1
EXHIBIT 4.1
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JUNIOR SUBORDINATED INDENTURE
Between
SUCCESS BANCSHARES, INC.
and
BANKERS TRUST COMPANY
(as Trustee)
dated as of
__________ __, 1998
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2
SUCCESS CAPITAL TRUST I
Certain Sections of this Junior Subordinated Indenture relating
to Sections 310 through 318 of the
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8, 6.10
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.3(a)
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1, 7.2(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.2(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.2(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.3(a)
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.3(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.3(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.3(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.3(c)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.1(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2, 7.3
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.1(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.1(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.14
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.12
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1.4(f)
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.7
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
3
TABLE OF CONTENTS
PAGE
RECITALS OF SUCCESS BANCSHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Compliance Certificate and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 1.3. Forms of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.4. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.5. Notices, Etc. to Trustee and Success Bancshares . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 1.6. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.7. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.8. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.9. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.10. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.11. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.12. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.13. Non-Business Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE II SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.1. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.2. Form of Face of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.3. Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.4. Additional Provisions Required in Global Security . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.5. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE III THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 3.1. Title and Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 3.2. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.3. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.4. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.5. Global Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.6. Registration, Transfer and Exchange Generally; Certain Transfers and Exchanges; Securities
Act Legends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 3.8. Payment of Interest and Additional Interest; Interest Rights Preserved . . . . . . . . . . . . 28
SECTION 3.9. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.10. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.11. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.12. Deferrals of Interest Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.13. Right of Set-Off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.14. Agreed Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.15. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.16 Shortening of Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE IV SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.1. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 4.2. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE V REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . 36
SECTION 5.4. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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SECTION 5.5. Trustee May Enforce Claim Without Possession of Securities . . . . . . . . . . . . . . . . . . 37
SECTION 5.6. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.7. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium and Interest; Direct Action by
Holders of Preferred Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.9. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.10. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.11. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.12. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.13. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.14. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.15. Waiver of Usury, Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE VI THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.1. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.2. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.3. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.5. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.6. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.7. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.8. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.9. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.10. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6.11. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . 47
SECTION 6.13. Preferential Collection of Claims Against Success Bancshares . . . . . . . . . . . . . . . . . 48
SECTION 6.14. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE VII HOLDER'S LISTS AND REPORTS BY TRUSTEE, PAYING AGENT AND COMPANY . . . . . . . . . . . . . . . . . . 49
SECTION 7.1. Success Bancshares to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . 49
SECTION 7.2. Preservation of Information, Communications to Holders . . . . . . . . . . . . . . . . . . . . 50
SECTION 7.3. Reports by Trustee and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 7.4. Reports by Success Bancshares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 8.1. Success Bancshares May Consolidate, Etc., Only on Certain Terms . . . . . . . . . . . . . . . 51
SECTION 8.2. Successor Company Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE IX SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 9.1. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 9.2. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 9.3. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 9.4. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 9.5. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 9.6. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE X COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.1. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.2. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.3. Money for Security Payments to be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.4. Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.5. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.6. Additional Sums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
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SECTION 10.7. Additional Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.8. Original Issue Discount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE XI REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 11.1. Applicability of This Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 11.2. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 11.3. Selection of Securities to be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 11.4. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 11.5. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 11.6. Payment of Securities Called for Redemption . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 11.7 Right of Redemption of Securities Initially Issued to Success Capital. . . . . . . . . . . . . 62
ARTICLE XII SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE XIII SUBORDINATION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 13.1. Securities Subordinate to Senior and Subordinated Debt . . . . . . . . . . . . . . . . . . . . 63
SECTION 13.2. No Payment When Senior and Subordinated Debt in Default; Payment Over of Proceeds Upon
Dissolution, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 13.3. Payment Permitted If No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 13.4. Subrogation to Rights of Holders of Senior and Subordinated Debt . . . . . . . . . . . . . . . 65
SECTION 13.5. Provisions Solely to Define Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 13.6. Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 13.7. No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 13.8. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 13.9. Reliance on Judicial Order or Certificate of Liquidating Agent . . . . . . . . . . . . . . . . 67
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior and Subordinated Debt . . . . . . . . . . . . . . 68
SECTION 13.11 Rights of Trustee as Holder of Senior and Subordinated Debt; Preservation of Trustee's
Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 13.12. Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 13.13. Certain Conversions or Exchanges Deemed Payment . . . . . . . . . . . . . . . . . . . . . . . 68
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JUNIOR SUBORDINATED INDENTURE
THIS JUNIOR SUBORDINATED INDENTURE, dated as of __________ __, 1998,
between SUCCESS BANCSHARES, INC., an Illinois corporation ("SUCCESS
BANCSHARES"), having its principal office at Xxx Xxxxxxxx Xxxxx, Xxxxxxxxxxxx,
Xxxxxxxx, 00000, and BANKERS TRUST COMPANY, as Trustee, having its principal
office at Four Albany Street, 4th Floor, New York, New York 10006 (the
"TRUSTEE").
RECITALS OF SUCCESS BANCSHARES
WHEREAS, Success Bancshares has duly authorized the execution and
delivery of this Indenture to provide for the issuance of its unsecured junior
subordinated debentures due _______________, 2028 (the "SECURITIES") of
substantially the tenor hereinafter provided, including Securities issued to
evidence loans made to Success Bancshares from the proceeds from the issuance
from time to time by Success Capital Trust I, a Delaware business trust
("SUCCESS CAPITAL") of undivided preferred beneficial interests in the assets
of Success Capital (the "PREFERRED SECURITIES") and common undivided interests
in the assets of Success Capital (the "COMMON SECURITIES" and, collectively
with the Preferred Securities, the "TRUST SECURITIES"), and to provide the
terms and conditions upon which the Securities are to be authenticated, issued
and delivered; and
WHEREAS, all things necessary to make this Indenture a valid agreement
of Success Bancshares, in accordance with its terms, have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as such term is defined in Section 1.1 hereof)
thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities or of any series thereof, and
intending to be legally bound hereby, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) All other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
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(3) The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation";
(4) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect at the time of computation;
(5) Whenever the context may require, any gender shall be deemed to
include the other;
(6) Unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Indenture; and
(7) The words "hereby", "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.
"25% Capital Limitation" means the limitation imposed by the Federal
Reserve that the proceeds of certain qualifying securities like the Trust
Securities will qualify as Tier 1 capital of the issuer up to an amount not to
exceed 25% of the Issuer's Tier 1 capital, or any subsequent limitation adopted
by the Federal Reserve.
"Act" when used with respect to any Holder has the meaning specified in
Section 1.4.
"Additional Interest" means the interest, if any, that shall accrue on
any interest on the Securities the payment of which has not been made on the
applicable Interest Payment Date and which shall accrue at the rate per annum
specified or determined as specified in such Security.
"Additional Sums" has the meaning specified in Section 10.6.
"Additional Taxes" means any additional taxes, duties and other
governmental charges to which Success Capital has become subject from time to
time as a result of a Tax Event.
"Administrative Trustee" means, in respect of Success Capital, each
Person appointed in accordance with the Trust Agreement, solely in such
Person's capacity as Administrative Trustee of Success Capital and not in such
Person's individual capacity, or any successor Administrative Trustee appointed
as therein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
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"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Global Security, in each case
to the extent applicable to such transaction and as in effect from time to
time.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities.
"Board of Directors" means the board of directors of Success
Bancshares or the Executive Committee of the board of directors of Success
Bancshares (or any other committee of the board of directors of Success
Bancshares performing similar functions) or, for purposes of this Indenture, a
committee designated by the board of directors of Success Bancshares (or such
committee), comprised of two or more members of the board of directors of
Success Bancshares or officers of Success Bancshares, or both.
"Board Resolution" means a copy of a resolution certified by the
Secretary or any Assistant Secretary of Success Bancshares to have been duly
adopted by the Board of Directors, or such committee of the Board of Directors
or officers of Success Bancshares to which authority to act on behalf of the
Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii)
a day on which banking institutions in the City of New York are authorized or
required by law or executive order to remain closed, or (iii) a day on which
the Corporate Trust Office of the Trustee, or, with respect to the Securities
initially issued to Success Capital, the "Corporate Trust Office" (as defined
in the Trust Agreement) of the Property Trustee or the Delaware Trustee under
the Trust Agreement, is closed for business.
"Capital Treatment Event" means the receipt by Success Bancshares of an
Opinion of Counsel experienced in such matters to the effect that, as a result
of any amendment to, or change (including any announced prospective change) in,
the laws (or any regulations thereunder) of the United States or any political
subdivision thereof or therein, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying such laws
or regulations, which amendment or change is effective or such prospective
change, pronouncement or decision is announced on or after the date of issuance
of the Trust Preferred Securities under the Trust Agreement, the Trust Preferred
Securities do not, or within 90 days of the date of such opinion will not,
constitute Tier 1 capital (or the then equivalent thereof), except as otherwise
restricted under the 25% Capital Limitation, for purposes of the capital
adequacy guidelines of the Federal Reserve, as then in effect and applicable to
Success Bancshares.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Common Securities" has the meaning specified in the first recital of
this Indenture.
"Common Stock" means the common stock, $0.001 par value per share, of
Success Bancshares.
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"Company Request" and "Company Order" mean, respectively, the written
request or order signed in the name of Success Bancshares by its Chairman of
the Board of Directors, its Vice Chairman of the Board of Directors, its
President or a Vice President, and by its Chief Financial Officer, its
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered.
"Creditor" has the meaning specified in Section 6.7.
"Debt" means with respect to any Person, whether recourse is to all or
a portion of the assets of such Person and whether or not contingent: (i) every
obligation of such person for money borrowed, (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business), (v) every capital lease obligation of such Person, (vi) all
indebtedness of such Person whether incurred on or prior to the date of this
Indenture or thereafter incurred, for claims in respect of derivative products
including interest rate, foreign exchange rate and commodity forward contracts,
options and swaps and similar arrangements and (vii) every obligation of the
type referred to in clauses (i) through (vi) of another Person and all
dividends of another Person the payment of which, in either case, such Person
has guaranteed or is responsible or liable, directly or indirectly, as obligor
or otherwise.
"Defaulted Interest" has the meaning specified in Section 3.8.
"Delaware Trustee" means, with respect to Success Capital, the Person
identified as the "Delaware Trustee" in the Trust Agreement, solely in its
capacity as Delaware Trustee of Success Capital under the Trust Agreement and
not in its individual capacity, or its successor in interest in such capacity,
or any successor Delaware trustee appointed as therein provided.
"Depositary" means, with respect to the Securities issuable or issued
in whole or in part in the form of one or more Global Securities, the Person
(or any successor thereto) designated as Depositary by Success Bancshares
pursuant to Section 3.1.
"Discount Security" means any Security that provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 5.2.
"Dollar" or "$" means the currency of the United States of America
that, as at the time of payment, is legal tender for the payment of public and
private debts.
The term "entity" includes a bank, corporation, association, company,
limited liability company, joint-stock company or business trust.
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"Event of Default," has the meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.4.
"Extension Period" has the meaning specified in Section 3.12.
"Global Security" means a Security in the form prescribed in Section
2.4 evidencing all or part of the Securities, issued to the Depositary or its
nominee, and registered in the name of such Depositary or its nominee.
"Guarantee" means, with respect to Success Capital, the Guarantee
Agreement, dated __________ __, 1998, executed by Success Bancshares for the
benefit of the Holders of the Preferred Securities issued by Success Capital as
modified, amended or supplemented from time to time.
"Holder" means a Person in whose name a Security is registered in the
Securities Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Institutional Accredited Investor" means an institutional accredited
investor within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on such Securities.
"Investment Company Act" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"Investment Company Event" means the receipt by Success Capital of an
Opinion of Counsel experienced in such matters to the effect that, as a result
of any change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, Success Capital is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act, which change becomes effective on or after the original issuance
of the Preferred Securities of Success Capital.
"Maturity" when used with respect to any Security means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 5.1(3).
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"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman, Chief Executive Officer, President,
Executive Vice President or a Vice President, and by the Chief Financial
Officer, Treasurer, an Associate Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of such Person, and delivered to the
Trustee. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Indenture shall include;
(a) a statement by each officer signing the Officers' Certificate
that such officer has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each such officer in rendering the
Officers' Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with;
provided, however, that the Officers' Certificate delivered pursuant to the
provisions of Section 10.4 hereof shall comply with the provisions of Section
314 of the Trust Indenture Act.
"Opinion of Counsel" means a written opinion of independent outside
counsel to Success Bancshares, who shall be acceptable to the Trustee.
"Original Issue Date" means the date of issuance specified as such in
each Security.
"Outstanding" means, when used in reference to any Securities, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent in
trust for the Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or that have been
paid pursuant to Section 3.6, unless proof satisfactory to the Trustee
is presented that any such Securities are held by Holders in whose
hands such Securities are valid, binding and legal obligations of
Success Bancshares;
provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by Success
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Bancshares or any other obligor upon the Securities or any Affiliate
of Success Bancshares or such other obligor (other than, for the
avoidance of doubt, Success Capital) shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities
that the Trustee knows to be so owned shall be so disregarded.
Securities so owned that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not Success
Bancshares or any other obligor upon the Securities or any Affiliate
of Success Bancshares or such other obligor (other than, for the
avoidance of doubt, Success Capital). Upon the written request of the
Trustee, Success Bancshares shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any,
known by Success Bancshares to be owned or held by or for the account
of Success Bancshares, or any other obligor on the Securities or any
Affiliate of Success Bancshares or such obligor (other than, for the
avoidance of doubt, Success Capital), and, subject to the provisions
of Section 6.1, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set
forth and of the fact that all Securities not listed therein are
Outstanding for the purpose of any such determination.
"Paying Agent" means the Trustee or any Person authorized by Success
Bancshares to pay the principal of (or premium, if any) or interest on, or
other amounts in respect of any Securities on behalf of Success Bancshares.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture association, joint stock company, company,
limited liability company, trust, unincorporated organization or government or
any agency or political subdivision thereof, or any other entity of whatever
nature.
"Place of Payment" means, with respect to the Securities, the place or
places where the principal of (and premium, if any) and interest on the
Securities are payable pursuant to Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security. For the purposes of this definition, any security
authenticated and delivered under Section 3.7 in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Preferred Securities" has the meaning specified in the first recital
of this Indenture.
"Proceeding" has the meaning specified in Section 13.2.
"Property Trustee" means, with respect to Success Capital, the Person
identified as the "Property Trustee" in the Trust Agreement, solely in its
capacity as Property Trustee of Success Capital under the Trust Agreement and
not in its individual capacity, or its successor in interest in such capacity,
or any successor property trustee appointed as therein provided.
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"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or the terms of such Security.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date with respect to the Securities means, unless otherwise provided pursuant
to Section 3.1 with respect to the Securities, the close of business on the
Business Day immediately preceding the 15th day of March, June, September or
December of each year. In the event the Preferred Securities are not in
book-entry form, the Regular Record Date will be the first day of the month in
which the relevant distributions are payable.
"Responsible Officer", when used with respect to the Property Trustee
means any officer assigned to the Corporate Trust Office, including any
managing director, principal, vice president, assistant vice president,
assistant treasurer, assistant secretary or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the administration of
this Indenture, and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject.
"Securities" or "Security" means any debt securities or debt security,
as the case may be, authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as modified,
amended or supplemented from time to time.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.6.
"Senior and Subordinated Debt" means the principal of (and premium, if
any) and interest, if any (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to Success
Bancshares whether or not such claim for post-petition interest is allowed in
such proceeding), on Debt of Success Bancshares whether incurred on or prior to
the date of the Indenture or thereafter incurred, unless, in the instrument
creating or evidencing the same or pursuant to which the same is outstanding,
it is provided that such obligations are not superior in right of payment to
the Securities or to other Debt which is pari passu with, or subordinated to,
the Securities; provided, however, that Senior and Subordinated Debt shall not
be deemed to include (i) any Debt of Success Bancshares which, when incurred
and without respect to any election under Section 1111(b) of the United States
Bankruptcy Code of 1978, as amended, was without recourse to Success
Bancshares, (ii) any Debt of Success Bancshares to any of its Subsidiaries,
(iii) Debt to any employee of Success Bancshares and (iv) any other debt
securities issued pursuant to the Indenture.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.8.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
pursuant to the terms of such Security as the fixed date on which the principal
of such Security or such installment of principal or interest
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is due and payable, as such date may, in the case of such principal, be
shortened or extended as provided pursuant to the terms of such Security and
this Indenture.
"Subsidiary" means an entity more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by Success Bancshares or by
one or more other Subsidiaries, or by Success Bancshares and one or more other
Subsidiaries. For purposes of this definition, "voting stock" means stock that
ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of
any contingency.
"Success Bancshares" means the Person named as "Success Bancshares" in
the first paragraph of this Indenture until a successor entity shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Success Bancshares" shall mean such successor entity.
"Success Capital" has the meaning specified in the first recital of this
Indenture.
"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that
evidenced by, such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.7 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Tax Event" means the receipt by Success Capital of an Opinion of
Counsel (as defined in the Trust Agreement) experienced in such matters to the
effect that, as a result of any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, or as a result of any official or administrative pronouncement or
action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or which pronouncement or decision is
announced on or after the date of issuance of the Preferred Securities of
Success Capital, there is more than an insubstantial risk that (i) Success
Capital is, or will be within 90 days of the delivery of such Opinion of
Counsel, subject to United States federal income tax with respect to income
received or accrued on the corresponding series of Securities issued by Success
Bancshares to Success Capital, (ii) interest payable by Success Bancshares on
the Securities is not, or within 90 days of the delivery of such Opinion of
Counsel will not be, deductible by Success Bancshares, in whole or in part, for
United States federal income tax purposes, or (iii) Success Capital is, or will
be within 90 days of the delivery of such Opinion of Counsel, subject to more
than a de minimis amount of other taxes, duties or other governmental charges.
"Trust Agreement" means the Amended and Restated Trust Agreement,
dated as of __________ __, 1998, as amended, modified or supplemented from time
to time, among the trustees of Success Capital named therein, Success
Bancshares, as depositor, and the holders from time to time of undivided
beneficial ownership interests in the assets of Success Capital.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture, solely in its capacity as such and not in its
individual capacity, until a successor Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder and, if
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at any time there is more than one such Person, "Trustee" as used with respect
to any Securities shall mean the Trustee with respect to such Securities.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
modified, amended or supplemented from time to time, except as provided in
Section 9.5.
"Trust Securities" has the meaning specified in the first recital of
this Indenture.
"Vice President," when used with respect to Success Bancshares, means
any duly appointed vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
SECTION 1.2. Compliance Certificate and Opinions.
Upon any application or request by Success Bancshares to the Trustee
to take any action under any provision of this Indenture, Success Bancshares
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent (including covenants compliance with which constitutes a
condition precedent), if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent (including
covenants compliance with which constitutes a condition precedent), if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificates provided pursuant to Section 10.4) shall include:
(1) a statement by each individual signing such certificate or
opinion that such individual has read such covenant or condition and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions of
such individual contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he or
she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of such
individual, such condition or covenant has been complied with.
SECTION 1.3. Forms of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or
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covered by the opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of Success Bancshares may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to matters upon which his or her certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of Success Bancshares
stating that the information with respect to such factual matters is in the
possession of Success Bancshares, unless such counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions, or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to
be given to or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments is or are
delivered to the Trustee, and, where it is hereby expressly required,
to Success Bancshares. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.1) conclusive in favor of the Trustee and
Success Bancshares, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a
witness of such execution or by the certificate of any notary public
or other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by
a Person acting in other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
or her authority.
(c) The fact and date of the execution by any Person of
any such instrument or writing, or the authority of the Person
executing the same, may also be provided in any other manner that the
Trustee deems sufficient and in accordance with such reasonable rules
as the Trustee may determine.
(d) The ownership of Securities shall be proved by the
Securities Register.
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(e) Any request, demand, authorization, direction,
notice, consent, waiver or other action by the Holder of any Security
shall bind every future Holder of the same Security and the Holder of
every Security issued upon the transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done or suffered to
be done by the Trustee or Success Bancshares in reliance thereon,
whether or not notation of such action is made upon such Security.
(f) Success Bancshares may set any day as a record date
for the purpose of determining the Holders of Outstanding Securities
entitled to give, make or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders of
Securities, provided that Success Bancshares may not set a record date
for, and the provisions of this paragraph shall not apply with respect
to, the giving or making of any notice, declaration, request or
direction referred to in the next succeeding paragraph. If any record
date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders
remain Holders after such record date, provided that no such action
shall be effective hereunder unless taken on or prior to the
applicable Expiration Date (as defined below) by Holders of the
requisite principal amount of Outstanding Securities on such record
date. Nothing in this paragraph shall be construed to prevent Success
Bancshares from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action
taken by Holders of the requisite principal amount of Outstanding
Securities on the date such action is taken. Promptly after any record
date is set pursuant to this paragraph, Success Bancshares, at its own
expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities in the manner set
forth in Section 1.6.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities entitled to join
in the giving or making of (i) any Notice of Default, (ii) any
declaration of acceleration referred to in Section 5.2, (iii) any
request to institute proceedings referred to in Section 5.7(2), or
(iv) any direction referred to in Section 5.12, in each case with
respect to Securities. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities on such record date,
and no other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain
Holders after such record date, provided that no such action shall be
effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of
Outstanding Securities on such record date. Nothing in this paragraph
shall be construed to prevent the Trustee from setting a new record
date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be cancelled and
of no effect) and nothing in this paragraph shall be construed to
render ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities on the date such action is
taken. Promptly after any record date is set pursuant to this
paragraph, the
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Trustee, at Success Bancshares's expense, shall cause notice of such
record date, the proposed action by Holders and the applicable
Expiration Date to be given to Success Bancshares in writing and to
each Holder of Securities in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section,
the party hereto that sets such record date may designate any day as
the "Expiration Date" and from time to time may change the Expiration
Date to any earlier or later day, provided that no such change shall
be effective unless notice of the proposed new Expiration Date is
given to the other party hereto in writing, and to each Holder of
Securities in the manner set forth in Section 1.6, on or prior to the
existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the party
hereto that set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration
Date as provided in this paragraph. Notwithstanding the foregoing, no
Expiration Date shall be later than the 180th day after the applicable
record date.
(g) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the principal
amount of such Security or by one or more duly appointed agents each
of which may do so pursuant to such appointment with regard to all or
any part of such principal amount.
SECTION 1.5. Notices, Etc. to Trustee and Success Bancshares.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, any holder of Preferred
Securities or Success Bancshares shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the
Trustee at its Corporate Trust Office, or
(2) Success Bancshares by the Trustee, any Holder or any
holder of Preferred Securities shall be sufficient for every purpose
(except as otherwise provided in Section 5.1) hereunder if in writing
and mailed, first class, postage prepaid, to Success Bancshares
addressed to it at the address of its principal office specified in
the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by Success Bancshares.
SECTION 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to each Holder affected
by such event, at the address of such Holder as it appears in the Securities
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. If, by reason of the suspension
of or irregularities in regular mail services or for any other reason, it shall
be impossible or impracticable to mail
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notice of any event to Holders when said notice is required to be given
pursuant to any provision of this Indenture or of the Securities, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
SECTION 1.7. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required thereunder to be a part
of and govern this Indenture, the provision of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
SECTION 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by Success Bancshares
shall bind its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
If any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
and assigns, the holders of Senior and Subordinated Debt, the Holders of the
Securities and, to the extent expressly provided in Sections 5.2, 5.8, 5.9,
5.11, 5.13, 9.1 and 9.2, the holders of Preferred Securities, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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SECTION 1.13. Non-Business Days.
If any Interest Payment Date, Redemption Date or Stated Maturity of
any Security shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or the Securities) payment of interest or principal
(and premium, if any) or other amounts in respect of such Security need not be
made on such date, but may be made on the next succeeding Business Day (and no
interest shall accrue in respect of the amounts whose payment is so delayed for
the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, until such next succeeding Business Day) except
that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day (in each case
with the same force and effect as if made on the Interest Payment Date or
Redemption Date or at the Stated Maturity).
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally.
The Securities shall be in substantially the forms set forth in this
Article, or in such other form or forms as shall be established by or pursuant
to a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable tax
laws or the rules of any securities exchange or as may, consistently herewith,
be determined by the officers executing such securities, as evidenced by their
execution of the Securities. If the form of Securities is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of Success
Bancshares and delivered to the Trustee at or prior to the delivery of The
Company Order contemplated by Section 3.3 with respect to the authentication
and delivery of such Securities.
The Trustee's certificates of authentication shall be substantially in
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods, if required by any securities
exchange on which the Securities may be listed, on a steel engraved border or
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Securities distributed to holders of Global Preferred Securities (as
defined in the Trust Agreement) upon the dissolution of Success Capital shall
be distributed in the form of one or more Global Securities registered in the
name of a Depositary or its nominee, and deposited with the Securities
Registrar, as custodian for such Depositary, or with such Depositary, for
credit by the Depositary to the respective accounts of the beneficial owners of
the Securities represented thereby (or such other accounts as they may direct).
Securities distributed to holders of Preferred Securities other than Global
Preferred Securities upon the dissolution of
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Success Capital shall not be issued in the form of a Global Security or any
other form intended to facilitate book-entry trading in beneficial interests in
such Securities.
SECTION 2.2. Form of Face of Security.
SUCCESS BANCSHARES, INC.
_____% Junior Subordinated Deferrable Interest Debentures due ______, 2028
No. ____ $_______________
SUCCESS BANCSHARES, INC., an Illinois corporation (hereinafter called
"SUCCESS BANCSHARES", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to Success Capital Trust I, or registered assigns, the principal sum of
_________ Dollars on ____________, 2028, or such other principal amount
represented hereby as may be set forth in the records of the Securities
Registrar hereinafter referred to in accordance with the Indenture; provided
that Success Bancshares may shorten the Stated Maturity of the principal of
this Security to a date not earlier than ___________, 2003. Success Bancshares
further promises to pay interest on said principal from __________ __, 1998, or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, quarterly (subject to deferral as set forth herein) in
arrears on the 15th day of March, June, September and December of each year,
commencing __________ __, 1998 at the rate of _____% per annum, together with
Additional Sums, if any, as provided in Section 10.6 of the Indenture, until
the principal hereof is paid or duly provided for or made available for
payment; provided that any overdue principal, premium or Additional Sums and
any overdue installment of interest shall bear Additional Interest at the rate
of _____% per annum (to the extent that the payment of such interest shall be
legally enforceable), compounded quarterly from the dates such amounts are due
until they are paid or made available for payment, and such interest shall be
payable on demand. The amount of interest payable for any period less than a
full interest period shall be computed on the basis of a 360-day year of twelve
30-day months and the actual days elapsed in a partial month in such period.
The amount of interest payable for any full interest period shall be computed
by dividing the applicable rate per annum by four. The initial payment of
interest on any Security that is issued between a Regular Record Date and the
related Interest Payment Date shall be computed on a pro rata basis, based on
the number of days between such Regular Record Date and such Interest Payment
Date, and shall be payable on the next succeeding Interest Payment Date
following such Interest Payment Date. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
the Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest installment, which shall be the 15th day
of March, June, September and December (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest not
so punctually paid or duly provided for shall forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given
to Holders of Securities of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
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So long as no Event of Default has occurred and is continuing, Success
Bancshares shall have the right, at any time during the term of this Security,
from time to time to defer the payment of interest on this Security for up to
20 consecutive quarterly interest payment periods with respect to each deferral
period (each an "EXTENSION PERIOD"), during which Extension Periods Success
Bancshares shall have the right to make partial payments of interest on any
Interest Payment Date, and at the end of which Success Bancshares shall pay all
interest then accrued and unpaid including Additional Interest, as provided
below; provided however, that no Extension Period shall extend beyond the
Stated Maturity of the principal of this Security, as then in effect, and no
such Extension Period may end on a date other than an Interest Payment Date;
and provided further, however, that during any such Extension Period, Success
Bancshares shall not (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
Success Bancshares' capital stock (other than (a) paying dividends or
distributions in common stock of Success Bancshares, (b) redeeming rights or
taking certain other actions under a shareholders' rights plan, (c)
reclassifying any class of Success Bancshares' capital stock into another class
of capital stock and (d) purchasing Success Bancshares' common stock related to
rights under any of Success Bancshares' benefit plans for its Directors,
officers or employees), (ii) make any payment of principal, interest or
premium, if any, on, or repay, repurchase or redeem, any debt securities of
Success Bancshares that rank pari passu with or junior in interest to the
Securities (except for payments under the Guarantee) or (iii) redeem, purchase
or acquire less than all of the Securities or any of the Preferred Securities.
Prior to the termination of any such Extension Period, Success Bancshares may
further defer the payment of interest, provided that no Event of Default has
occurred and is continuing, no Extension Period shall exceed 20 consecutive
quarterly interest payment periods, extend beyond the Stated Maturity of the
principal of this Security or end on a date other than an Interest Payment
Date. Upon the termination of any such Extension Period and upon the payment of
all accrued and unpaid interest and any Additional Interest then due on any
Interest Payment Date, Success Bancshares may elect to begin a new Extension
Period, subject to the above conditions. No interest shall be due and payable
during an Extension Period, except at the end thereof, but each installment of
interest that would otherwise have been due and payable during such Extension
Period shall bear Additional Interest (to the extent that the payment of such
interest shall be legally enforceable) at the rate of _____% per annum,
compounded quarterly and calculated as set forth in the first paragraph of this
Security, from the date on which such amounts would otherwise have been due and
payable until paid or made available for payment. Success Bancshares shall give
the Trustee, the Property Trustee and the Administrative Trustees notice of its
election to begin any Extension Period at least one Business Day prior to the
next succeeding Interest Payment Date on which interest on this Security would
be payable but for such deferral or so long as such securities are held by
Success Capital Trust I, at least one Business Day prior to the earlier of (i)
the next succeeding date on which Distributions on the Preferred Securities of
Success Capital would be payable but for such deferral, and (ii) the date the
Administrative Trustees are required to give notice to the New York Stock
Exchange, the Nasdaq National Market or any applicable stock exchange or
automated quotation system on which the Preferred Securities are then listed or
quoted or to the holders of the Preferred Securities of the record date or the
date such Distributions are payable, but in any event not less than one
Business Day prior to such record date.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of Success Bancshares maintained
for that purpose in the United States, in such coin or currency of the United
States of America as at the time of payment is
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legal tender for payment of public and private debts; provided however, that at
the option of Success Bancshares payment of interest may be made by (i) check
mailed to the address of the Person entitled thereto as such address shall
appear in the Securities Register or (ii) by wire transfer in immediately
available funds at such place and to such account as may be designated by the
Person entitled thereto as specified in the Securities Register.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payments to the prior
payment in full of all Senior and Subordinated Debt, and this Security is
issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his or her
behalf to take such actions as may be necessary or appropriate to effectuate
the subordination so provided, and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder of Senior and
Subordinated Debt, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, Success Bancshares has caused this instrument to
be duly executed under its corporate seal.
SUCCESS BANCSHARES, INC.
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
Attest:
--------------------------------
Secretary or Assistant Secretary
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SECTION 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of
Success Bancshares (herein called the "SECURITIES"), issued and to be issued
under the Junior Subordinated Indenture, dated as of __________ __, 1998
(herein called the "INDENTURE"), between Success Bancshares and Bankers Trust
Company, as Trustee (herein called the "TRUSTEE", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of Success
Bancshares, the Trustee, the holders of Senior and Subordinated Debt and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
All terms used in this Security that are defined in the Indenture or
in the Amended and Restated Trust Agreement dated as of __________ __, 1998 (as
modified, amended or supplemented from time to time, the "TRUST AGREEMENT"),
relating to Success Capital Trust I ("SUCCESS CAPITAL") among Success
Bancshares, as Depositor, the Trustees named therein and the Holders from time
to time of the Trust Securities issued pursuant thereto shall have the meanings
assigned to them in the Indenture or the Trust Agreement, as the case may be.
Success Bancshares has the right to redeem this Security (i) on or
after ___________, 2003 in whole at any time or in part from time to time, or
(ii) in whole (but not in part), at any time within 90 days following the
occurrence and during the continuation of a Tax Event, Investment Company
Event, or Capital Treatment Event, in each case at the Redemption Price
described below, and subject to prior regulatory approval, if required. The
Redemption Price shall equal 100% of the principal amount hereof being
redeemed, together with accrued interest to but excluding the date fixed for
redemption.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
[If applicable, insert--The Indenture contains provisions for
defeasance at any time [of the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance by Success Bancshares with certain
conditions set forth in the Indenture.]
The Indenture permits, with certain exceptions as therein provided,
Success Bancshares and the Trustee at any time to enter into a supplemental
indenture or indentures for the purpose of modifying in any manner the rights
and obligations of Success Bancshares and of the Holders of the Securities,
with the consent of the Holders of not less than a majority in principal amount
of the Outstanding Securities to be affected by such supplemental indenture.
The Indenture also contains provisions permitting Holders of specified
percentages in principal amount of the Securities at the time Outstanding, on
behalf of the Holders of all Securities, to waive compliance by Success
Bancshares with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
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[If the Security is not a Discount Security, insert--As provided in
and subject to the provisions of the Indenture, if an Event of Default with
respect to the Securities at the time Outstanding occurs and is continuing,
then and in every such case the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities may declare the
principal amount of all the Securities to be due and payable immediately, by a
notice in writing to Success Bancshares (and to the Trustee if given by
Holders), provided that, if upon an Event of Default, the Trustee or such
Holders fail to declare the principal of all the Outstanding Securities to be
immediately due and payable, the Holders of at least 25% in aggregate
Liquidation Amount of the Preferred Securities then outstanding shall have the
right to make such declaration by a notice in writing to Success Bancshares and
the Trustee; and upon any such declaration the principal amount of and the
accrued interest (including any Additional Interest) on all the Securities
shall become immediately due and payable, provided that the payment of
principal and interest (including any Additional Interest) on such Securities
shall remain subordinated to the extent provided in Article XIII of the
Indenture.]
[If the Security is a Discount Security, insert--As provided in and
subject to the provisions of the Indenture, if an Event of Default with respect
to the Securities at the time Outstanding occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities may declare an amount of
principal of the Securities to be due and payable immediately, by a notice in
writing to Success Bancshares (and to the Trustee if given by Holders),
provided that, if upon an Event of Default, the Trustee or such Holders fail to
declare such principal amount of the Outstanding Securities to be immediately
due and payable, the Holders of at least 25% in aggregate Liquidation Amount of
the Preferred Securities then outstanding shall have the right to make such
declaration by a notice in writing to Success Bancshares and the Trustee. The
principal amount payable upon such acceleration shall be equal to [insert
formula for determining the amount]. Upon any such declaration, such amount of
the principal of and the accrued interest (including any Additional Interest)
on all the Securities shall become immediately due and payable, provided that
the payment of such principal and interest (including any Additional Interest)
on all the Securities shall remain subordinated to the extent provided in
Article XIII of the Indenture. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal, premium
and interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of Success Bancshares's obligations in
respect of the payment of the principal of and premium and interest, if any, on
this Security shall terminate.]
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of Success Bancshares,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest (including Additional Interest) on this Security at the
times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Securities Register, upon surrender of this Security for registration of
transfer at the office or agency of Success Bancshares maintained under Section
10.2 of the Indenture for such purpose, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to Success Bancshares and
the Securities Registrar duly executed by, the Holder hereof or such Holder's
attorney duly authorized in writing, and
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thereupon one or more new Securities, of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein set forth, Securities are exchangeable for a like aggregate principal
amount of Securities and of like tenor of a different authorized denomination,
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but Success Bancshares may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, Success Bancshares, the Trustee and any agent of Success Bancshares
or the Trustee may treat the Person in whose name this Security is registered
as the owner hereof for all purposes, whether or not this Security be overdue,
and neither Success Bancshares, the Trustee nor any such agent shall be
affected by notice to the contrary.
Success Bancshares and, by its acceptance of this Security or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, this Security agrees that for United States federal,
state and local tax purposes it is intended that this Security constitute
indebtedness.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
THIS SECURITY IS A DIRECT AND UNSECURED OBLIGATION OF SUCCESS
BANCSHARES, DOES NOT EVIDENCE DEPOSITS AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER INSURER OR GOVERNMENT AGENCY.
SECTION 2.4. Additional Provisions Required in Global Security.
Unless otherwise specified as contemplated by Section 3.1, any Global
Security issued hereunder shall, in addition to the provisions contained in
Sections 2.2 and 2.3, bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
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SECTION 2.5. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated: BANKERS TRUST COMPANY,
------------------------- as Trustee
By:
------------------------------
Authorized Signatory
ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is $____________.
The Securities' Stated Maturity shall be ______________, 2028.
The Securities, established pursuant to a Board Resolution, shall bear
interest at a per annum rate equal to _____% from __________ __, 1998 or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, as the case may be, payable quarterly (subject to deferral as set
forth in Section 3.12), in arrears, on the 15th day of March, June, September
and December of each year, commencing June 15, 1998, until the principal
thereof is paid or made available for payment. Interest will compound quarterly
and will accrue at a per annum rate equal to _____%, to the extent permitted by
applicable law, on any interest installment in arrears for more than one
quarterly period or during an Extension Period.
The principal of and interest on the Securities shall be payable at
the office or agency of the Paying Agent in the United States maintained for
such purpose or at any other office or agency maintained by Success Bancshares
for such purpose in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of Success Bancshares payment of interest
may be made (i) by check mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register or (ii) by wire transfer
in immediately available funds at such place and to such account as may be
designated by the Person entitled thereto as specified in the Security
Register.
Securities shall be issuable in whole or in part in the form of one or
more Global Securities and, in such case, the Depositary for such Global
Securities shall be The Depository Trust Company.
The Securities shall be subordinated in right of payment to Senior and
Subordinated Debt as provided in Article XIII.
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SECTION 3.2. Denominations.
The Securities shall be in registered form without coupons and shall
be issuable in denominations of $10 and any integral multiple thereof.
SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of Success Bancshares by
its Chairman of the Board, its Vice Chairman of the Board, its President or one
of its Vice Presidents, under its corporate seal reproduced or impressed
thereon and attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of Success Bancshares shall bind
Success Bancshares, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities. At any
time and from time to time after the execution and delivery of this Indenture,
Success Bancshares may deliver Securities executed by Success Bancshares to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with The Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities have been established by or pursuant to one or
more Board Resolutions as permitted by Sections 2.1 and 3.1, in authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 6.1) shall be fully protected in relying upon,
an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that such
form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.1, that such
terms have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by Success Bancshares in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of Success Bancshares
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
that is not reasonably acceptable to the Trustee.
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Notwithstanding the provisions of the preceding paragraph, if all
Securities are not to be originally issued at one time, it shall not be
necessary to deliver the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the authentication
of each Security if such documents are delivered at or prior to the
authentication upon original issuance of the first Security to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
officers, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such security has been duly authenticated and
delivered hereunder. Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by Success
Bancshares, and Success Bancshares shall deliver such Security to the Trustee
for cancellation as provided in Section 3.10, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 3.4. Temporary Securities.
Pending the preparation of definitive Securities, Success Bancshares
may execute, and upon receipt of a Company Order the Trustee shall authenticate
and deliver, temporary Securities that are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, Success Bancshares will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of Success Bancshares designated for that
purpose without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities, Success Bancshares shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive securities, of any authorized denominations having the same
Original Issue Date and Stated Maturity and having the same terms as such
temporary Securities. Until so exchanged, the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities.
SECTION 3.5. Global Securities.
(a) Each Global Security issued under this Indenture shall be
registered in the name of the Depositary designated by Success Bancshares for
such Global Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
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(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged for Securities registered in the names of persons
other than the Depositary or its nominee unless (i) the Depositary notifies the
Trustee that it is unwilling or unable to continue as a depositary for such
Global Security and Success Bancshares is unable to locate a qualified
successor depositary, (ii) Success Bancshares executes and delivers to the
Trustee a written order stating that it elects to terminate the book-entry
system through the Depositary or (iii) there shall have occurred and be
continuing an Event of Default.
(c) If any Global Security is to be exchanged for other Securities or
cancelled in whole, it shall be surrendered by or on behalf of the Depositary
or its nominee to the Securities Registrar for exchange or cancellation as
provided in this Article III. If any Global Security is to be exchanged for
other Securities or cancelled in part, or if another Security is to be
exchanged in whole or in part for a beneficial interest in any Global Security,
then either (i) such Global Security shall be so surrendered for exchange or
cancellation as provided in this Article III or (ii) the principal amount
thereof shall be reduced, or increased by an amount equal to the portion
thereof to be so exchanged or cancelled, or equal to the principal amount of
such other Security to be so exchanged for a beneficial interest therein, as
the case may be, by means of an appropriate adjustment made on the records of
the Securities Registrar, whereupon the Trustee, in accordance with the
Applicable Procedures, shall instruct the Depositary or its authorized
representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of a Global Security by the Depositary, accompanied
by registration instructions, the Trustee shall, subject to Section 3.6(b) and
as otherwise provided in this Article III, authenticate and deliver any
Securities issuable in exchange for such Global Security (or any portion
thereof) in accordance with the instructions of the Depositary. The Trustee
shall not be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be fully protected in relying on, such
instructions.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article III, Section 9.6 or 11.6 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Security, unless such Security is registered in the name of a Person
other than the Depositary for such Global Security or a nominee thereof.
(e) The Depositary or its nominee, as the registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under
this Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the Applicable
Procedures. Accordingly, any such owner's beneficial interest in a Global
Security shall be shown only on, and the transfer of such interest shall be
effected only through, records maintained by the Depositary or its nominee or
agent. Neither the Trustee nor the Securities Registrar shall have any
liability in respect of any transfers effected by the Depositary.
(f) The rights of owners of beneficial interests in a Global Security
shall be exercised only through the Depositary and shall be limited to those
established by law and agreements between such owners and the Depositary and/or
its Agent Members.
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SECTION 3.6. Registration, Transfer and Exchange Generally;
Certain Transfers and Exchanges.
(a) Success Bancshares shall cause to be kept at the Corporate Trust
Office of the Trustee a register in which, subject to such reasonable
regulations as it may prescribe, Success Bancshares shall provide for the
registration of Securities and transfers of Securities. Such register is herein
sometimes referred to as the "Securities Register." The Trustee is hereby
appointed "Securities Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at the
offices or agencies of Success Bancshares designated for that purpose, Success
Bancshares shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Securities of any authorized denominations of like tenor and aggregate
principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations, of like tenor and aggregate
principal amount upon surrender of the Securities to be exchanged at such
office or agency. Whenever any securities are so surrendered for exchange,
Success Bancshares shall execute, and the Trustee shall authenticate and
deliver, the Securities that the Holder making the exchange is entitled to
receive.
All Securities issued upon any transfer or exchange of Securities
shall be the valid obligations of Success Bancshares, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Every Security presented or surrendered for transfer or exchange shall
(if so required by Success Bancshares or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to Success
Bancshares and the Securities Registrar, duly executed by the Holder thereof or
such Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or
exchange of Securities, but Success Bancshares may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Securities.
Neither Success Bancshares nor the Trustee shall be required, pursuant
to the provisions of this Section, (i) to issue, register the transfer of or
exchange any Security during a period beginning at the opening of business 15
days before the day of selection for redemption of Securities pursuant to
Article XI and ending at the close of business on the day of mailing of the
notice of redemption, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except, in the case of
any such Security to be redeemed in part, any portion thereof not to be
redeemed.
(b) Certain Transfers and Exchanges. Notwithstanding any other
provision of this Indenture, transfers and exchanges of Securities and
beneficial interests in a Global Security shall be made only in accordance with
this Section 3.6(b).
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(i) Non-Global Security to Non-Global Security. A Security that is
not a Global Security may be transferred, in whole or in part, to a
Person who takes delivery in the form of another Security that is not
a Global Security as provided in Section 3.6(a).
(ii) Exchanges Between Global Security and Non-Global Security. A
beneficial interest in a Global Security may be exchanged for a
Security that is not a Global Security as provided in Section 3.5.
SECTION 3.7. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together with
such security or indemnity as may be required by Success Bancshares or the
Trustee to save each of them harmless, Success Bancshares shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security, of
like tenor and aggregate principal amount, bearing the same legends, and
bearing a number not contemporaneously outstanding.
If there shall be delivered to Success Bancshares and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to Success
Bancshares or the Trustee that such Security has been acquired by a bona fide
purchaser, Success Bancshares shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security, of like tenor and aggregate principal amount and
bearing the same legends as such destroyed, lost or stolen Security, and
bearing a number not contemporaneously outstanding.
If any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, Success Bancshares in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 3.7, Success
Bancshares may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of Success Bancshares, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 3.8. Payment of Interest and Additional Interest; Interest
Rights Preserved.
Interest and Additional Interest on any Security that is payable, and
is punctually paid or duly provided for, on any Interest Payment Date, shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest in respect of Securities, except that, unless otherwise
provided in the Securities, interest payable on the Stated Maturity of the
principal of a Security shall be paid to the Person to whom principal is paid.
The initial payment of interest on any Security that is issued between a
Regular Record Date and the related Interest Payment Date shall be computed on
a pro rata basis, based on the number of days between such Regular Record Date
and such Interest Payment Date, and shall be payable on the next succeeding
Interest Payment Date following such Interest Payment Date.
Any interest on any Security that is due and payable, but is not
timely paid or duly provided for, on any Interest Payment Date ("DEFAULTED
INTEREST") shall forthwith cease to be payable to the registered Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by Success Bancshares, at its election in each
case, as provided in clause (1) or (2) below:
(1) Success Bancshares may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities in respect of
which interest is in default (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed
in the following manner. Success Bancshares shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment, at the same time Success
Bancshares shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon, the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest, which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify Success Bancshares
of such Special Record Date and, in the name and at the expense of
Success Bancshares, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first class, postage prepaid, not less than 10 days prior to such
Special Record Date, to each Holder of a Security at the address of
such Holder as it appears in the Securities Register. The Trustee may,
in its discretion, in the name and at the expense of Success
Bancshares, cause a similar notice to be published at least once in a
newspaper, customarily published in the English language on each
Business Day and of general circulation in the Borough of Manhattan,
The City of New York, but such publication shall not be a condition
precedent to the establishment of such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2).
(2) Success Bancshares may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on
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which the Securities in respect of which interest is in default may be
listed and, upon such notice as may be required by such exchange (or
by the Trustee if the Securities are not listed), if, after notice
given by Success Bancshares to the Trustee of the proposed payment
pursuant to this clause 2, such payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue interest, that were carried by such
other Security.
SECTION 3.9. Persons Deemed Owners.
Success Bancshares, the Trustee and any agent of Success Bancshares or
the Trustee shall treat the Person in whose name any Security is registered as
the owner of such Security for the purpose of receiving payment of principal of
and (subject to Section 3.8) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither
Success Bancshares, the Trustee nor any agent of Success Bancshares or the
Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary may be treated by Success
Bancshares, the Trustee and any agent of Success Bancshares or the Trustee as
the owner of such Global Security for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent Success Bancshares, the Trustee or
any agent of Success Bancshares or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by a Depositary
or impair, as between a Depositary and such holders of beneficial interests,
the operation of customary practices governing the exercise of the rights of
the Depositary (or its nominee) as Holder of any Security.
SECTION 3.10. Cancellation.
All Securities surrendered for payment, redemption, transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities and Securities surrendered
directly to the Trustee for any such purpose shall be promptly canceled by it.
Success Bancshares may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder that Success
Bancshares may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities shall be destroyed by the Trustee and the Trustee shall deliver to
Success Bancshares a certificate of such destruction.
SECTION 3.11. Computation of Interest.
Interest on the Securities for any period shall be computed on the
basis of a 360-day year of twelve 30-day months and the actual number of days
elapsed in any partial month in
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such period, and interest on the Securities for a full period shall be computed
by dividing the rate per annum by the number of interest periods that together
constitute a full twelve months.
SECTION 3.12. Deferrals of Interest Payment Dates.
So long as no Event of Default has occurred and is continuing, Success
Bancshares shall have the right, at any time during the term of the Securities,
from time to time to defer the payment of interest on such Securities for such
period or periods (each an "EXTENSION PERIOD") not to exceed 20 consecutive
quarterly periods with respect to each Extension Period, during which Extension
Periods Success Bancshares shall have the right to make partial payments of
interest on any Interest Payment Date. No Extension Period shall end on a date
other than an Interest Payment Date. At the end of any such Extension Period,
Success Bancshares shall pay all interest then accrued and unpaid on the
Securities (together with Additional Interest thereon, if any, at the rate
specified for the Securities to the extent permitted by applicable law);
provided, however, that no Extension Period shall extend beyond the Stated
Maturity of the principal of the Securities; and provided further, however,
that, during any such Extension Period, Success Bancshares shall not (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of Success Bancshares'
capital stock (other than (a) paying dividends or distributions in common stock
of Success Bancshares, (b) redeeming rights or taking certain other actions
under a shareholders' rights plan, (c) reclassifying any class of Success
Bancshares' capital stock into another class of capital stock and (d)
purchasing Success Bancshares' common stock related to rights under any of
Success Bancshares' benefit plans for its Directors, officers or employees),
(ii) make any payment of principal, interest or premium, if any, on, or repay,
repurchase or redeem, any debt securities of Success Bancshares that rank pari
passu with or junior in interest to the Securities (except for payments under
the Guarantee) or (iii) redeem, purchase or acquire less than all of the
Securities or any of the Preferred Securities. Prior to the termination of
any such Extension Period, Success Bancshares may further defer the payment of
interest, provided that no Event of Default has occurred and is continuing and
provided further, that no Extension Period shall exceed twenty (20) consecutive
quarterly periods or extend beyond the Stated Maturity of the principal of such
Securities or end on a date other than an Interest Payment Date. Upon the
termination of any such Extension Period and upon the payment of all accrued
and unpaid interest and any Additional Interest then due on any Interest
Payment Date, Success Bancshares may elect to begin a new Extension Period,
subject to the above conditions. No interest or Additional Interest shall be
due and payable during an Extension Period, except at the end thereof, but each
installment of interest that would otherwise have been due and payable during
such Extension Period shall bear Additional Interest. Success Bancshares shall
give the Trustee notice of its election to begin any such Extension Period at
least one Business Day prior to the next succeeding Interest Payment Date on
which interest on Securities would be payable but for such deferral or, with
respect to any Securities issued to Success Capital, so long as any such
Securities are held by Success Capital, at least one Business Day prior to the
earlier of (i) the next succeeding date on which Distributions on the Preferred
Securities of Success Capital would be payable but for such deferral, and (ii)
the date on which the Property Trustee of Success Capital is required to give
notice to holders of such Preferred Securities of the record date or the date
such Distributions are payable, but in any event not less than one Business Day
prior to such record date.
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The Trustee shall promptly give notice of Success Bancshares's
election to begin any such Extension Period to the Holders of the Outstanding
Securities.
SECTION 3.13. Right of Set-Off.
With respect to the Securities initially issued to Success Capital,
notwithstanding anything to the contrary herein, Success Bancshares shall have
the right to set off any payment it is otherwise required to make in respect of
any such Security to the extent Success Bancshares has theretofore made, or is
concurrently on the date of such payment making, a payment under the Guarantee
relating to such Security or to a holder of Preferred Securities pursuant to an
action undertaken under Section 5.8 of this Indenture.
SECTION 3.14. Agreed Tax Treatment.
Each Security issued hereunder shall provide that Success Bancshares
and, by its acceptance of a Security or a beneficial interest therein, the
Holder of, and any Person that acquires a beneficial interest in, such Security
agree that for United States federal, state and local tax purposes it is
intended that such Security constitutes indebtedness.
SECTION 3.15. CUSIP Numbers.
Success Bancshares, in issuing the Securities, may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers
in notice of redemption and other similar or related materials as a convenience
to Holders; provided that any such notice or other materials may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption or other
materials and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
SECTION 3.16 Shortening of Stated Maturity
Success Bancshares shall have the right to shorten the Stated Maturity
of the principal of the Securities at any time to any date not earlier than
________, 2003, subject to Success Bancshares having received prior approval of
the Federal Reserve if then required under applicable capital guidelines or
policies of the Federal Reserve. In the event Success Bancshares elects to
shorten the Stated Maturity of the Securities, it shall give notice to the
Holders, the Trustee and, in the case of Securities issued to Success Capital,
Success Capital of such shortening no less than 90 days prior to the
effectiveness thereof.
Section 3.17 Listing of Securities Upon Liquidation of Success
Capital
If the Securities are distributed to the holders of Preferred
Securities pursuant to Section 9.4 of the Trust Agreement, Success Bancshares
will use its best efforts to list the Securities on the Nasdaq National Market
or such other stock exchange or automated quotation system, if any, on which the
Preferred Securities are then listed or quoted. The Trustee, the Property
Trustee, the Delaware Trustee and the Guarantee Trustee shall have no obligation
to list the Securities on any stock exchange or automated quotation system.
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ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for and as otherwise provided
in this Section 4.1) and the Trustee, on demand of and at the expense of
Success Bancshares, shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities that have been destroyed, lost or stolen
and that have been replaced or paid as provided in Section 3.7 and
(ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by Success
Bancshares and thereafter repaid to Success Bancshares or discharged
from such trust, as provided in Section 10.3) have been delivered to
the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year of the date of deposit, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of Success Bancshares,and Success Bancshares, in the
case of subclause (B)(i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount in the currency or currencies
in which the Securities are payable sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for the
principal (and premium, if any) and interest (including any
Additional Interest) to the date of such deposit (in the case
of Securities that have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) Success Bancshares has paid or caused to be paid all other sums
payable hereunder by Success Bancshares; and
(3) Success Bancshares has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of Success Bancshares to the Trustee under Section 6.7,
the obligations of Success Bancshares to any Authenticating Agent
under Section 6.14 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 4.2 and the last paragraph of
Section 10.3 shall survive.
SECTION 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by the Trustee, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including Success Bancshares acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal (and premium,
if any) and interest and Additional Interest for the payment of which such
money or obligations have been deposited with or received by the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default.
"Event of Default", wherever used herein with respect to the
Securities, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any Security,
including any Additional Interest in respect thereof, when it becomes
due and payable and continuance of such default for a period of 30
days (subject to the deferral of any due date in the case of an
Extension Period); or
(2) default in the payment of the principal of any Security
when due, whether at maturity, upon redemption, by declaration of
acceleration or otherwise; or
(3) failure on the part of Success Bancshares duly to observe
or perform in any material respect any other of the covenants or
agreements on the part of Success Bancshares in the Securities or in
this Indenture for a period of 60 days after the date on which written
notice of such failure, requiring Success Bancshares to remedy the
same, shall have been given to Success Bancshares by the Trustee by
registered or certified mail or to Success Bancshares and the Trustee
by the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities; or
(4) the occurrence of the appointment of a receiver or other
similar official in any liquidation, insolvency or similar proceeding
with respect to Success Bancshares or all or substantially all of its
property; or a court or other governmental agency shall enter a
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decree or order appointing a receiver or similar official and such
decree or order shall remain unstayed and undischarged for a period of
60 days; or
(5) any other Event of Default provided with respect to the
Securities.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 5.1(4)) with respect to Securities at the time Outstanding occurs and
is continuing, then, and in every such case, the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Outstanding Securities may
declare the principal amount (or, if the Securities are Discount Securities,
such portion of the principal amount as may be specified in the terms) of all
the Securities to be due and payable immediately, by a notice in writing to
Success Bancshares (and to the Trustee if given by Holders), provided that, if,
upon an Event of Default, the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities fail to declare the principal of
all the Outstanding Securities to be immediately due and payable, the holders
of at least 25% in aggregate Liquidation Amount (as defined in the Trust
Agreement) of the Preferred Securities issued by Success Capital then
outstanding shall have the right to make such declaration by a notice in
writing to Success Bancshares and the Trustee; and upon any such declaration
such principal amount (or specified portion thereof) of and the accrued
interest (including any Additional Interest) on all the Securities shall become
immediately due and payable. If an Event of Default specified in Section 5.1(4)
with respect to Securities at the time Outstanding occurs, the principal amount
of all the Securities (or, if the Securities are Discount Securities, such
portion of the principal amount of such Securities as may be specified by the
terms) shall automatically, and without any declaration or other action on the
part of the Trustee or any Holder, become immediately due and payable. Payment
of principal and interest (including any Additional Interest) on such
Securities shall remain subordinated to the extent provided in Article XIII
notwithstanding that such amount shall become immediately due and payable as
herein provided.
At any time after such a declaration of acceleration with respect to
the Securities has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities, by written notice to Success Bancshares and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) Success Bancshares has paid or deposited with the Trustee
a sum sufficient to pay:
(A) all overdue installments of interest on all
Securities;
(B) any accrued Additional Interest on all
Securities;
(C) the principal of (and premium, if any, on) any
Securities that have become due otherwise than by such
declaration of acceleration and interest and Additional
Interest thereon at the rate borne by the Securities; and
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(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities, other
than the non-payment of the principal of Securities that has become
due solely by such acceleration, have been cured or waived as provided
in Section 5.13.
If the Holders of Securities fail to annul such declaration and waive
such default, the holders of a majority in aggregate Liquidation Amount (as
defined in the Trust Agreement) of Preferred Securities issued by Success
Capital then outstanding shall also have the right to rescind and annul such
declaration and its consequences by written notice to Success Bancshares and
the Trustee, subject to the satisfaction of the conditions set forth in clauses
(1) and (2) above of this section 5.2.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee.
Success Bancshares covenants that if:
(1) default is made in the payment of any installment of interest
(including any Additional Interest) on any Security when such interest
becomes due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal of (and premium,
if any, on) any Security at the Stated Maturity thereof.
Success Bancshares will, upon demand of the Trustee, pay to the
Trustee, for the benefit of the Holders of the Securities, the whole amount
then due and payable on the Securities for principal (and premium, if any) and
interest (including any Additional Interest), and, in addition thereto, all
amounts owing the Trustee under Section 6.7.
If Success Bancshares fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against Success Bancshares or any other obligor upon such
Securities and collect the monies adjudged or decreed to be payable in the
manner provided by law out of the property of Success Bancshares or any other
obligor upon the Securities, wherever situated.
If an Event of Default with respect to Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant
or agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
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SECTION 5.4. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial or
administrative proceeding relative to Success Bancshares or any other obligor
upon the Securities or the property of Success Bancshares or of such other
obligor or their creditors,
(a) the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on Success Bancshares for the payment of overdue principal (and premium, if
any) or interest (including any Additional Interest)) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest (including any Additional Interest)
owing and unpaid in respect to the Securities and to file such other
papers or documents as may be necessary or advisable and to take any
and all actions as are authorized under the Trust Indenture Act in
order to have the claims of the Holders and any predecessor to the
Trustee under Section 6.7 allowed in any such judicial or
administrative proceedings; and
(ii) in particular, the Trustee shall be authorized to collect and
receive any monies or other property payable or deliverable on any
such claims and to distribute the same in accordance with Section 5.6;
and
(b) any custodian, receiver, assignee, trustee, liquidator,
sequestrator, conservator (or other similar official) in any such judicial or
administrative proceeding is hereby authorized by each Holder to make such
payments to the Trustee for distribution in accordance with Section 5.6, and in
the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it and any
predecessor Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 5.5. Trustee May Enforce Claim Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the 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,
subject to Article XIII and after provision for the payment of all the amounts
owing the Trustee and any predecessor Trustee under Section 6.7, its agents and
counsel, be for the ratable benefit of the Holders of the Securities in respect
of which such judgment has been recovered.
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SECTION 5.6. Application of Money Collected.
Any money or property collected or to be applied by the Trustee with
respect to the Securities pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money or property on account of principal (or premium, if
any) or interest (including any Additional Interest), upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.7;
SECOND: Subject to Article XIII, to the payment of the amounts then
due and unpaid upon Securities for principal (and premium, if any) and interest
(including any Additional Interest) in respect of which or for the benefit of
which such money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest (including any Additional
Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 5.7. Limitation on Suits.
Subject to Section 5.8, no Holder of any Securities shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture or for the appointment of a receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in aggregate principal amount of the Outstanding
Securities; it being understood and intended that no one or more of
such Holders shall have any right in any manner whatever by virtue of,
or by availing itself of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders of Securities, or
to obtain or to seek to obtain priority or preference
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over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and
ratable benefit of all such Holders.
SECTION 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest; Direct Action by Holders of
Preferred Securities.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Sections 3.8 and 3.12) interest (including any Additional Interest) on such
Security on the Stated Maturity (or in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such right shall not be impaired without the consent of such Holder. Any
registered holder of the Preferred Securities issued by Success Capital shall
have the right, upon the occurrence of an Event of Default described in Section
5.1(1) or 5.1(2), to institute a suit directly against Success Bancshares for
enforcement of payment to such holder of principal of (premium, if any) and
(subject to Sections 3.8 and 3.12) interest (including any Additional Interest)
on the Securities having a principal amount equal to the aggregate Liquidation
Amount (as defined in the Trust Agreement) of such Preferred Securities held by
such holder.
SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Preferred Securities
issued by Success Capital has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee, such
Holder or such holder of Preferred Securities, then, and in every such case,
Success Bancshares, the Trustee, such Holders and such holder of Preferred
Securities shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee, such Holder and such holder of
Preferred Securities shall continue as though no such proceeding had been
instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.7, no
right or remedy herein conferred upon or reserved to the Trustee or the Holders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any Security with
respect to the Securities or any holder of any Preferred Security to exercise
any right or remedy accruing upon any Event of Default with respect to the
Securities shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein.
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Every right and remedy given by this Article or by law to the Trustee
or to the Holders and the right and remedy given to the holders of Preferred
Securities by Sections 5.2 and 5.8 may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee, the Holders or the holders of
Preferred Securities, as the case may be.
SECTION 5.12. Control by Holders.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding 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, with respect to the
Securities, provided that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow such direction if a
Responsible Officer or Officers of the Trustee shall, in good faith,
determine that the proceeding so directed would be unjustly
prejudicial to the Holders not joining in any such direction or would
involve the Trustee in personal liability.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities affected thereby and the holders of a majority in
aggregate Liquidation Amount (as defined in the Trust Agreement) of the
Preferred Securities issued by Success Capital may waive any past default
hereunder and its consequences except a default:
(1) in the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on any Security (unless
such default has been cured and Success Bancshares has paid to or
deposited with the Trustee a sum sufficient to pay all matured
installments of interest (including Additional Interest) and all
principal of (and premium, if any, on) all Securities due otherwise
than by acceleration), or
(2) in respect of a covenant or provision hereof that under
Article IX cannot be modified or amended without the consent of each
Holder of any Outstanding Security affected.
Any such waiver shall be deemed to be on behalf of the Holders of all
the Securities, or in the case of waiver by holders of Preferred Securities
issued by Success Capital, by all holders of Preferred Securities issued by
Success Capital.
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.
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SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may,
in its discretion, require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may,
in its discretion, assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant, but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in aggregate principal amount of the Outstanding
Securities, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest (including any
Additional Interest) on any Security on or after the Stated Maturity.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
Success Bancshares covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and Success
Bancshares (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture, but in the case of any such certificates or
opinions that by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture.
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(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct except that
(1) this subsection shall not be construed to limit the effect
of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of Holders pursuant to Section 5.12 relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Securities.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 6.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to the
Securities, the Trustee shall transmit by mail to all Holders of Securities, as
their names and addresses appear in the Securities Register, notice of such
default, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest (including any Additional Interest) on any
Security, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders of
Securities; and provided further, that, in the case of any default of the
character specified in Section 5.1(3), no such notice to Holders of Securities
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event that is, or after
notice or lapse of time or both would become, an Event of Default with respect
to the Securities.
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SECTION 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(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,
Security 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 Success Bancshares mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(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 against the costs,
expenses and liabilities that 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, indenture,
Security or other paper or document, but the Trustee in its discretion may make
such inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such inquiry or investigation, it
shall be entitled to examine the books, records and premises of Success
Bancshares, personally or by agent or attorney; and
(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.
SECTION 6.4. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
Success Bancshares, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by Success Bancshares of the Securities
or the proceeds thereof.
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SECTION 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Securities Registrar or any other agent of Success Bancshares, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 6.8 and 6.13, may otherwise deal with Success
Bancshares with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Securities Registrar or such other agent.
SECTION 6.6. 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 Success Bancshares.
SECTION 6.7. Compensation and Reimbursement.
(a) Success Bancshares agrees to pay to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder in such
amounts as Success Bancshares and the Trustee shall agree from time to time
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust).
(b) Success Bancshares agrees to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its agents and counsel), except any such expense, disbursement or advance as
may be attributable to its negligence or bad faith.
(c) Since Success Capital is being formed solely to facilitate an
investment in the Preferred Securities, Success Bancshares, as Holder of the
Common Securities, hereby covenants to pay all debts and obligations (other than
with respect to the Preferred Securities and the Common Securities) and all
reasonable costs and expenses of Success Capital (including all costs and
expenses relating to the organization of Success Capital, the fees and expenses
of the trustees and all reasonable costs and expenses relating to the operation
of Success Capital) and to pay any and all taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes) imposed
on Success Capital by the United States, or any taxing authority, so that the
net amounts received and retained by Success Capital and the Property Trustee
after paying such expenses will be equal to the amounts Success Capital and the
Property Trustee would have received had no such costs or expenses been incurred
by or imposed on Success Capital. The foregoing obligations of Success
Bancshares are for the benefit of, and shall be enforceable by, any person to
whom any such debts, obligations, costs, expenses and taxes are owed (each, a
"CREDITOR") whether or not such Creditor has received notice thereof. Any such
Creditor may enforce such obligations directly against Success Bancshares, and
Success Bancshares irrevocably waives any right or remedy to require that any
such Creditor take any action against Success Capital or any other person before
proceeding against Success Bancshares. Success Bancshares shall execute such
additional agreements as may be necessary or desirable to give full effect to
the foregoing.
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(d) Success Bancshares shall indemnify the Trustee, its directors,
officers, employees and agents for, and hold them harmless against, any loss,
liability or expense (including the reasonable compensation and the
expenses and disbursements of its agents and counsel) incurred without
negligence or bad faith, arising out of or in connection with the acceptance or
administration of this trust or the performance of its duties hereunder,
including the reasonable costs and expenses of defending against any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder. This indemnification shall survive the termination of
this Indenture or the resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(4) occurs, the expenses and the compensation
for the services are intended to constitute expenses of administration under
the Bankruptcy Reform Act of 1978 or any successor statute.
SECTION 6.8. Disqualification; Conflicting Interests.
The Trustee for the Securities issued hereunder shall be subject to
the provisions of Section 310(b) of the Trust Indenture Act. Nothing herein
shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of said Section 310(b).
SECTION 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be:
(a) an entity organized and doing business under the laws of the
United States of America or of any state or territory thereof or of the
District of Columbia, authorized under such laws to exercise corporate trust
powers and subject to supervision or examination by federal, state, territorial
or District of Columbia authority, or
(b) an entity or other Person organized and doing business under the
laws of a foreign government that is permitted to act as Trustee pursuant to a
rule, regulation or order of the Commission, authorized under such laws to
exercise corporate trust powers, and subject to supervision or examination by
authority of such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to United
States institutional trustees;
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by federal or state authority. If such
entity publishes reports of condition at least annually, pursuant to law or to
the requirements of the aforesaid supervising or examining authority, then, for
the purposes of this Section, the combined capital and surplus of such entity
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article. Neither Success Bancshares nor any Person directly or indirectly
controlling, controlled by or under common control with Success Bancshares
shall serve as Trustee for the Securities issued hereunder.
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SECTION 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
by giving written notice thereof to Success Bancshares. 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 with respect to the
Securities by Act of the Holders of a majority in aggregate principal amount of
the Outstanding Securities, delivered to the Trustee and to Success Bancshares.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after written
request therefor by Success Bancshares or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and shall
fail to resign after written request therefor by Success Bancshares or by any
such Holder, or
(3) 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 any such case, (i) Success Bancshares, acting pursuant
to the authority of a Board Resolution, may remove the Trustee with respect to
the Securities issued hereunder, or (ii) subject to Section 5.14, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of such Holder and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to the
Securities issued hereunder and the appointment of a successor Trustee or
Trustees.
(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 with
respect to the Securities, Success Bancshares, by a Board Resolution, shall
promptly appoint a successor Trustee with respect to the Securities. If, within
one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities shall be
appointed by Act of the Holders of a majority in aggregate principal amount of
the Outstanding Securities delivered to Success Bancshares and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to
the Securities and supersede the successor Trustee appointed by Success
Bancshares. If no successor Trustee with respect to the Securities shall have
been so appointed by Success Bancshares or the Holders and accepted appointment
in the manner hereinafter provided, any Holder who has been a bona fide Holder
of a Security for at least six months may, subject to Section 5.14, on behalf
of such Holder and all others similarly situated,
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petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities.
(f) Success Bancshares shall give notice of each resignation and each
removal of the Trustee with respect to the Securities and each appointment of a
successor Trustee with respect to the Securities by mailing written notice of
such event by first-class mail, postage prepaid, to the Holders of Securities
as their names and addresses appear in the Securities Register. Each notice
shall include the name of the successor Trustee with respect to the Securities
and the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to Success Bancshares and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of Success Bancshares 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.
(b) Upon request of any such successor Trustee, Success Bancshares
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all rights, powers and trusts referred
to in paragraph (a) of this Section.
(c) No successor Trustee shall accept its appointment unless, at the
time of such acceptance, such successor Trustee shall be qualified and eligible
under this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business.
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
entity succeeding to all or substantially all of the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
entity shall be otherwise qualified and eligible under this Article, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated, and in case any
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee or
in the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
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SECTION 6.13. Preferential Collection of Claims Against Success
Bancshares.
If and when the Trustee shall be or become a creditor of Success
Bancshares (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection
of claims against Success Bancshares (or any such other obligor).
SECTION 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to the Securities, which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
3.7, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to Success
Bancshares and shall at all times be an entity organized and doing business
under the laws of the United States of America, or of any state or territory
thereof or of the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or state
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any entity into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any entity resulting from
any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any entity succeeding to all or substantially all of the
corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such entity shall be otherwise
eligible under this Section, without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to Success Bancshares. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to Success Bancshares. Upon receiving
such a notice of resignation or upon such a termination, or in case at any
time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent, which shall be acceptable to Success Bancshares and shall
give notice of such appointment in the manner provided in Section 1.6 to all
Holders of Securities. Any successor Authenticating Agent upon acceptance
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provision of this Section.
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Success Bancshares agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for any such payment to each
Authenticating Agent, subject to the provisions of Section 6.7.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities referred to in the within mentioned
Indenture.
Dated: BANKERS TRUST COMPANY,
------------------------- as Trustee
By:
-------------------------
As Authenticating Agent
Name:
-----------------------
Title:
----------------------
By:
-------------------------
As Authenticating Agent
Name:
-----------------------
Title:
----------------------
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE,
PAYING AGENT AND COMPANY
SECTION 7.1. Success Bancshares to Furnish Trustee Names and
Addresses of Holders.
Success Bancshares will furnish or cause to be furnished to the
Trustee:
(a) quarterly, not more than 15 days after the 15th day of March,
June, September, and December in each year, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders as of such
dates, excluding from any such list names and addresses received by the Trustee
in its capacity as Securities Registrar, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by Success Bancshares of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished, excluding from any such list names and addresses
received by the Trustee in its capacity as Securities Registrar.
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SECTION 7.2. Preservation of Information, Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided in the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with Success Bancshares and the Trustee that neither Success Bancshares
nor the Trustee nor any agent of either of them shall be held accountable by
reason of the disclosure of information as to the names and addresses of the
Holders made pursuant to the Trust Indenture Act.
SECTION 7.3. Reports by Trustee and Paying Agent.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act, at the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of not
more than 12 months shall be transmitted within 60 days of January 31 in each
calendar year, commencing with the first January 31 after the issuance of
Securities under this Indenture.
(c) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each securities exchange upon which
any Securities are listed and also with the Commission. Success Bancshares will
notify the Trustee when any Securities are listed on any securities exchange.
(d) The Paying Agent shall comply with all withholding, backup
withholding, tax and information reporting requirements under the Internal
Revenue Code of 1986, as amended, and the Treasury Regulations issued
thereunder with respect to payments on, or with respect to, the Securities.
SECTION 7.4. Reports by Success Bancshares.
Success Bancshares shall file or cause to be filed with the Trustee
and with the Commission, and transmit to Holders, such information, documents
and other reports, and such summaries thereof, as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided in the Trust
Indenture Act. In the case of information, documents or reports required to be
filed with the Commission pursuant to Section 13(a) or Section 15(d) of the
Exchange Act, Success Bancshares shall file or cause the filing of such
information documents or reports with the Trustee within 15 days after the same
is required to be filed with the Commission.
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ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Success Bancshares May Consolidate, Etc., Only on Certain
Terms.
Success Bancshares shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, and no Person shall consolidate with or merge into
Success Bancshares or convey, transfer or lease its properties and assets
substantially as an entirety to Success Bancshares, unless:
(1) If Success Bancshares shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the entity formed by such
consolidation or into which Success Bancshares is merged or the Person
that acquires by conveyance or transfer, or that leases, the
properties and assets of Success Bancshares substantially as an
entirety shall be an entity organized and existing under the laws of
the United States of America or any state thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of (and
premium, if any), and interest (including any Additional Interest) on
all the Securities of every series and the performance of every
covenant of this Indenture on the part of Success Bancshares to be
performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event that, after notice or lapse of time, or
both, would constitute an Event of Default, shall have occurred and be
continuing;
(3) such transaction is permitted under the Trust Agreement
and the Guarantee Agreement and does not give rise to any breach or
violation of the Trust Agreement or the Guarantee Agreement; and
(4) Success Bancshares has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease and any such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with and, in the case of a transaction subject to
this Section 8.1 but not requiring a supplemental indenture under
paragraph (1) of this Section 8.1, an Officer's Certificate or Opinion
of Counsel to the effect that the surviving, resulting or successor
entity is legally bound by the Indenture and the Securities; and the
Trustee, subject to Section 6.1, may rely upon such Officers'
Certificates and Opinions of Counsel as conclusive evidence that such
transaction complies with this Section 8.1.
SECTION 8.2. Successor Company Substituted.
Upon any consolidation or merger by Success Bancshares with or into
any other Person, or any conveyance, transfer or lease by Success Bancshares of
its properties and assets substantially as an entirety to any Person in
accordance with Section 8.1, the successor entity formed by such consolidation
or into which Success Bancshares is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
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exercise every right and power of, Success Bancshares under this Indenture with
the same effect as if such successor Person had been named as Success
Bancshares herein; and in the event of any such conveyance, transfer or lease
Success Bancshares shall be discharged from all obligations and covenants under
the Indenture and the Securities.
Such successor Person may cause to be executed, and may issue either
in its own name or in the name of Success Bancshares, any or all of the
Securities issuable hereunder that theretofore shall not have been signed by
Success Bancshares and delivered to the Trustee; and, upon the order of such
successor Person instead of Success Bancshares and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities that previously shall have been
signed and delivered by the officers of Success Bancshares to the Trustee for
authentication pursuant to such provisions and any Securities that such
successor Person thereafter shall cause to be executed and delivered to the
Trustee on its behalf for the purpose pursuant to such provisions. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture.
In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form may be made in the Securities thereafter
to be issued as may be appropriate.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, Success Bancshares, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may amend or waive any provision of this Indenture or enter into one or
more indentures supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(1) to evidence the succession of another Person to Success
Bancshares, and the assumption by any such successor of the covenants
of Success Bancshares herein and in the Securities contained; or
(2) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee or to surrender any right or power
herein conferred upon Success Bancshares; or
(3) to facilitate the issuance of Securities in certificated
or other definitive form; or
(4) to add to the covenants of Success Bancshares for the
benefit of the Holders of the Securities or to surrender any right or
power herein conferred upon Success Bancshares; or
(5) to add any additional Events of Default for the benefit of
the Holders of the Securities; or
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(6) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall not
apply to any Outstanding Securities; or
(7) to cure any ambiguity, to correct or supplement any
provision herein that may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided that such
action pursuant to this clause (7) shall not adversely affect the
interest of the Holders of Securities in any material respect or, in
the case of the Securities issued to Success Capital and for so long
as any of the Preferred Securities issued by Success Capital shall
remain outstanding, the holders of such Preferred Securities; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities and to
add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 6.11(b); or
(9) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the
Trust Indenture Act.
SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities affected by such
supplemental indenture, by Act of said Holders delivered to Success Bancshares
and the Trustee, Success Bancshares, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest (including any Additional Interest) on, any
Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof,
or reduce the amount of principal of a Discount Security that would be
due and payable upon a declaration of acceleration of the Stated
Maturity thereof pursuant to Section 5.2, or change the place of
payment where, or the coin or currency in which, any Security or
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or
(2) reduce the percentage in aggregate principal amount of the
Outstanding Securities, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
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(3) modify any of the provisions of this Section, Section 5.13
or Section 10.5, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Security affected
thereby;
provided, further, that, in the case of the Securities issued to
Success Capital, so long as any of the Preferred Securities issued by
Success Capital remains outstanding, (i) no such amendment shall be
made that adversely affects the holders of such Preferred Securities
in any material respect, and no termination of this Indenture shall
occur, and no waiver of any Event of Default or compliance with any
covenant under this Indenture shall be effective, without the prior
consent of the holders of at least a majority of the aggregate
Liquidation Amount (as defined in the Trust Agreement) of such
Preferred Securities then outstanding unless and until the principal
of (and premium, if any, on) the Securities and all accrued and
(subject to Section 3.8) unpaid interest (including any Additional
Interest) thereon have been paid in full, and (ii) no amendment shall
be made to Section 5.8 of this Indenture that would impair the rights
of the holders of Preferred Securities issued by Success Capital
provided therein without the prior consent of the holders of each such
Preferred Security then outstanding unless and until the principal of
(and premium, if any, on) the Securities of such series and all
accrued and (subject to Section 3.8) unpaid interest (including any
Additional Interest) thereon have been paid in full.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 6.1) shall be fully protected in relying upon,
an Officers' Certificate and an Opinion of Counsel stating that the execution
of such supplemental indenture is authorized or permitted by this Indenture,
and that all conditions precedent herein provided for relating to such action
have been complied with. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture that affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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SECTION 9.6. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
Success Bancshares, bear a notation in form approved by Success Bancshares as
to any matter provided for in such supplemental indenture. If Success
Bancshares shall so determine, new Securities so modified as to conform, in the
opinion of Success Bancshares, to any such supplemental indenture may be
prepared and executed by Success Bancshares and authenticated and delivered by
the Trustee in exchange for Outstanding Securities.
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ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
Success Bancshares covenants and agrees for the benefit of the
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest (including any Additional Interest) on the Securities in
accordance with the terms of such Securities and this Indenture.
SECTION 10.2. Maintenance of Office or Agency.
Success Bancshares will maintain in each Place of Payment an office or
agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and
where notices and demands to or upon Success Bancshares in respect of the
Securities and this Indenture may be served. Success Bancshares initially
appoints the Trustee, acting through its Corporate Trust Office, as its agent
for said purposes. Success Bancshares will give prompt written notice to the
Trustee of any change in the location of any such office or agency. If at any
time Success Bancshares shall fail to maintain such office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and Success Bancshares hereby appoints the Trustee as
its agent to receive all such presentations, surrenders, notices and demands.
Success Bancshares may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all of such purposes, and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve Success Bancshares of its obligation to maintain an
office or agency in each Place of Payment for Securities for such purposes.
Success Bancshares will give prompt written notice to the Trustee of any such
designation and any change in the location of any such office or agency.
SECTION 10.3. Money for Security Payments to be Held in Trust.
If Success Bancshares shall at any time act as its own Paying Agent
with respect to the Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest (including Additional Interest)
on any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest (including Additional Interest) so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided,
and will promptly notify the Trustee of its failure so to act.
Whenever Success Bancshares shall have one or more Paying Agents, it
will, prior to 10:00 a.m., New York City time, on each due date of the
principal of (or premium, if any) or interest, including Additional Interest on
any Securities, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest, including Additional Interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal (and premium, if any) or interest, including
Additional Interest, and (unless such
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Paying Agent is the Trustee) Success Bancshares will promptly notify the
Trustee of its failure so to act.
Success Bancshares will cause each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any, or interest (including Additional Interest)
on the Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(2) give the Trustee notice of any default by Success
Bancshares (or any other obligor upon such Securities) in the making
of any payment of principal (and premium, if any) or interest (or
Additional Interest) in respect of any Security;
(3) at any time during the continuance of any default with
respect to the Securities, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying
Agent; and
(4) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent.
Success Bancshares may, at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by Success Bancshares or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
Success Bancshares or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by Success Bancshares in trust for the payment of the principal of (and
premium, if any) or interest (including Additional Interest) on any Security
and remaining unclaimed for two years after such principal (and premium, if
any) or interest (including Additional Interest) has become due and payable
shall (unless otherwise required by mandatory provision of applicable escheat
or abandoned or unclaimed property law) be paid on Company Request to Success
Bancshares, or (if then held by Success Bancshares) shall (unless otherwise
required by mandatory provision of applicable escheat or abandoned or unclaimed
property law) be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to Success
Bancshares for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of Success Bancshares
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of Success Bancshares cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, the City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to Success Bancshares.
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SECTION 10.4. Statement as to Compliance.
Success Bancshares shall deliver to the Trustee, within 120 days after
the end of each fiscal year of Success Bancshares ending after the date hereof,
an Officers' Certificate covering the preceding calendar year, stating whether
or not to the best knowledge of the signers thereof of Success Bancshares is in
default in the performance, observance or fulfillment of or compliance with any
of the terms, provisions, covenants and conditions of this Indenture, and if
Success Bancshares shall be in default, specifying all such defaults and the
nature and status thereof of which they may have knowledge. For the purpose of
this Section 10.4, compliance shall be determined without regard to any grace
period or requirement of notice provided pursuant to the terms of this
Indenture.
SECTION 10.5. Waiver of Certain Covenants.
Subject to the rights of holders of Preferred Securities specified in
Section 9.2, if any, Success Bancshares may omit in any particular instance to
comply with any covenant or condition provided pursuant to Section 3.1, 9.1(3)
or 9.1(4) with respect to the Securities, if before or after the time for such
compliance the Holders of at least a majority in aggregate principal amount of
the Outstanding Securities shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of Success Bancshares in respect of any
such covenant or condition shall remain in full force and effect.
SECTION 10.6. Additional Sums.
So long as no Event of Default has occurred and is continuing and
except as otherwise specified as contemplated by Section 2.1 or Section 3.1, if
(i) Success Capital is the Holder of all of the Outstanding Securities, and
(ii) a Tax Event described in clause (i) or (iii) of the definition of "Tax
Event" in Section 1.1 hereof has occurred and is continuing in respect of
Success Capital, Success Bancshares shall pay Success Capital (and its
permitted successors or assigns under the Trust Agreement) for so long as
Success Capital (or its permitted successor or assignee) is the registered
holder of the Outstanding Securities, such additional sums as may be necessary
in order that the amount of Distributions (including any Additional Amounts (as
defined in the Trust Agreement)) then due and payable by Success Capital on the
Preferred Securities and Common Securities that at any time remain outstanding
in accordance with the terms thereof shall not be reduced as a result of any
Additional Taxes (the "Additional Sums"). Whenever in this Indenture or the
Securities there is a reference in any context to the payment of principal of
or interest on the Securities, such mention shall be deemed to include mention
of the payments of the Additional Sums provided for in this paragraph to the
extent that, in such context, Additional Sums are, were or would be payable in
respect thereof pursuant to the provisions of this paragraph and express
mention of the payment of Additional Sums (if applicable) in any provisions
hereof shall not be construed as excluding Additional Sums in those provisions
hereof where such express mention is not made; provided, however, that the
deferral of the payment of interest pursuant to Section 3.12 or the Securities
shall not defer the payment of any Additional Sums that may be due and payable.
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SECTION 10.7. Additional Covenants.
Success Bancshares covenants and agrees with each Holder of Securities
that it shall not (x) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
Success Bancshares capital stock (other than (a) paying dividends or
distributions on in common stock of Success Bancshares, (b) redeeming rights or
taking certain other actions under a shareholders' rights plan, (c)
reclassifying any class of Success Bancshares' capital stock into another class
of capital stock, and (d) purchasing Success Bancshares' common stock related to
rights under any of Success Bancshares' benefit plans for its Directors,
officers or employees), (y) make any payment of principal, interest or premium,
if any, on, or repay, repurchase or redeem, any debt securities of Success
Bancshares that rank pari passu with or junior in interest to the Securities
(except for payments under the Guarantee), or (z) redeem, purchase or acquire
less than all of the Securities or any of the Preferred Securities if at such
time (i) there shall have occurred any event (A) of which Success Bancshares has
actual knowledge that with the giving of notice or the lapse of time, or both,
would constitute an Event of Default with respect to the Securities, and (B)
which Success Bancshares shall not have taken reasonable steps to cure, (ii) if
the Securities are held by Success Capital, Success Bancshares shall be in
default with respect to its payment of any obligations under the Guarantee
relating to the Preferred Securities issued by Success Capital, or (iii) Success
Bancshares shall have given notice of its election to begin an Extension Period
with respect to the Securities as provided herein and shall not have rescinded
such notice, or such Extension Period, or any extension thereof, shall be
continuing.
Success Bancshares also covenants with each Holder of Securities
originally issued to Success Capital (i) to hold, directly or indirectly, 100%
of the Common Securities of Success Capital, provided that any permitted
successor of Success Bancshares as provided under Section 8.2 may succeed to
Success Bancshares's ownership of such Common Securities, (ii) as holder of such
Common Securities, not to voluntarily (and to use reasonable efforts not to
involuntarily) terminate, windup or liquidate Success Capital, other than (a) in
connection with a distribution of the Securities to the holders of the Preferred
Securities in liquidation of Success Capital, or (b) in connection with certain
mergers, consolidations or amalgamations permitted by the Trust Agreement, and
(iii) to use its reasonable efforts, consistent with the terms and provisions of
the Trust Agreement, to cause Success Capital to continue not to be taxable as a
corporation for United States federal income tax purposes.
SECTION 10.8. Original Issue Discount.
On or before December 15 of each year during which any Securities are
outstanding, Success Bancshares shall furnish to each Paying Agent such
information as may be reasonably requested by each Paying Agent in order that
each Paying Agent may prepare the information which it is required to report
for such year on Internal Revenue Service Forms 1096 and 1099 pursuant to
Section 6049 of the Internal Revenue Code of 1986, as amended. Such information
shall include the amount of original issue discount includible in income for
each authorized minimum denomination of principal amount at Stated Maturity of
outstanding Securities during such year.
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ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. Applicability of This Article.
Redemption of Securities as permitted or required by any form of
Security issued pursuant to this Indenture shall be made in accordance with
such form of Security and this Article; provided, however, that, if any
provision of any such form of Security shall conflict with any provision of
this Article, the provision of such form of Security shall govern.
SECTION 11.2. Election to Redeem; Notice to Trustee.
The election of Success Bancshares to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of Success Bancshares, Success Bancshares shall, not less than 30
nor more than 60 days prior to the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee and, in the case of
Securities held by Success Capital, the Property Trustee under the Trust
Agreement, of such date and of the principal amount of Securities to be
redeemed and provide the additional information required to be included in the
notice or notices contemplated by Section 11.4; provided that, for so long as
such Securities are held by Success Capital, such notice shall be given not
less than 45 nor more than 75 days prior to such Redemption Date (unless a
shorter notice shall be satisfactory to the Property Trustee under the Trust
Agreement). In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities,
Success Bancshares shall furnish the Trustee with an Officers' Certificate and
an Opinion of Counsel evidencing compliance with such restriction.
SECTION 11.3. Selection of Securities to be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of a portion
of the principal amount of any Security, provided that the unredeemed portion
of the principal amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such
Security.
The Trustee shall promptly notify Success Bancshares in writing of the
Securities selected for partial redemption and the principal amount thereof to
be redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security that has been or is to be
redeemed.
SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not later than the thirtieth day, and not earlier than the
sixtieth day, prior to the Redemption Date, to each Holder of Securities to be
redeemed, at the address of such Holder as it appears in the Securities
Register.
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With respect to Securities to be redeemed, each notice of redemption
shall state:
(a) the Redemption Date;
(b) the Redemption Price or, if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the estimate of
the Redemption Price provided pursuant to the Indenture together with a
statement that it is an estimate and that the actual Redemption Price will be
calculated on the third Business Day prior to the Redemption Date (if such an
estimate of the Redemption Price is given, a subsequent notice shall be given
as set forth above setting forth the Redemption Price promptly following the
calculation thereof);
(c) if less than all Outstanding Securities are to be redeemed, the
identification (and, in the case of partial redemption, the respective
principal amounts) of the particular Securities to be redeemed;
(d) that, on the Redemption Date, the Redemption Price will become due
and payable upon each such Security or portion thereof, and that interest
thereon, if any, shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be surrendered
for payment of the Redemption Price;
(f) such other provisions as may be required in respect of the terms
of the Securities; and
(g) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
Success Bancshares shall be given by Success Bancshares or, at Success
Bancshares's request, by the Trustee in the name and at the expense of Success
Bancshares and shall be irrevocable. The notice, if mailed in the manner
provided above, shall be conclusively presumed to have been duly given, whether
or not the Holder receives such notice. In any case, a failure to give such
notice by mail or any defect in the notice to the Holder of any Security
designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Security.
SECTION 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on the Redemption Date
specified in the notice of redemption given as provided in Section 11.4,
Success Bancshares will deposit with the Trustee or with one or more Paying
Agents (or if Success Bancshares is acting as its own Paying Agent, Success
Bancshares will segregate and hold in trust as provided in Section 10.3) an
amount of money sufficient to pay the Redemption Price of, and any accrued
interest (including Additional Interest) on, all the Securities (or portions
thereof) that are to be redeemed on that date.
SECTION 11.6. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section
11.4, the Securities or portion of Securities with respect to which such notice
has been given shall become due and
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payable on the date and at the place or places stated in such notice at the
applicable Redemption Price, together with accrued interest (including any
Additional Interest) to the Redemption Date. On presentation and surrender of
such Securities at a Place of Payment in said notice specified, the said
Securities or the specified portions thereof shall be paid and redeemed by
Success Bancshares at the applicable Redemption Price, together with accrued
interest (including any Additional Interest) to the Redemption Date; provided,
however, that, installments of interest (including Additional Interest) whose
Stated Maturity is on or prior to the Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant record dates according to
their terms and the provisions of Section 3.8.
Upon presentation of any Security redeemed in part only, Success
Bancshares shall execute and the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of Success Bancshares, a new Security or
Securities, of authorized denominations, in aggregate principal amount equal to
the unredeemed portion of the Security so presented and having the same
Original Issue Date, Stated Maturity and terms.
If any Security called for redemption shall not be so paid under
surrender thereof for redemption, the principal of and premium, if any, on such
Security shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
SECTION 11.7 Right of Redemption of Securities Initially Issued to
Success Capital.
Success Bancshares, at its option, may redeem such Securities, subject
to prior approval of the Federal Reserve, if then so required under applicable
guidelines and policies of the Federal Reserve, (i) on or after ______________,
2003, in whole at any time or in part from time to time, or (ii) upon the
occurrence and during the continuation of a Tax Event, an Investment Company
Event or a Capital Treatment Event, at any time within 90 days following the
occurrence and during the continuation of such Tax Event, Investment Company
Event or Capital Treatment Event, in whole (but not in part), in each case at a
Redemption Price specified in such Security, together with accrued interest
(including Additional Interest) to the Redemption Date.
If less than all the Securities are to be redeemed, the aggregate
principal amount of such Securities remaining Outstanding after giving effect
to such redemption shall be sufficient to satisfy any provisions of the Trust
Agreement.
ARTICLE XII
SINKING FUNDS
Except as may be provided in any supplemental or amended indenture, no
sinking fund shall be established or maintained for the retirement of
Securities.
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ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinate to Senior and Subordinated
Debt.
Success Bancshares covenants and agrees, and each Holder of a
Security, by its acceptance thereof, likewise covenants and agrees, that, to
the extent and in the manner hereinafter set forth in this Article, the payment
of the principal of (and premium, if any) and interest (including any
Additional Interest) on each and all of the Securities are hereby expressly
made subordinate and subject in right of payment to the prior payment in full
of all Senior and Subordinated Debt.
SECTION 13.2. No Payment When Senior and Subordinated Debt in
Default; Payment Over of Proceeds Upon Dissolution,
Etc.
If Success Bancshares shall default in the payment of any principal of
(or premium, if any) or interest on any Senior and Subordinated Debt when the
same becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration of acceleration or otherwise, then, upon written
notice of such default to Success Bancshares by the holders of Senior and
Subordinated Debt or any trustee therefor, unless and until such default shall
have been cured or waived or shall have ceased to exist, no direct or indirect
payment (in cash, property, securities, by set-off or otherwise) shall be made
or agreed to be made on account of the principal of (or premium, if any) or
interest (including Additional Interest) on any of the Securities, or in
respect of any redemption, repayment, retirement, purchase or other acquisition
of any of the Securities.
In the event of (i) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relating to Success Bancshares, its creditors or its property, (ii)
any proceeding for the liquidation, dissolution or other winding up of Success
Bancshares, voluntary or involuntary, whether or not involving insolvency or
bankruptcy proceedings, (iii) any assignment by Success Bancshares for the
benefit of creditors or (iv) any other marshalling of the assets of Success
Bancshares (each such event, if any, herein sometimes referred to as a
"Proceeding"), all Senior and Subordinated Debt (including any interest thereon
accruing after the commencement of any such proceedings) shall first be paid in
full before any payment or distribution, whether in cash, securities or other
property, shall be made to any Holder on account thereof. Any payment or
distribution, whether in cash, securities or other property (other than
securities of Success Bancshares or any other entity provided for by a plan of
reorganization or readjustment, the payment of which is subordinate, at least
to the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior and
Subordinated Debt at the time outstanding and to any securities issued in
respect thereof under any such plan of reorganization or readjustment), which
would otherwise (but for these subordination provisions) be payable or
deliverable in respect of the Securities shall be paid or delivered directly to
the holders of Senior and Subordinated Debt in accordance with the priorities
then existing among such holders until all Senior and Subordinated Debt
(including any interest thereon accruing after the commencement of any
Proceeding) shall have been paid in full.
In the event of any Proceeding, after payment in full of all sums owing
with respect to Senior and Subordinated Debt, the Holders of the Securities,
together with the holders of any obligations of Success Bancshares ranking on a
parity with the Securities, shall be entitled to be paid from the remaining
assets of Success Bancshares the amounts at the time due and owing on account of
unpaid principal of (and premium, if any) and interest (including Additional
Interest) on the Securities and such other obligations before any payment or
other distribution, whether in cash, property or otherwise, shall be made on
account of any capital stock or any obligations of Success
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Bancshares ranking junior to the Securities, and such other obligations. If,
notwithstanding the foregoing, any payment or distribution of any character or
any security, whether in cash, securities or other property (other than
securities of Success Bancshares or any other entity provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior and
Subordinated Debt at the time outstanding and to any securities issued in
respect thereof under any plan of reorganization or readjustment), shall be
received by the Trustee or any Holder in contravention of any of the terms
hereof and before all Senior and Subordinated Debt shall have been paid in full,
such payment or distribution or security shall be received in trust for the
benefit of, and shall be paid over or delivered and transferred to, the holders
of the Senior and Subordinated Debt at the time outstanding in accordance with
the priorities then existing among such holders for application to the payment
of all Senior and Subordinated Debt remaining unpaid, to the extent necessary to
pay all such Senior and Subordinated Debt in full. In the event of the failure
of the Trustee or any Holder to endorse or assign any such payment, distribution
or security, each holder of Senior and Subordinated Debt is hereby irrevocably
authorized to endorse or assign the same.
The Trustee and the Holders shall take such action (including the
delivery of this Indenture to an agent for the holders of Senior and
Subordinated Debt or consent to the filing of a financing statement with respect
hereto) as may, in the opinion of counsel designated by the holders of a
majority in principal amount of the Senior and Subordinated Debt at the time
outstanding, be necessary or appropriate to assure the effectiveness of the
subordination effected by these provisions.
The provisions of this Section 13.2 shall not impair any rights,
interests, remedies or powers of any secured creditor of Success Bancshares in
respect of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
The securing of any obligations of Success Bancshares, otherwise
ranking on a parity with the Securities or ranking junior to the Securities
shall not be deemed to prevent such obligations from constituting,
respectively, obligations ranking on a parity with the Securities or ranking
junior to the Securities.
SECTION 13.3. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) Success Bancshares, at any time, except
during the pendency of the conditions described in the first paragraph of
Section 13.2 or of any Proceeding referred to in Section 13.2, from making
payments at any time of principal of (and premium, if any) or interest
(including Additional Interest) on the Securities, or (b) the application by
the Trustee of any monies deposited with it hereunder to the payment of or on
account of the principal of (and premium, if any) or interest (including any
Additional Interest) on the Securities or the retention of such payment by the
Holders, if, at the time of such application by the Trustee, it did not have
knowledge that such payment would have been prohibited by the provisions of
this Article.
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SECTION 13.4. Subrogation to Rights of Holders of Senior and
Subordinated Debt.
Subject to the payment in full of all amounts due or to become due on
all Senior and Subordinated Debt, or the provision for such payment in cash or
cash equivalents or otherwise in a manner satisfactory to the holders of Senior
and Subordinated Debt, the Holders of the Securities shall be subrogated to the
extent of the payments or distributions made to the holders of such Senior and
Subordinated Debt pursuant to the provisions of this Article (equally and
ratably with the holders of all indebtedness of Success Bancshares that by its
express terms is subordinated to Senior and Subordinated Debt of Success
Bancshares to substantially the same extent as the Securities are subordinated
to the Senior and Subordinated Debt and is entitled to like rights of
subrogation by reason of any payments or distributions made to holders of such
Senior and Subordinated Debt) to the rights of the holders of such Senior and
Subordinated Debt to receive payments and distributions of cash, property and
securities applicable to the Senior and Subordinated Debt until the principal
of (and premium if any) and interest (including Additional Interest) on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of the Senior and Subordinated Debt of any
cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the holders of
Senior and Subordinated Debt by Holders of the Securities or the Trustee,
shall, as among Success Bancshares, its creditors other than holders of Senior
and Subordinated Debt, and the Holders of the Securities, be deemed to be a
payment or distribution by Success Bancshares to or on account of the Senior
and Subordinated Debt.
SECTION 13.5. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior and Subordinated Debt on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as between Success Bancshares
and the Holders of the Securities, the obligations of Success Bancshares, which
are absolute and unconditional, to pay to the Holders of the Securities the
principal of (and premium, if any) and interest (including any Additional
Interest) on the Securities as and when the same shall become due and payable
in accordance with their terms; or (b) affect the relative rights against
Success Bancshares of the Holders of the Securities and creditors of Success
Bancshares other than their rights in relation to the holders of Senior and
Subordinated Debt; or (c) prevent the Trustee or the Holder of any Security (or
to the extent expressly provided herein, the holder of any Preferred Security)
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, including filing and voting claims in any Proceeding,
subject to the rights, if any, under this Article of the holders of Senior and
Subordinated Debt to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
SECTION 13.6. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes
and directs the Trustee on his or her behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination
provided in this Article and appoints the Trustee his or her attorney-in-fact
for any and all such purposes.
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SECTION 13.7. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior and
Subordinated Debt 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 Success Bancshares or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by Success Bancshares with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
that any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the immediately
preceding paragraph, the holders of Senior and Subordinated Debt may, at any
time and from time to time, without the consent of or notice to the Trustee or
the Holders of the Securities, without incurring responsibility to such Holders
of the Securities and without impairing or releasing the subordination provided
in this Article or the obligations hereunder of such Holders of the Securities
to the holders of Senior and Subordinated Debt, do any one or more of the
following: (i) change the manner, place or terms of payment or extent the time
of payment of, or renew or alter, Senior and Subordinated Debt, or otherwise
amend or supplement in any manner Senior and Subordinated Debt or any
instrument evidencing the same or any agreement under which Senior and
Subordinated Debt is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior and
Subordinated Debt; (iii) release any Person liable in any manner for the
collection of Senior and Subordinated Debt; and (iv) exercise or refrain from
exercising any rights against Success Bancshares and any other Person.
SECTION 13.8. Notice to Trustee.
Success Bancshares shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to Success Bancshares that would
prohibit the making of any payment to or by the Trustee in respect of the
Securities. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment to or
by the Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof from Success Bancshares or a holder of
Senior and Subordinated Debt or from any trustee, agent or representative
therefor; provided, however, that if the Trustee shall not have received the
notice provided for in this Section at least two Business Days prior to the date
upon which by the terms hereof any monies may become payable for any purpose
(including the payment of the principal of (and premium, if any) or interest
(including any Additional Interest) on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such monies and to apply the same to the purpose for which
they were received and shall not be affected by any notice to the contrary that
may be received by it within two Business Days prior to such date.
Subject to the provisions of Section 6.1, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself or herself to be a holder of Senior and Subordinated Debt (or a trustee
or attorney-in-fact therefor) to establish that such notice has been given by a
holder of Senior and Subordinated Debt (or a trustee or attorney-in-fact
therefor). In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior and Subordinated Debt to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior and Subordinated Debt held by such Person, the extent to which such
Person is entitled
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to participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 13.9. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of Success Bancshares
referred to in this Article, the Trustee, subject to the provisions of Section
6.1, and the Holders of the Securities shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which such
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
conservator, liquidating trustee, custodian, assignee for the benefit of
creditors, agent or other Person making such payment or distribution, delivered
to the Trustee or to the Holders of Securities, for the purpose of ascertaining
the Persons entitled to participate in such payment or distribution, the
holders of the Senior and Subordinated Debt and other indebtedness of Success
Bancshares, 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 13.10. Trustee Not Fiduciary for Holders of Senior and
Subordinated Debt.
The Trustee, in its capacity as trustee under this Indenture, shall
not be deemed to owe any fiduciary duty to the holders of Senior and
Subordinated Debt and shall not be liable to any such holders if it shall in
good faith mistakenly pay over or distribute to Holders of Securities or to
Success Bancshares or to any other Person cash, property or securities to which
any holders of Senior and Subordinated Debt shall be entitled by virtue of this
Article or otherwise.
SECTION 13.11. Rights of Trustee as Holder of Senior and
Subordinated Debt; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior and Subordinated
Debt that may at any time be held by it, to the same extent as any other holder
of Senior and Subordinated Debt, and nothing in this Indenture shall deprive
the Trustee of any of its rights as such holder.
SECTION 13.12. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by Success Bancshares and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee.
SECTION 13.13. Certain Conversions or Exchanges Deemed Payment.
For purposes of this Article only, (a) the issuance and delivery of
junior securities upon conversion or exchange of Securities shall not be deemed
to constitute a payment or distribution on account of the principal of (or
premium, if any, on) or interest (including any Additional Interest) on such
Securities or on account of the purchase or other acquisition of
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such Securities, and (b) the payment, issuance or delivery of cash, property or
securities (other than junior securities) upon conversion or exchange of a
Security shall be deemed to constitute payment on account of the principal of
such security. For the purposes of this Section, the term "junior securities"
means (i) shares of any stock of any class of Success Bancshares, and (ii)
securities of Success Bancshares that are subordinated in right of payment to
all Senior and Subordinated Debt that may be outstanding at the time of
issuance or delivery of such securities to substantially the same extent as, or
to a greater extent than, the Securities are so subordinated as provided in
this Article.
* * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
[Remainder of page left intentionally blank; signatures appear on following
page.]
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IN WITNESS WHEREOF, the parties hereto have executed this Indenture as
of the date first above written.
Attest: SUCCESS BANCSHARES, INC.
------------------------------
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Attest: BANKERS TRUST COMPANY, NOT
------------------------------ INDIVIDUALLY, BUT SOLELY AS TRUSTEE
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
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