debt Security, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Corporation in this Indenture or in any supplemental
indenture or in any such Debt Security, or because of the creation of any
22
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Corporation or of any successor corporation of the Corporation, either
directly or through the Corporation or any successor corporation of the
Corporation, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of the Debt Securities.
ARTICLE XIII
CONVERSION OF DEBT SECURITIES
SECTION 13.01. CONVERSION RIGHTS.
Subject to and upon compliance with the provisions of this Article, the
Debt Securities are convertible, at the option of the holder, at any time on
or before 5:00 p.m. (Louisville, Kentucky time) on the Business Day
immediately preceding the date of repayment of such Debt Securities, whether
at maturity or upon redemption, into fully paid and nonassessable shares of
Common Stock of the Corporation at a conversion rate of 5 shares of Common
Stock for each $100 in aggregate principal amount of Debt Securities (equal
to a conversion price of $20 per share of Common Stock), subject to
adjustment as described in this Article XIII. A holder of Securities may
convert any portion of the principal amount of the Debt Securities into that
number of fully paid and nonassessable shares of Common Stock (calculated as
to each conversion to the nearest 1/100th of a share) obtained by dividing
the principal amount of the Debt Securities to be converted by such
conversion price. In case a Debt Security or portion thereof is called for
redemption, such conversion right in respect of the Debt Security or portion
so called shall expire at 5:00 p.m. (Louisville, Kentucky time) on the
Business Day immediately preceding the corresponding Redemption Date, unless
the Corporation defaults in making the payment due upon redemption.
SECTION 13.02. CONVERSION PROCEDURES.
(a) To convert all or a portion of the Debt Securities, the holder
thereof shall deliver to the Conversion Agent an irrevocable notice of
conversion setting forth the principal amount of Debt Securities to be
converted, together with the name or names, if other than the holder, in
which the shares of Common Stock should be issued upon conversion and
surrender to the Conversion Agent the Debt Securities to be converted, duly
endorsed or assigned to the Corporation or in blank. In addition, a holder of
Trust Securities may exercise its right under the Declaration to convert such
Trust Securities into Common Stock by delivering to the Conversion Agent an
irrevocable Notice of Conversion setting forth the information called for by
the preceding sentence and directing the Conversion Agent (i) to exchange
such Trust Security for a portion of the Debt Securities held by the Trust
(at an exchange rate of $100 liquidation amount of Debt Securities for each
Trust Security) and (ii) to immediately convert such Debt Securities, on
behalf of such holder, into Common Stock of the Corporation pursuant to this
Article XIII and surrendering such Trust Securities, duly endorsed or
assigned to the Corporation or in blank. So long as any Trust Securities are
outstanding, the Trust shall not convert any Debt Securities except pursuant
to a Notice of Conversion delivered to the Conversion Agent by a holder of
Trust Securities.
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In the case of any Debt Security which is converted after any Record
Date and on or prior to the next succeeding Interest Payment Date, interest
whose Stated Maturity is on such Interest Payment Date shall be payable on
such Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at 5:00 p.m. (Louisville, Kentucky time) on such Record Date.
Except as otherwise expressly provided in this section, interest whose Stated
Maturity is after the date of conversion of such Debt Security shall not be
payable, and the Corporation shall not make nor be required to make any other
payment, adjustment or allowance with respect to accrued but unpaid interest
on the Debt Securities being converted, which shall be deemed to be paid in
full. Subject to any right of the holder of such Debt Security or any
Predecessor Security to receive interest as provided in this section, the
Corporation's delivery upon conversion of the fixed number of shares of
Common Stock into which the Debt Securities are convertible (together with
the cash payment, if any, in lieu of fractional shares) shall be deemed to
satisfy the Corporation's obligation to pay the principal amount at Maturity
of the portion of Debt Securities so converted and any unpaid interest
accrued on such Debt Securities at the time of such conversion. If any Debt
Security called for redemption is converted (and any interest payable in
respect of such converted Debt Security pursuant to this section shall have
been paid in full), any money deposited with the Trustee or with any paying
agent or so segregated and held in trust for the redemption of such Debt
Security shall (subject to any right of the holder of such Debt Security or
any Predecessor Security to receive interest as provided in this section) be
paid to the Corporation or, if then held by the Corporation, shall be
discharged from such trust.
If a Notice of Conversion is delivered after the Record Date and prior
to the subsequent Interest Payment Date, the holder will be entitled to
receive the interest payable on the subsequent Interest Payment Date on the
portion of Debt Securities to be converted notwithstanding the conversion
thereof prior to such Interest Payment Date. If a Notice of Conversion is
delivered during an Extension Period and after the Trust (or, after
liquidation of the Trust, the Trustee) has mailed a notice of redemption with
respect to the Debt Securities that are converted, all accrued and unpaid
interest on such Debt Securities (including Compounded Interest, if any) to
the most recent Interest Payment Date prior to the date of such conversion,
whether or not such Interest Payment Date falls in such Extension Period (or,
if the Notice of Conversion is delivered (A) during an Extension Period, (B)
on or prior to an Interest Payment Date as to which the payment of interest
is to be deferred as a result of such Extension Period and (C) after the
Record Date for the Interest Payment Date referred to in clause (B) above,
all accrued and unpaid interest on such Debt Securities (including Compounded
Interest, if any) to such Interest Payment Date) shall be distributed to the
holder who converts such Debt Securities, which payment shall be made on the
redemption date fixed for redemption. Except as otherwise set forth above in
this section, in the case of any Debt Security which is converted, interest
whose Stated Maturity is after the date of conversion of such Debt Security
shall not be payable, and the Corporation shall not make nor be required to
make any other payment, adjustment or allowance with respect to accrued but
unpaid interest on the Debt Securities being converted, which shall be deemed
to be paid in full. If any Debt Security called for redemption is converted,
any money deposited with the Trustee or with any paying agent or so
segregated and held in trust for the redemption of such Debt Security shall
(subject to any right of the holder of such Debt Security or any Predecessor
Security to receive interest as provided in this section) be paid to the
Corporation or, if then held by the Corporation, shall be discharged from
such trust.
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Each conversion shall be deemed to have been effected immediately prior
to 5:00 p.m. (Louisville, Kentucky time) on the day on which the Notice of
Conversion was received (the "Conversion Date") by the Conversion Agent from
the holder or from a holder of the Preferred Securities effecting a
conversion thereof pursuant to its conversion rights under the Declaration,
as the case may be. The Person or Persons entitled to receive the Common
Stock issuable upon such conversion shall be treated for all purposes as the
record holder or holders of such Common Stock as of the Conversion Date. As
promptly as practicable on or after the Conversion Date, the Corporation
shall issue and deliver at the office of the Conversion Agent, unless
otherwise directed by the holder in the Notice of Conversion, a certificate
or certificates for the number of full shares of Common Stock issuable upon
such conversion, together with the cash payment, if any, in lieu of any
fraction of any share to the Person or Persons entitled to receive the same.
The Conversion Agent shall deliver such certificate or certificates to such
Person or Persons.
(b) No fractional shares of Common Stock will be issued as a result of
conversion, but in lieu thereof, the Corporation shall pay to the Conversion
Agent a cash adjustment based on the last reported sale price of the Common
Stock on the Conversation Date (or if such date is not a trading date, on the
next trading date) if the Common Stock is then traded on a national
securities exchange or is subject to quotation on an inter-dealer automated
quotation system, or otherwise based upon the conversion price. The
Conversion Agent in turn will make such payment, if any, to the holder of the
Debt Securities or the holder of the Trust Securities so converted.
(c) In the event of the conversion of any Debt Security in part only, a
new Debt Security or Debt Securities for the unconverted portion thereof will
be issued in the name of the holder thereof upon the cancellation thereof.
(d) In effecting the conversion transactions described in this Section,
the Conversion Agent is acting as agent of the holders of Trust Securities
(in the exchange of Trust Securities for Debt Securities) and as agent of the
holders of Debt Securities (in the conversion of Debt Securities into Common
Stock), as the case may be, directing it to effect such conversion
transactions. The Conversion Agent is hereby authorized (i) to exchange Debt
Securities held by the Trust from time to time for Trust Securities in
connection with the conversion of such Trust Securities in accordance with
this Article XIII and (ii) to convert all or a portion of the Debt Securities
into Common Stock and thereupon to deliver such shares of Common Stock in
accordance with the provisions of this Article XIII and to deliver to the
Property Trustee a new Debt Security or Debt Securities for any resulting
unconverted principal amount. If the Property Trustee no longer holds Debt
Securities, the Trustee shall act as Conversion Agent hereunder.
SECTION 13.03. CONVERSION PRICE ADJUSTMENTS.
The conversion price shall be subject to adjustment (without
duplication) from time to time as follows:
(a) In case the Corporation shall, while any of the Debt Securities are
outstanding, (i) pay a dividend or make a distribution with respect to its
Common Stock in shares of capital stock of the Corporation, (ii) subdivide
its outstanding shares of Common Stock, (iii) combine its outstanding shares
of Common Stock into a smaller number of shares or (iv) issue by
reclassification of its shares of Common Stock any shares of capital stock of
the Corporation, the conversion price and the kind and amount of capital
stock that may be acquired upon conversion
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as in effect immediately prior to such action shall be adjusted so that the
holder of any Debt Securities thereafter surrendered for conversion shall be
entitled to receive the number of shares of capital stock of the Corporation
which he would have owned immediately following such action had such Debt
Securities been converted immediately prior thereto. An adjustment made
pursuant to this Section shall become effective immediately after the record
date in the case of a dividend or other distribution and shall become
effective immediately after the effective date in case of a subdivision,
combination or reclassification (or immediately after the record date if a
record date shall have been established for such event). If, as a result of
an adjustment made pursuant to this Section, the holder of any Debt Security
thereafter surrendered for conversion shall become entitled to receive shares
of two or more classes or series of capital stock of the Corporation, the
Board of Directors (whose determination shall be conclusive and shall be
described in a Board Resolution filed with the Trustee) shall determine the
allocation of the adjusted conversion price between or among shares of such
classes or series of capital stock.
(b) No adjustment in the conversion price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
conversion price; provided, however, that any adjustments which by reason of
this Section are not required to be made shall be carried forward and taken
into account in determining whether any subsequent adjustment shall be
required.
SECTION 13.04. RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE OF
ASSETS.
In the event that the Corporation shall be a party to any transaction
(including without limitation (a) any recapitalization or reclassification of
the Common Stock (other than a change in par value, or from par value to no
par value, or from no par value to par value, or as a result of a subdivision
or combination of the Common Stock), (b) any consolidation of the Corporation
with, or merger of the Corporation into, any other Person, any merger of
another Person into the Corporation (other than a merger which does not
result in a reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Corporation), (c) any sale,
transfer or lease of all or substantially all of the assets of the
Corporation or (d) any compulsory share exchange pursuant to which the Common
Stock is converted into the right to receive other securities, cash or other
property, then lawful provision shall be made as part of the terms of such
transaction whereby the holder of each Debt Security then outstanding shall
have the right thereafter to convert such Debt Security only into the kind
and amount of securities, cash or other property receivable upon consummation
of such transaction by a holder of the number of shares of Common Stock of
the Corporation into which such Debt Security could have been converted
immediately prior to such transaction.
The Corporation or the Person formed by such consolidation or
resulting from such merger or which acquired such assets or which acquires
the Corporation's shares, as the case may be, shall make provision in its
certificate or articles of incorporation or other constituent document to
establish such right. Such certificate or articles of incorporation or other
constituent document shall provide for adjustments which, for events
subsequent to the effective date of such certificate or articles of
incorporation or other constituent document, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article XIII. The
above provisions shall similarly apply to successive transactions of the
foregoing type.
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SECTION 13.05. NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.
Whenever the conversion price is adjusted as herein provided:
(a) the Corporation shall compute the adjusted conversion price and
shall prepare a certificate signed by the chief financial officer or the
treasurer of the Corporation setting forth the adjusted conversion price and
showing in reasonable detail the facts upon which such adjustment is based,
and such certificate shall forthwith be filed with the Trustee and the
Conversion Agent; and
(b) notice stating the conversion price has been adjusted and
setting forth the adjusted conversion price shall as soon as practicable be
mailed by the Corporation to all record holders of Trust Securities and the
Debt Securities at their last addresses as they appear upon the transfer
books of the Corporation and the Trust.
SECTION 13.06. TRUSTEE NOT RESPONSIBLE FOR DETERMINING CONVERSION PRICE OR
ADJUSTMENTS.
Neither the Trustee nor any Conversion Agent shall at any time be under
any duty or responsibility to any holder of any Debt Security to determine
whether any facts exist which may require any adjustment of the conversion
price, or with respect to the nature or extent of any such adjustment when
made, or with respect to the method employed, or herein or in any
supplemental indenture provided to be employed, in making the same. Neither
the Trustee nor any Conversion Agent shall be accountable with respect to the
validity or value (or the kind of account) of any shares of Common Stock or
of any securities or property, which may at any time be issued or delivered
upon the conversion of any Debt Security; and neither the Trustee nor any
Conversion Agent makes any representation with respect thereto. Neither the
Trustee nor any Conversion Agent shall be responsible for any failure of the
Corporation to make any cash payment or to issue, transfer or deliver any
shares of Common Stock or stock certificates or other securities or property
upon the surrender of any Debt Security for the purpose of conversion, or,
except as expressly herein provided, to comply with any of the covenants of
the Corporation contained herein.
ARTICLE XIV
SUBORDINATION OF DEBT SECURITIES
SECTION 14.01. AGREEMENT TO SUBORDINATE.
The Corporation covenants and agrees, and each holder of Debt Securities
issued hereunder and under any supplemental indenture or by any resolutions
by the Boards of Directors of the Corporation ("Additional Provisions") by
such Securityholder's acceptance thereof likewise covenants and agrees, that
all Debt Securities shall be issued subject to the provisions of this
Article; and each holder of a Debt Security, whether upon original issue or
upon transfer or assignment thereof, accepts and agrees to be bound by such
provisions.
The payment by the Corporation of the principal of, premium, if any, and
interest on all Debt Securities issued hereunder and under any Additional
Provisions shall, to the extent and in the
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manner hereinafter set forth, be subordinated and junior in right of payment
to the prior payment in full of all Senior Indebtedness of the Corporation,
whether outstanding at the date of this Indenture or thereafter incurred.
No provision of this Article shall prevent the occurrence of any default
or Event of Default hereunder.
SECTION 14.02. DEFAULT ON SENIOR INDEBTEDNESS.
In the event and during the continuation of any default by the
Corporation in the payment of principal, premium, interest or any other
payment due on any Senior Indebtedness of the Corporation, or in the event
that the maturity of any Senior Indebtedness of the Corporation, as the case
may be, has been accelerated because of a default, then, in either case, no
payment shall be made by the Corporation, with respect to the principal of,
or premium, if any, or interest on the Debt Securities.
SECTION 14.03. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
Upon any payment by the Corporation or distribution of assets of the
Corporation of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or liquidation or
reorganization of the Corporation, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due
upon all Senior Indebtedness of the Corporation, shall first be paid in full,
or payment thereof provided for in money in accordance with its terms, before
any payment is made by the Corporation, on account of the principal (and
premium, if any) or interest on the Debt Securities; and upon any such
dissolution or winding-up or liquidation or reorganization, any payment by
the Corporation, or distribution of assets of the Corporation of any kind or
character, whether in cash, property or securities, to which the
Securityholders would be entitled to receive from the Corporation, except for
the provisions of this Article, shall be paid by the Corporation, or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the Securityholders if received by
them or it, directly to the holders of Senior Indebtedness of the Corporation
(pro rata to such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders, as calculated by the Corporation) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may appear,
to the extent necessary to pay such Senior Indebtedness in full, in money or
money's worth, after giving effect to any concurrent payment or distribution
to or for the holders of such Senior Indebtedness, before any payment or
distribution is made to the Securityholders.
SECTION 14.04 SUBROGATION.
Subject to the payment in full of all Senior Indebtedness of the
Corporation, the Securityholders 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 Corporation, applicable to such Senior
Indebtedness until the principal of, and premium, if any, and interest on the
Debt Securities shall have been paid in full.
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Nothing contained in this Article or elsewhere in this Indenture, any
Additional Provisions or in the Debt Securities is intended to or shall
impair, as between the Corporation, its creditors other than the holders of
Senior Indebtedness of the Corporation, and the holders of the Debt
Securities, the obligation of the Corporation, which is absolute and
unconditional, to pay to the holders of the Debt Securities the principal of
(and premium, if any) and interest on the Debt Securities 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 Debt
Securities and creditors of the Corporation, other than the holders of Senior
Indebtedness of the Corporation, nor shall anything herein or therein prevent
the holder of any Debt Security from exercising all remedies otherwise
permitted by applicable law upon default under the Indenture, subject to the
rights, if any, under this Article of the holders of such Senior Indebtedness
in respect of cash, property or securities of the Corporation, received upon
the exercise of any such remedy.
Upon any payment or distribution of assets of the Corporation referred
to in this Article, the Securityholders shall be entitled to conclusively
rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding-up, liquidation or reorganization proceedings
are pending, or a certificate of the receiver, trustee in bankruptcy,
liquidation trustee, agent or other Person making such payment or
distribution, delivered to the Securityholders, for the purposes of
ascertaining the Persons entitled to participate in such distribution, the
holders of Senior Indebtedness and other indebtedness of the Corporation, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article.
SECTION 14.05. SUBORDINATION MAY NOT BE IMPAIRED.
No right of any present or future holder of any Senior Indebtedness of
the Corporation to enforce subordination as herein provided shall at any time
in any way be prejudiced or impaired by any act or failure to act on the part
of the Corporation, or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Corporation, with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness of the Corporation may, at any time and
from time to time, without the consent of or notice to the Securityholders,
without incurring responsibility to the Securityholders and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the holders of the Debt Securities to the holders of such Senior
Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or
alter, such Senior Indebtedness, or otherwise amend or supplement in any
manner such Senior Indebtedness or any instrument evidencing the same or any
agreement under which such Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Indebtedness; (iii) release any Person liable
in any manner for the collection of such Senior Indebtedness; and (iv)
exercise or refrain from exercising any rights against the Corporation, and
any other Person.
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ARTICLE XV
THE TRUSTEE
SECTION 15.01. CERTAIN DUTIES AND RESPONSIBILITIES.
No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that the repayment
of such funds or liability is not reasonably assured to it under the terms of
this Indenture or indemnity reasonably satisfactory to the Trustee against
such risk or liability is not reasonably assured to it. 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 15.01.
SECTION 15.02. NOTICE OF DEFAULTS.
The Trustee shall give the holders notice of any default hereunder,
provided, however, that except in the case of any default of the character
specified in Section 8.01(c), 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 15.03. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 15.01:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Corporation mentioned herein shall
be sufficiently evidenced by a written request signed in the name of the
Corporation by its Chairman, President, or a Vice President, and delivered to
the Trustee, and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its choice and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity
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against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness 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 reasonable examination of the books, records and
premises of the Corporation, 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; and
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith, without negligence or willful
misconduct, and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
SECTION 15.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Debt Securities shall be taken
as the statements of the Corporation, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Debt Securities.
The Trustee shall not be accountable for the use or application by the
Corporation of the Debt Securities or the proceeds thereof.
SECTION 15.05. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed with the Corporation.
SECTION 15.06. COMPENSATION AND REIMBURSEMENT.
The Corporation agrees
(a) to pay to the Trustee from time to time such compensation as the
Corporation and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder;
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, fees, 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 its negligence or bad
faith; and
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(c) to indemnify the Trustee and any predecessor Trustee for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and expenses
of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 8.01(d) or Section 8.01(e), the
expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency
or other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 15.07. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 15.08.
(b) The Trustee may resign at any time by giving written notice thereof
to the Corporation. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving
of such notice of 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 Debt Securities, delivered to the Trustee
and to the Corporation. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(d) If at any time 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 its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in such case, (A) the
Corporation by Board Resolution may remove the Trustee, or (B) any holder who
has been a bona fide holder of a Debt Security for at least six months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Corporation, by a Board Resolution, shall promptly appoint a successor
Trustee. If, within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee shall be appointed by
act of the holders of a majority in principal amount of the Debt Securities
delivered to the Corporation and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment, become
the successor Trustee and supersede the successor Trustee appointed by the
Corporation. If no successor Trustee shall have been so appointed by the
32
Corporation or the holders and accepted appointment in the manner hereinafter
provided, any holder who has been a bona fide holder of a Debt Security for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of
a successor Trustee.
SECTION 15.08. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Corporation and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; provided, that on request
of the Corporation or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder. Upon request
of any such successor Trustee, the Corporation shall execute any and all
instruments required to more fully and certainly vest in and confirm to such
successor Trustee all such rights, powers and trusts.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
SECTION 16.01. SUCCESSORS.
All the covenants, stipulations, promises and agreements in this
Indenture contained by the Corporation shall bind to successors and assigns
whether so expressed or not.
SECTION 16.02. OFFICIAL ACTS BY SUCCESSOR CORPORATION.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Corporation shall and may be done and performed with like force and effect by
the like board, committee or officer of any corporation that shall at the
time be the lawful sole successor of the Corporation.
SECTION 16.03. ADDRESSES FOR NOTICES, ETC.
Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the holders of Debt Securities
on the Corporation may be given or served by being deposited postage prepaid
by registered or certified mail in a post office letter box addressed to the
Corporation, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
Xxxxxx X. Xxxxxx.
SECTION 16.04. GOVERNING LAW.
This Indenture and each Debt Security shall be deemed to be a contract
made under the laws of the State of Kentucky, and for all purposes shall be
governed by and construed in accordance with the laws of said State, without
regard to conflict of laws principles thereof.
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SECTION 16.05. HEADINGS, ETC.
The titles and headings of the articles and sections of this Indenture
have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 16.06. SEVERABILITY.
In case any one or more of the provisions contained in this Indenture or
in the Debt Securities shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of such Debt
Securities, but this Indenture and such Debt Securities shall be construed as
if such invalid or illegal or unenforceable provision had never been
contained herein or therein.
SECTION 16.07. ASSIGNMENT.
The Corporation will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Corporation, provided that, in the event of
any such assignment, the Corporation, will remain liable for all such
obligations. Subject to the foregoing, the Indenture is binding upon and
inures to the benefit of the parties thereto and their respective successors
and assigns. This Indenture may not otherwise be assigned by the parties
thereto.
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 one instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, as of the day and year first above written.
REPUBLIC BANCORP, INC.
By: /s/ XXXXXX X. XXXXXX
--------------------------------
Title: President
/s/ XXXXXX X. XXXXXX
----------------------------
XXXXXX X. XXXXXX, as Trustee
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