EXHIBIT 10.19
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated August 25, 1999, between LOCAL
FINANCIAL CORPORATION, a Delaware corporation, having its principal office at
0000 XX 00xx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000-0000 (the "Company"), and THE
BANK OF NEW YORK, a New York banking corporation, having its principal corporate
trust office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 000000 (the "Trustee").
Capitalized terms used herein without definition shall have the same meanings
assigned to them in the Indenture.
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee have entered into that certain
indenture dated as of September 8, 1997 (the "Indenture") pursuant to which the
Company issued an aggregate principal amount of $80,000,000 of 11.0% Senior
Notes due 2004 (the "Senior Notes");
WHEREAS, Section 10.12 of the Indenture sets forth limitations on the
Company's ability to make Restricted Payments, which includes, among other
things, requirements based on the Company's Consolidated Net Income (Loss);
WHEREAS, an ambiguity exists within the definition of Consolidated Net
Income (Loss) in the Indenture which creates inconsistent results depending on
how the provision is interpreted and which could restrict the Company's ability
to make certain payments or prohibit the Company from entering into certain
transactions which would be beneficial to the Company and the Holders of its
Senior Notes;
WHEREAS, the Company desires to restate the definition of Consolidated Net
Income (Loss) in the Indenture in order to cure the ambiguity;
WHEREAS, the Company has adopted a Board Resolution authorizing the
execution of this First Supplemental Indenture;
WHEREAS, the execution of this First Supplement Indenture will not
adversely affect in any material way the interests of the Holders of the Senior
Notes; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the Company
and the Trustee mutually covenant and agree for the equal and ratable benefit of
the Holders of the Senior Notes as follows:
1. FIRST SUPPLEMENTAL INDENTURE. This First Supplemental Indenture is
supplemental to, and is entered into in accordance with Section 9.01 of the
Indenture, and except as modified, in all respects ratified and confirmed and
shall remain in full force and effect.
2. DEFINITION OF CONSOLIDATED NET INCOME (LOSS). The definition of
Consolidated Net Income (Loss) contained in Section 1.01 of the Indenture is
hereby amended and restated in its entirety to read as follows:
"CONSOLIDATED NET INCOME (LOSS)" of any Person means, for any
period, the consolidated net income (or less) of such Person and its
consolidated Subsidiaries for such period as determined in accordance with GAAP,
adjusted, to the extent included in calculating such net income (loss), by
excluding, without duplication, (i) all extraordinary gains and losses (other
than those relating to the use of net operating losses of such Person carried
forward), less all fees and expenses relating thereto, net of taxes (for
purposes hereof, the $125.5 million of losses incurred by the Company in
connection with the transactions associated with the reorganization of the
Company in September 1997 shall be considered extraordinary), (ii) the portion
of net income (or less) of any other Person (other than any of such Person's
consolidated Subsidiaries) in which such Person or any of its Subsidiaries has
an ownership interest, except to the extent of the amount of dividends or other
distributions actually paid to such Person or its consolidated Subsidiaries in
cash by such other Person during such period, (iii) net income (or loss) of any
Person combined with such Person or any of its Subsidiaries on a "pooling of
interests" basis attributable to any period prior to the date of combination,
(iv) any gain or less, net of taxes, realized upon the termination of any
employee pension benefit plan or (v) the net income of any consolidated
Subsidiary of such Person to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that income is not at
the time permitted, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulations applicable to that Subsidiary or its shareholders;
provided that, upon the termination or expiration of such dividend or
distribution restrictions, the portion of net income (or loss) of such
consolidated Subsidiary allocable to such Person and previously excluded shall
be added to the Consolidated Net Income (Loss) of such Person to the extent of
the amount of dividends or other distributions available to be paid to such
Person in cash by such Subsidiary.
3. SUCCESSORS AND ASSIGNS. All covenants and agreements of the Company and
the Trustee in this First Supplemental Indenture shall bind their respective
successors.
4. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
5. GOVERNING LAW. This First Supplemental Indenture shall be governed by
and construed in accordance with the internal laws of the State of New York.
6. EFFECT OF HEADINGS. The section headings herein are for convenience
only and shall not affect the construction hereof.
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7. EFFECTIVE DATE. This First Supplemental Indenture shall be effective as
o the date hereof.
8. INCORPORATION INTO INDENTURE. All provisions of this First Supplemental
Indenture shall be deemed to be incorporated in, and made part of, the
Indenture; and the Indenture, as amended and supplemented by this First
Supplemental Indenture, shall be read, taken and construed as one and the same
instrument.
9. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect to the validity or sufficiency of this Supplemental
Indenture or for or in respect of the correctness of the recitals of fact
contained herein, all of which recitals are made solely by the Company.
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed and the seal of the Company to be hereunto affixed
and attested, all as of the day and year first above written.
LOCAL FINANCIAL CORPORATION
[Company Seal] By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Chairman and Chief Executive
Officer
Attest: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Corporate Secretary
THE BANK OF NEW YORK, AS TRUSTEE
By: /s/ Van X. Xxxxx
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Name: Van X. Xxxxx
Title: Assistant Vice President
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