HUBCO, INC.
AND
SUMMIT BANK
as Trustee
================
INDENTURE
Dated as of January 14, 1994
===============
$25,000,000
7.75% Subordinated Debentures
due 2004
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions..................................................1
SECTION 1.2. Incorporation by Reference of Trust Indenture Act............5
SECTION 1.3. Rules of Construction........................................6
ARTICLE 2
THE SECURITIES
SECTION 2.1. Form and Dating..............................................6
SECTION 2.2. Execution and Authentication.................................7
SECTION 2.3. Registrar and Paying Agent...................................8
SECTION 2.4. Paying Agent to Hold Money in Trust..........................8
SECTION 2.5. Securityholder Lists.........................................9
SECTION 2.6. Registration of Transfer and Exchange........................9
SECTION 2.7. Replacement Securities......................................12
SECTION 2.8. Outstanding Securities......................................12
SECTION 2.9. Treasury Securities.........................................13
SECTION 2.10. Temporary Securities........................................13
SECTION 2.11. Cancellation................................................13
SECTION 2.12. CUSIP Numbers...............................................14
SECTION 2.13. Defaulted and Additional Interest...........................14
ARTICLE 3
COVENANTS
SECTION 3.1. Payment of Securities.......................................15
SECTION 3.2. Maintenance of Office or Agency.............................15
SECTION 3.3. Maintenance and Inspection of Books and Records.............16
SECTION 3.4. Corporate Existence.........................................16
SECTION 3.5. Compliance with Laws........................................16
SECTION 3.6. No Violation or Contravention. .............................16
SECTION 3.7. Notice of Defaults..........................................17
SECTION 3.8. Compliance Certificate......................................17
SECTION 3.9. SEC Reports.................................................18
SECTION 3.10. Waiver of Stay, Extension or Usury Laws.....................18
SECTION 3.11. Payment of Taxes and Other Claims...........................18
SECTION 3.12. Maintenance of Properties and Insurance.....................18
SECTION 3.13. Liquidation.................................................19
SECTION 3.14. Information.................................................19
ARTICLE 4
MERGER, ETC.
SECTION 4.1. When Company May Merge, etc.................................19
SECTION 4.2. Successor Corporation Substituted...........................20
ARTICLE 5
DEFAULTS AND REMEDIES
SECTION 5.1. Events of Default...........................................20
SECTION 5.2. Acceleration................................................23
SECTION 5.3. Other Remedies..............................................23
SECTION 5.4. Waiver of Past Defaults.....................................23
SECTION 5.5. Control by Majority.........................................23
SECTION 5.6. Limitation on Suits.........................................24
SECTION 5.7. Rights of Holders to Receive Payment........................24
SECTION 5.8. Collection Suit by Trustee..................................24
SECTION 5.9. Trustee May File Proofs of Claim............................25
SECTION 5.10. Priorities..................................................25
SECTION 5.11. Undertaking for Costs.......................................26
ARTICLE 6
TRUSTEE
SECTION 6.1. Duties of Trustee...........................................26
SECTION 6.2. Rights of Trustee...........................................27
SECTION 6.3. Individual Rights of Trustee................................28
SECTION 6.4. Trustee's Disclaimer........................................28
SECTION 6.5. Notice of Defaults..........................................28
SECTION 6.6. Reports by Trustee to Holders...............................28
SECTION 6.7. Compensation and Indemnity..................................29
SECTION 6.8. Replacement of Trustee......................................29
SECTION 6.9. Successor Trustee or Agent by Merger, etc...................30
SECTION 6.10. Eligibility; Disqualification...............................30
SECTION 6.11. Preferential Collection of Claims Against the Company.......31
ARTICLE 7
DISCHARGE OF INDENTURE
SECTION 7.1. Termination of Company's Obligations........................31
SECTION 7.2. Application of Trust Money..................................32
SECTION 7.3. Repayment to Company........................................32
SECTION 7.4. Reinstatement...............................................33
ARTICLE 8
AMENDMENTS
SECTION 8.1. Without Consent of Holders..................................33
SECTION 8.2. With Consent of Holders.....................................34
SECTION 8.3. Compliance with Trust Indenture Act.........................35
SECTION 8.4. Revocation and Effect of Consents...........................35
SECTION 8.5. Notation on or Exchange of Securities.......................35
SECTION 8.6. Trustee to Sign Amendments, etc.............................35
ARTICLE 9
SUBORDINATION
SECTION 9.1. Securities Subordinated to Senior Indebtedness..............36
SECTION 9.2. Priority and Payment Over of Proceeds in Certain Events.....36
SECTION 9.3. Payments May Be Paid Prior to Dissolution...................37
SECTION 9.4. Rights of Holders of Senior Indebtedness Not to be
Impaired...................................................37
SECTION 9.5. Authorization to Trustee to Take Action to Effectuate
Subordination..............................................38
SECTION 9.6. Subrogation.................................................38
SECTION 9.7. Obligations of Company Unconditional........................38
SECTION 9.8. Article 10 Not a Bar to Events of Default...................39
SECTION 9.9. Trustee Entitled to Assume Payment Not Prohibited in
Absence of Notice..........................................39
SECTION 9.10. Right of Trustee to Hold Senior Indebtedness................39
SECTION 9.11. Trustee not Fiduciary for Holders of Senior Indebtedness....39
ARTICLE 10
MISCELLANEOUS
SECTION 10.1. Trust Indenture Act Controls................................39
SECTION 10.2. Notices.....................................................40
SECTION 10.3. Communication by Holders with Other Holders.................40
SECTION 10.4. Certificate and Opinion as to Conditions Precedent..........41
SECTION 10.5. Statements Required in Certificate or Opinion...............41
SECTION 10.6. Rules by Trustee and Agents.................................41
SECTION 10.7. Legal Holidays..............................................41
SECTION 10.8. Duplicate Originals.........................................42
SECTION 10.9. Governing Law...............................................42
SECTION 10.10. No Adverse Interpretation of Other Agreements...............42
SECTION 10.11. Successors..................................................42
SECTION 10.12. Severability................................................42
SECTION 10.13. No Recourse Against Others..................................42
SECTION 10.14. Table of Contents, Headings, etc............................42
SECTION 10.15. Counterpart Originals.......................................42
INDENTURE dated as of January 14, 1994 between HUBCO, INC. a New Jersey
corporation (the "Company"), and Summit Bank, a New Jersey banking corporation,
as trustee ("Trustee").
WHEREAS, the Company has duly authorized the issue of its unsecured
debentures to be issued (the "Securities") up to such principal amount or
amounts as may from time to time be authorized in accordance with the terms of
this Indenture and to provide, among other things, for the authentication,
delivery and administration thereof, the Company has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the holders thereof, the Company and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective holders from time to time
of the Securities as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
"Accountants' Certificate" means a certificate from Xxxxxx Xxxxxxxx &
Co. or other independent certified public accountants of national standing.
"Affiliate" means, when used with reference to the Company or another
Person, any Person directly or indirectly controlling, controlled by, or under
direct or indirect common control with, the Company or such other Person, as the
case may be. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct or cause the direction
of management or policies of such Person, directly or indirect}y, whether
through the ownership of Voting Stock, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative of the foregoing.
"Agent" means any Registrar, Paying Agent, co-registrar, authenticating
agent, Securities Custodian or agent for service of notices and demands.
"Board of Directors" means the Board of Directors of any Person or any
duly authorized committee of such Board of Directors.
"Business Day" means any day excluding Saturday, Sunday and any day
which is a Legal Holiday.
"Capitalized Lease Obligation" means any lease obligation of a Person
incurred with respect to any property (whether real, personal or mixed) acquired
or leased by such Person and used in its business that is required to be
recorded as a capitalized lease in accordance with generally accepted accounting
principles.
"Capital Stock" means any and all shares, interests, participation
rights or other equivalents (however designated) of corporate stock.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Stock" means the class of stock, which, at the date of this
Indenture, is designated as the Common Stock, without par value, of the Company
and stock of any class or classes into which such Common Stock may thereafter be
changed or reclassified.
"Company" means the party named as such in the first paragraph of this
Indenture and, subject to Article 4, its successors.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time be
administered which office is, at the date as of which the Indenture is dated,
the address of the Trustee specified in Section 10.2, or such other address as
the Trustee may give by notice to the Company.
"Default" means any event or condition which is, or after notice or
lapse of time or both would be, an Event of Default.
"Depository" means the depository for the Global Security issued
hereunder, which shall initially be The Depository Trust Company, and its
successor or successors or nominees or any corporation or financial or banking
institution which the Company may appoint as a successor Depository pursuant to
the terms of Section 2.6.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"Event of Default" shall have the meaning provided in Section 6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
and in effect from time to time.
"Global Security" means the single certificate evidencing in global
form the Security or Securities issuable or issued in whole or in part in global
form which is substantially in the form of Exhibit A-2 and delivered to the
Depository or Securities Custodian.
"Guarantee" means, as applied to any obligation, (i) a guarantee (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business), direct or indirect, in any manner, of any part or all of
such obligation or (ii) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of any part
or all of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit. The amount of a Guarantee
shall be deemed to be the maximum amount of the obligation guaranteed for which
the guarantor could be held liable under such Guarantee. "Guaranteed" when used
as a verb herein has a corresponding meaning.
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the Registrar's books.
"Xxxxxx United Bank" means Xxxxxx United Bank, a New Jersey State
chartered commercial bank, and a wholly-owned Subsidiary of the Company.
"Indebtedness" means, with respect to any Person, (a) all obligations
of such Person for borrowed money (whether or not the recourse of the lender is
to the whole of the assets of such Person or only to a portion thereof), (b) all
indebtedness of such Person which is evidenced by a note, debenture, bond or
other similar instrument, (including, without limitation, Capitalized Lease
Obligations) or representing the deferred and unpaid balance of the purchase
price of any property or services, (c) all indebtedness of such Person,
(including, without limitation, Capitalized Lease Obligations) incurred, assumed
or given in an acquisition (whether by way of purchase, merger or otherwise) of
any business, real property or other assets, (d) all obligations of such Person
to purchase securities or other property which arise out of or in connection
with the sale of the same or substantially similar securities or property
("Repurchase Agreements"), (e) any indebtedness of others described in the
preceding clauses (a), (b), (c) and (d) that such Person has Guaranteed or
secured by a lien on any asset of such Person or for which it is otherwise
liable and (f) any amendment, renewal, extension, deferral, modification,
restructuring or refunding of any such indebtedness, obligation or Guarantee.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Interest Payment Date" means the interest payment dates specified in
paragraph 1 of the forms of Security annexed hereto as Exhibits A-1 and A-2.
"Legal Holiday" means any day on which commercial banking institutions
in New York or New Jersey are authorized by law or regulation to close.
"Lien" means any lien, security interest, charge or encumbrance of any
kind (including any conditional sale or other title retention agreement, any
lease in the nature thereof, and any agreement to give any security interest.
"Major Bank Subsidiary" means a Subsidiary of the Company that is a
bank, as defined in 12 U.S.C. ss. 1813 or any successor law, the assets of which
as reported on Schedule RC of its most recent Consolidated Report of Condition
and Income that had been filed prior to the date of this Indenture equal or
exceed 80% of the assets reported on the most recent Quarterly Report on Form
10-Q that had been filed prior to the date of this Indenture for the
consolidated Company.
"New Securities" has the meaning set forth in Section 2.2.
"Obligations" means, with respect to any Indebtedness, any principal,
premium, interest, penalties, fees and other liabilities payable from time to
time and any covenants or conditions to be performed or observed under the
documentation governing such Indebtedness.
"Officer" of any Person means the Chairman of the Board of Directors,
the President, any Senior Vice-President, any Vice-President, the Treasurer, the
Secretary or the Controller of such Person.
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and an Assistant Treasurer, Assistant Secretary or Assistant
Controller of any Person conforming to the requirements set forth in Sections
10.4 and 10.5 and complying with Section 314 of the TIA.
"Opinion of Counsel" means a written opinion signed by legal counsel
who may be an employee of or counsel to the Company and who is reasonably
acceptable to the Trustee. Each such opinion shall comply with Section 314 of
the TIA and include the statements set forth in Sections 10.4 and 10.5, if and
to the extent required hereby. For the purpose of rendering an opinion, such
counsel may rely as to factual matters upon certificates or other documents
furnished by Officers and directors of the Company and upon such other documents
as such counsel deems appropriate as a basis of their opinion, copies of which
shall be delivered with such opinion.
"Paying Agent" shall have the meaning set forth in Section 2.3.
"Person" means any individual, corporation, partnership, association,
joint venture, trust, entity, unincorporated organization or government or any
agency or political subdivision thereof.
"Qualified Holder" means at any time, (i) any Initial Purchaser and
(ii) a Person, which individually, or collectively with its affiliates or other
entities for which the same investment advisor, investment manager, trustee or
custodian is acting in connection with the Securities, holds one or more
Securities (or beneficial interests therein) representing at least 10% of the
aggregate outstanding principal amount of the Securities then outstanding (a
"Qualified Group") and has been designated by a Qualified Group to act as the
Qualified Holder. A Qualified Holder shall be entitled to be recognized as such
upon the filing of a certificate (which may be in the form of an ombudsman
certificate) with the Company and the Trustee, identifying the Qualified Holder
and, if applicable, the members of the Qualified Group.
"Record Date" means, with respect to any Interest Payment Date, the
Business Day fifteen days prior to an Interest Payment Date.
"Registrar" shall have the meaning set forth in Section 2.3.
"Registration Rights Agreement" shall have the meaning set forth in
Section 2.2.
"Repurchase Agreement" shall have the meaning set forth in the
definition of "Indebtedness."
"Restricted Securities" mean "restricted securities" within the meaning
of Rule 144(a)(3) under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities" means the 7.75% Subordinated Debentures due 2004 of the
Company issued pursuant to this Indenture and, from and after the consummation
of the Registered Exchange Offer, any New Securities issued in exchange therefor
pursuant to Section 2.2.
"Securities Act" means the Securities Act of 1933, as amended and in
effect from time to time.
"Securities Custodian" means Chemical Bank the custodian for the
Depository under an existing contractual relationship between the Depository and
the Securities Custodian which will hold the Global Security which is issued
hereunder, and any successor entity thereto.
"Senior Indebtedness" means any and all Indebtedness of the Company,
whether outstanding on the date of this Indenture as originally executed or
thereafter created or incurred, except any particular Indebtedness, for which
the instrument creating or evidencing the same or pursuant to which the same is
outstanding expressly provides that such Indebtedness shall be subordinate or
shall rank pari passu in right of payment to the Securities.
"Significant Subsidiary or Subsidiaries" means as of any date any
Subsidiary which singly, or one or more Subsidiaries which in the aggregate,
would be a "significant subsidiary" on such date as defined in Rule 1-02 of
Regulation S-X under the Securities Act and the Exchange Act.
"Subsidiary" means, with respect to the Company, any corporation, bank,
association, partnership or other business entity of which more than 50% of the
Voting Stock or other ownership interests entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, officers or
trustees thereof or other persons performing similar functions is at the time
owned in the aggregate, directly or indirectly, by the Company and its
Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
ss.77aaa-77bbbb), as amended and in effect at the date as of which this
Indenture was originally executed or, if this Indenture is qualified under the
TIA, from and after the date of such qualification, the TIA as in effect at the
date of such qualification, except in either case as provided in Section 8.3.
"Trustee" means the party named as such above until a successor
replaces it pursuant to this Indenture and thereafter means such successor.
"Trust Officer", when used with respect to the Trustee, means any
officer assigned by the Trustee to administer the corporate trust business of
the Trustee, including without limitation any vice president, any assistant vice
president, any assistant secretary or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers, who shall, in any case, be responsible for the
administration of this document, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"U.S. Government Obligations" means direct or indirect obligations of
the United States of America or an agency of the United States of America for
the payment of which the full faith and credit of the United States of America
is pledged.
"Voting Stock" means Capital Stock which ordinarily has voting power
for the election of directors, whether at all times or only so long as no senior
class of Capital Stock has such voting power by reason of any contingency.
SECTION 1.2. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture, whether or
not this Indenture is qualified under the TIA.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a
Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Securities means the Company.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
and not otherwise defined herein have the meanings so assigned to them therein.
SECTION 1.3. Rules of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined shall be interpreted
in accordance with generally accepted accounting principles;
(iii) references to "generally accepted accounting principles" shall
mean generally accepted accounting principles in effect in the
United States as at the time of any computation;
(iv) "or" is not exclusive;
(v) words in the singular include the plural, and in the plural
include the singular;
(vi) provisions apply to successive events and transactions; and
(vii) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
ARTICLE 2
THE SECURITIES
SECTION 2.1. Form and Dating.
The definitive Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A-1, which is part
of this Indenture. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage, which shall be provided in
writing by the Company to the Trustee. Each Security shall be dated the date of
its authentication.
The terms and provisions contained in the Securities shall constitute,
and are hereby expressly made, a part of this Indenture. To the extent
applicable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
The Securities will initially be issued in global form, substantially
in the form of Exhibit A-2. Such Global Security shall represent such of the
outstanding Securities as shall be specified therein and shall provide that it
shall represent the aggregate amount of outstanding Securities from time to time
endorsed thereon and that the aggregate amount of outstanding Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount of any increase
or decrease in the amount of outstanding Securities represented thereby shall be
made by the Trustee or the Securities Custodian, at the direction of the
Trustee, in such manner and upon instructions given by the holder thereof.
Payment of principal of and any interest on any Security in global form
shall be made to the holder thereof.
SECTION 2.2. Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Securities
and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until executed on behalf of the Company
and authenticated by the manual signature of the Trustee, if upon original
issuance, or manual signature of the Trustee or an authenticating agent
appointed pursuant to this Section 2.2 if other than upon original issuance. The
signature of the Trustee or of an authenticating agent shall be conclusive
evidence that the Security has been authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue in the
aggregate principal amount of not more than $25,000,000 pursuant to a written
order of the Company signed by two Officers directing the Trustee to
authenticate the Securities. The order shall specify the amount of Securities to
be authenticated, the rate of interest to be paid and the date upon which the
original issue of Securities is to be authenticated. The aggregate principal
amount of Securities outstanding at any time may not exceed $25,000,000, except
as provided in Section 2.8.
On or immediately after the consummation of a registered exchange offer
("Registered Exchange Offer") pursuant to the Registration Rights Agreement by
and among the Company and each of the purchasers identified on Schedule I
thereto (the "Initial Purchasers") dated as of January 14, 1994 (as amended and
in effect from time to time, the "Registration Rights Agreement"), the Trustee
shall authenticate new securities ("New Securities") for original issue in the
aggregate principal amount of not more than $25,000,000, less the principal
amount of any Securities which are not surrendered in the Registered Exchange
Offer, pursuant to a written order of the Company signed by two Officers
directing the Trustee to authenticate the New Securities. The New Securities
shall be identical in all material respects to the Securities except that the
New Securities will be registered under the Securities Act, shall not bear the
transfer restrictions set forth on the face of the form of Securities and shall
not contain the interest rate step-up provision set forth in paragraph 18 of the
Securities. The order to the Trustee shall specify the amount of New Securities
to be authenticated, the rate of interest to be paid and the date upon which the
original issue of New Securities pursuant to the Registered Exchange Offer is to
be authenticated and shall further provide instructions concerning registration,
amounts for each Holder and delivery. The aggregate principal amount of New
Securities outstanding at any time may not exceed $25,000,000, less the
aggregate principal amount of Securities outstanding, if any, except as provided
in Section 2.8.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. An authenticating agent may authenticate Securities on behalf
of the Trustee, except upon original issuance and pursuant to Section 2.7. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company, a Subsidiary or an Affiliate of the Company.
The Securities shall be issuable without coupons and only in
denominations of $100,000 and integral multiples thereof.
SECTION 2.3. Registrar and Paying Agent.
The Company shall maintain an office or agency in the State of New
Jersey or the City of New York, New York where Securities may be presented for
registration of transfer or for exchange ("Registrar"), an office or agency
where Securities may be presented for payment ("Paying Agent") and an office or
agency where notices or demands to or upon the Company in respect of the
Securities and the Indenture may be served. The Registrar shall keep a register
of the Securities and of their transfer and exchange. The Company may appoint
one or more co-registrars and one or more additional paying agents. The term
"Registrar" includes any co-registrars appointed by the Company. The term
"Paying Agent" includes any additional Paying Agent. If any of the Securities
are Restricted Securities and any of the Securities are Global Securities, the
Company shall appoint a Registrar or a co-registrar that shall be a member of or
otherwise participate in the Depository's program for registering transfers of
Restricted Securities. Such Registrar or co-registrar shall also be eligible to
serve as a Securities Custodian. So long as any Securities are Restricted
Securities and any Securities are in global form, Security holders shall effect
the exchange, transfer and registration of Securities through the Registrar or
co-registrar meeting the requirements of the preceding two sentences. The
Company may change any Paying Agent, Registrar or co-registrar and shall provide
notice of any such change to any Securityholder.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. Such agreement shall implement and comply
with the provisions of this Indenture that relate to such Agent. The Company
shall give prompt written notice to the Trustee of the name and address of any
Agent who is not a party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as
such. The Company, any Subsidiary or any of their Affiliates may act as Paying
Agent, Registrar or co-registrar.
The Company initially appoints the Depository Trust Company to act as
depository with respect to the Global Security, and appoints the Trustee as
Registrar and Paying Agent and agent for service of notices and demands. The
Company initially appoints Chemical Bank as co-registrar and Securities
Custodian.
SECTION 2.4. Paying Agent to Hold Money in Trust.
On or prior to the due date of principal of, premium, if any, and
interest on any Securities, the Company shall deposit with the Paying Agent
money sufficient to pay such principal, premium, if any, and interest so
becoming due. The Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee on behalf of the Securityholders all money held
by the Paying Agent for the payment of principal of, premium, if any, and
interest on the Securities (whether such money has been paid to it by the
Company or any other obligor on the Securities) and shall notify the Trustee in
writing of any failure by the Company (or any other obligor on the Securities)
in making any such payment. While any such failure continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee and to account
for any funds disbursed. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company) shall have no further liability for the
money so paid over to the Trustee. If the Company acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of the
Securityholders all money held by it as Paying Agent.
SECTION 2.5. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If (i) the Trustee is not the Registrar, the Company shall, or
(ii) if there is a co-registrar, the co-registrar shall, furnish to the Trustee
fifteen days prior to each Interest Payment Date for the Securities and at such
other times as the Trustee may request in writing, a list in such form and as of
such date as the Trustee may reasonably require, containing all of the
information in the possession or control of the Registrar, the Company or any of
its Paying Agents other than the Trustee, as to the names and addresses of
Securityholders, and the Company shall otherwise comply with TIA ss. 312(a).
SECTION 2.6. Registration of Transfer and Exchange.
(a) The transfer and exchange of Securities in global form shall be
effected through the Depository, in accordance with this Indenture (including
the restrictions on transfer set forth herein) and the procedures of the
Depository therefor.
When definitive Securities are presented to the Registrar or a
co-registrar with a request to register their transfer or to exchange such
definitive securities for an equal aggregate principal amount of definitive
Securities of other authorized denominations, the Registrar or co-Registrar
shall register the transfer or make the exchange if the requirements for such
transaction are met; provided that a definitive Security presented or
surrendered for registration of transfer or exchange for another Security (i)
shall be duly endorsed or accompanied by a written instrument of transfer in
form satisfactory to the Registrar or such co-registrar duly executed by the
Holder thereof or his attorney duly authorized in writing and (ii) shall be
accompanied by a duly completed certificate of the transferor in substantially
the form of Exhibit B hereto and, to the extent specified therein, an opinion of
counsel to the effect set forth therein; and, provided further, that, in the
case of a transfer pursuant to an exemption from registration in accordance with
Rule 144, Rule 145 or Regulation S under the Securities Act, or in reliance on
another exemption from the registration requirements of the Securities Act
(other than an exemption under Rule 144A under the Securities Act), such
transfer shall be effected by the delivery of definitive Securities registered
in the name of the transferee (or its nominee) in the books maintained by the
Registrar of the Securities.
The registration of any definitive Security upon transfer or exchange
shall be effective only after the surrender of the definitive Security and the
issuance by the Company and authentication by the Trustee or the authenticating
agent of a replacement Security. To permit registrations of transfer and
exchanges, the Company shall issue and the Trustee or the authenticating agent
shall authenticate Securities at the Registrar's request. The Company will not
make any service charge for any registration of transfer or exchange but may
require payment by the party requesting such registration of transfer or
exchange of a sum sufficient to cover any tax or other governmental charge in
connection therewith.
All definitive Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
(b) Except as permitted by the following paragraph or until such time
as the same is no longer required under the applicable requirements of the
Securities Act or applicable state securities laws, each certificate evidencing
the Securities in global form and the definitive Securities (and all securities
issued in exchange therefor or substitution thereof) shall bear a legend in
substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY OTHER APPLICABLE
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES
FOR THE BENEFIT OF HUBCO, INC. (THE "COMPANY") THAT THIS SECURITY MAY
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) TO THE COMPANY,
(2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT, TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) PURSUANT TO
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT IN A
TRANSACTION COMPLYING WITH REGULATION S UNDER THE SECURITIES ACT, (4)
PURSUANT TO AN EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144
(IF AVAILABLE) OR RULE 145 UNDER THE SECURITIES ACT, (5) IN RELIANCE ON
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, AND SUBJECT IN THE CASE OF EACH OF CLAUSES (2), (3),
(4), (5) AND (6) ABOVE TO THE RECEIPT BY THE REGISTRAR OR CO-REGISTRAR
OF A CERTIFICATION OF THE TRANSFEROR TO SUCH EFFECT AND IN THE CASE OF
EACH OF CLAUSES (3), (4) AND (5) ABOVE TO THE DELIVERY TO THE
TRANSFEREE OF DEFINITIVE SECURITIES REGISTERED IN ITS NAME (OR ITS
NOMINEE'S NAME) ON THE BOOKS MAINTAINED BY THE REGISTRAR, AND IN THE
CASE OF CLAUSE (5) ABOVE TO RECEIPT OF AN OPINION (IN SUBSTANTIALLY THE
FORM OF EXHIBIT C TO THE INDENTURE REFERRED TO BELOW OR OTHERWISE
SATISFACTORY TO THE COMPANY AND THE REGISTRAR) OF COUNSEL EXPERIENCED
IN SECURITIES MATTERS (WHICH COUNSEL MAY BE AN EMPLOYEE OF THE
TRANSFEROR) TO THE EFFECT THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, AND IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS IN ANY APPLICABLE STATE OF THE UNITED STATES."
The transfer and exchange of Securities may be made in global form only
if such Security is being transferred to a qualified institutional buyer (as
defined in Rule 144A under the Securities Act) in accordance with Rule 144A
under the Securities Act.
(c) Any Securities which are presented to the Registrar for exchange
pursuant to a Registered Exchange Offer shall be exchanged for New Securities of
equal aggregate principal amount upon surrender to the Registrar of the
Securities to be exchanged; provided, however, that the Securities so
surrendered for exchange shall be duly endorsed and accompanied by a transmittal
letter or written instrument of transfer in form satisfactory to the Company,
the Trustee and the Registrar duly executed by the Holder thereof or his
attorney who shall be duly authorized in writing to execute such document.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver to the Registrar the
same aggregate principal amount of New Securities as Securities that have been
surrendered.
(d) Notwithstanding any other provisions of this Indenture (other than
the provisions set forth in part (e) of this Section 2.6), a Security in global
form may not be transferred as a whole except by the Depository to a nominee of
the Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(e) If at any time the Depository for the Securities notifies the
Company that it is unwilling or unable to continue as Depository for the
Securities, the Company may appoint a successor Depository with respect to the
Securities. If a successor Depository for the Securities is not appointed by the
Company within 90 days after the Company receives such notice, the Company will
execute, and the Trustee, upon receipt of an officers' certificate for the
authentication and delivery of definitive Securities, will authenticate and
deliver, Securities in definitive form, in an aggregate principal amount equal
to the aggregate principal amount of the Securities in global form, in exchange
for such Securities in global form.
The Company may at any time and in its sole discretion determine that
the Securities issued in the form of global Securities shall no longer be
represented by such global Securities. In such event the Company will execute,
and the Trustee, upon receipt of an Officers' Certificate for the authentication
and delivery of definitive Securities, will authenticate and deliver, Securities
in definitive form, in an aggregate principal amount equal to the aggregate
principal amount of the Securities in global form, in exchange for such
Securities in global form.
If a definitive Security is issued in exchange for any portion of the
Global Security after the close of business at the office or agency where such
exchange occurs on any Record Date and before the opening of business at such
office or agency on the next succeeding Interest Payment Date, interest will not
be payable on such Interest Payment Date in respect of such definitive Security,
but will be payable on such Interest Payment Date only to the Person to whom
interest in respect of such portion of such Global Security is payable in
accordance with the provisions of this Indenture.
Definitive Securities issued in exchange for an interest in a Global
Security pursuant to this Section 2.6 shall be registered in such names and in
such authorized denominations as the Depository, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the Registrar.
The Registrar shall deliver such definitive Securities to the Persons in whose
names such Securities are so registered.
(f) Any Person having a beneficial interest in the Global Security upon
request and upon satisfaction of the requirements set forth below, may exchange
or transfer in whole or in part as provided herein its interest in the Global
Security for one or more definitive Securities. Upon receipt by the Registrar of
(i) written or electronic instructions from the Depository or its nominee on
behalf of any Person having a beneficial interest in the Global Security and
(ii) a written order of such Person containing registration instructions
accompanied by a certificate of such Person in substantially the form of Exhibit
B hereto and, to the extent specified therein, an opinion of counsel to the
effect set forth therein, the Registrar or the Securities Custodian, at the
direction of the Registrar, will cause, in accordance with the standing
instructions and procedures existing between the Depository and the Securities
Custodian, the aggregate principal amount of the Securities in global form to be
reduced and, following such reduction, the Company will execute and, upon
receipt of an authentication order in the form of an Officers' Certificate, the
Trustee will authenticate and deliver to such Person or the transferee, as the
case may be, a definitive Security.
Any holder of a definitive Security may, upon satisfaction of the
requirements set forth below, as provided herein, exchange or transfer in whole
or in part such definitive Security for an interest in the Global Security. Upon
receipt by the Registrar of a definitive Security, duly endorsed or accompanied
by appropriate instruments of transfer, in form satisfactory to the Registrar
together with (a) certification, substantially in the form of Exhibit B hereto,
that such definitive Security is being registered or transferred to a qualified
institutional buyer (as defined in Rule 144A under the Securities Act) in
accordance with Rule 144A under the Securities Act, and (b) written instructions
directing the Registrar to make, or to direct the Securities Custodian to make,
an endorsement on the Security in global form to reflect an increase in the
aggregate principal amount of the Securities represented by the Security in
global form, the Registrar shall cancel such definitive Security and cause, or
direct the Securities Custodian to cause, in accordance with the standing
instructions and procedures existing between the Depository and the Securities
Custodian, the aggregate principal amount of Securities represented by the
Security in global form to be increased accordingly.
(g) At such time as all interests in the Global Security have either
been exchanged for definitive Securities, converted, repurchased or canceled,
such Global Security shall be canceled by the Registrar. At any time prior to
such cancellation, if any interest in the Global Security is exchanged for
definitive Securities, redeemed, converted, repurchased or canceled, the
principal amount of Securities represented by such Security in global form shall
be reduced and an endorsement shall be made on such Security in global form, by
the Registrar or the Securities Custodian, at the direction of the Registrar, to
reflect such reduction.
SECTION 2.7. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee, at the Company's request, shall
authenticate and deliver, a replacement Security if the requirements of the
Trustee and the Company are met, provided that the Trustee shall not be required
to authenticate or replace any such Security which has been called for
redemption in accordance with the terms thereof. If required by the Trustee or
the Company, an indemnity bond must be sufficient in the judgment of each of the
foregoing to protect the Company, the Trustee, any Agent or any authenticating
agent from any loss which any of them may suffer if a Security is replaced. The
Company may charge the Securityholder who has lost a Security for its expenses
in replacing a Security.
Every replacement Security is an obligation of the Company and shall be
entitled to the benefits of this Indenture.
SECTION 2.8. Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation and those reductions in the interests in the Global Security
effected by the Trustee hereunder and those described in this Section as not
outstanding.
If a Security is replaced pursuant to Section 2.7, it ceases to be
outstanding and interest ceases to accrue unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a bona fide purchaser.
If all principal of, premium, if any, and any interest on any of the
Securities are considered paid under Section 3.1, such Securities shall cease to
be outstanding and interest on them shall cease to accrue.
Subject to Section 2.9, a security does not cease to be outstanding
because the Company, a Subsidiary or an Affiliate holds such Security.
SECTION 2.9. Treasury Securities.
In determining whether the Holders of the required aggregate principal
amount of Securities have concurred in any direction, waiver, amendment or
consent, Securities owned by the Company, a Subsidiary or an Affiliate of the
Company shall be considered as though they are not outstanding, except that for
the purposes of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Securities which the Trustee knows
are so owned shall be so disregarded. Securities owned by the Company, a
Subsidiary or an Affiliate of the Company which have been pledged in good faith
may be regarded as outstanding if the Trustee receives an Officer's Certificate
stating that said Securities have been so pledged, that the pledgee is entitled
to vote with respect to such Securities and that the pledgee is not the Company
or any other obligor on the Securities, a Subsidiary or an Affiliate of the
Company, a Subsidiary or such other obligor.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and execute and the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of definitive Securities
but may have variations that the Company (with the concurrence of the Trustee)
considers appropriate for temporary Securities. Each temporary Security shall be
executed by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Securities. Without unreasonable delay, the Company shall prepare and
the Trustee upon receipt of a written order of the Company signed by two
officers, shall authenticate definitive Securities in exchange for temporary
Securities. Until such exchange, temporary Securities shall be entitled to the
same rights, benefits and privileges as definitive Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for redemption, registration of transfer,
exchange or payment. The Trustee shall cancel all Securities surrendered for
redemption, registration of transfer, exchange, payment, replacement or
cancellation and shall destroy canceled Securities. The Company may not issue
new Securities to replace Securities that it has paid or that have been
delivered to the Trustee for cancellation, except as expressly permitted by any
of the provisions of this Indenture. All canceled Securities held by the Trustee
shall be destroyed and certification of their destruction delivered to the
Company.
SECTION 2.12. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and the Trustee shall use CUSIP numbers (if such have been
obtained) in notices of exchange as a convenience to Holders; provided that any
such notice shall 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 exchange and that reliance may be placed only on the other identification
numbers printed on the Securities.
SECTION 2.13. Defaulted and Additional Interest.
(a) If the Company fails to make a payment of interest on the
Securities, it shall pay such interest plus, to the extent lawful, interest on
the defaulted interest at the same rate of interest specified in the Securities,
to the Persons who are Securityholders on a subsequent special record date. The
Company shall fix the special record date and payment date in a manner
reasonably satisfactory to the Trustee. The payment date shall be no less than
15 days after such record date. At least 15 days before the special record date,
the Company shall mail to Securityholders a notice that states the special
record date, payment date and amount of such interest to be paid.
(b) As provided in the Registration Rights Agreement, the Company is
obligated on or prior to a date (the "Additional Interest Date") that is 180
days after the date of issuance of the Securities (the "Closing Date") (i) to
file and cause to become effective with the SEC a registration statement on an
appropriate form (the "Exchange Registration Statement") with respect to a
proposed offer (the "Registered Exchange Offer") to the holders of the
Securities, and (ii) to commence the Registered Exchange Offer and cause the
same to remain open for a period of not less than the period required under
applicable Federal and state law, to provide the Securityholders the opportunity
to exchange any and all of the Securities for a like aggregate principal amount
of debt securities of the Company that are substantially identical to the
Securities. If the Exchange Registration Statement shall not have been filed and
become effective and the Registered Exchange Offer commenced on or before the
Additional Interest Date, then on that date and thereafter interest on the
Securities shall be increased by one percent (1.00%) per annum. Such additional
interest shall cease to accrue on the date on which the Exchange Registration
Statement is filed and declared effective and a Registered Exchange Offer
commenced or, in certain circumstances, a shelf registration statement is filed
and has been declared effective pursuant to the Registration Rights Agreement.
This description of the Registration Rights Agreement is only a summary and is
qualified in its entirety by reference to the detailed provisions in the
Registration Rights Agreement.
(c) The Trustee, pursuant to Section 6.2(b), shall be under no
obligation to pay the additional interest provided for in paragraph (b) of this
Section 2.13 unless it shall have received an Officers' Certificate directing
the Trustee to pay such additional interest in accordance with the terms of
Section 2.13(b). The Trustee shall be entitled to rely on such Officers'
Certificate until it shall have received an Officers' Certificate to the effect
that the Company is no longer required to pay such additional interest pursuant
to the Registration Rights Agreement.
ARTICLE 3
COVENANTS
SECTION 3.1. Payment of Securities.
The Company shall pay the principal of, premium, if any, and interest
on the Securities on the dates and in the manner provided in the Securities and
in this Indenture. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR
IN ANY OTHER DOCUMENT RELATING TO THE SECURITIES, THE SECURITIES WILL BEAR
INTEREST FROM JANUARY 14, 1994, PAYABLE SEMIANNUALLY ON JANUARY 15 AND JULY 15
OF EACH YEAR COMMENCING JULY 15, 1994. The Securities mature on January 15,
2004. An installment of principal, premium, if any, or interest shall be
considered paid on the date it is due if the Trustee or Paying Agent (other than
the Company, a Subsidiary or an Affiliate) holds on that date money designated
for and sufficient to pay such installment if payment thereof is not then
prohibited by Article 9.
The Company shall pay interest (including interest that accrues after
or would accrue but for the commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency or reorganization of the Company to the
extent that such interest is an allowed claim enforceable against the debtor in
a bankruptcy case under Title 11 of the U.S. Code) on overdue principal at the
rate then borne by the Securities; it shall pay interest (including interest
that accrues after or would accrue but for the commencement of any case,
proceeding or other action relating to the bankruptcy, insolvency or
reorganization of the Company to the extent that such interest is an allowed
claim enforceable against the debtor in a bankruptcy case under Title 11 of the
U.S. Code) on overdue premium, if any, and installments of interest at the same
rate to the extent legally permitted.
SECTION 3.2. Maintenance and Office or Agency.
The Company shall designate in the State of New Jersey, or in the city
of New York, New York, an office or agency (which may be an office of the
Trustee, Registrar or co-registrar) where at all times the Securities may be
surrendered for registration of transfer or exchange and where at all times the
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served and where the Securities may be presented for payment.
The Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the Company
shall fail so to designate any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee set
forth in Section 10.2.
The Company may also designate from time to time one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided that no such designation or rescission shall in any manner relieve the
Company of its obligation so to designate as aforesaid an office or agency in
the State of New Jersey, or in the city of New York, New York, for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
The Company hereby designates the Trustee's Corporate Trust Office in
Summit, New Jersey, as one such office or agency of the Company in accordance
with Section 2.3.
SECTION 3.3. Maintenance and Inspection of Books and Records.
The Company will keep, and will cause each Subsidiary to keep, proper
books of record and account in which full, true and correct entries shall be
made of all dealings and transactions in relation to its business and
activities; and will permit and will cause each Subsidiary to permit, each
Qualified Holder (or its representative) at such Qualified Holder's expense to
visit and inspect any of their respective properties, to examine and make
abstracts from their respective books of account and other records, and to
discuss their respective affairs, finances and accounts with their respective
officers and independent public accountants, all for such reasonable purposes
and at such reasonable times as such Person shall request in writing to the
Company and as often as any such Person may reasonably request. The right of
inspection under this Section 3.3 shall not include the right to materials, or
information or data: (i) which the Company may not, in the opinion of counsel
for the Company, disclose pursuant to confidentiality restrictions under
applicable law, regulation or contract; or (ii) with respect to which such
inspection or disclosure would likely, in the opinion of counsel for the
Company, cause the loss of an attorney/client privilege.
SECTION 3.4. Corporate Existence.
Subject to Article 4, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Subsidiary and the rights (charter and statutory) and
corporate franchises of the Company and its Subsidiaries; provided that the
Company shall not be required to preserve any such existence (except of the
Company), right or franchise if the Board of Directors of the Company, or of the
Subsidiary concerned, shall determine that the preservation thereof is no longer
desirable or necessary in the conduct of the business as presently conducted of
the Company or such Subsidiary and that the loss thereof is not adverse in any
material respect to the Holders or to the business, financial prospects, results
of operations or condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole.
SECTION 3.5. Compliance with Laws.
The Company is a duly registered bank holding company under the Bank
Holding Company Act of 1956, as amended. The Company and each of its
Subsidiaries possess all material authorizations, approvals, orders, licenses,
franchises, certificates and permits of and from all foreign and domestic
governmental regulatory officials and bodies (including all applicable banking
officials and bodies), necessary to own or hold their respective properties and
to conduct the respective businesses in which they are engaged. Each such
authorization, approval, order, license, franchise, certificate and permit is
valid and in full force and effect, and there is no proceeding pending or
threatened (and, to the best knowledge of the Company, no basis for any such
proceeding exists) which may lead to the revocation, termination, suspension or
non-renewal of any authorization, approval, order, license, franchise,
certificate or permit and there is no default thereunder.
SECTION 3.6. No Violation or Contravention.
The execution and delivery by the Company of this Indenture, the
issuance, sale and delivery of the Securities and the performance by the Company
of its obligations hereunder and under the Securities, and the consummation of
the transactions contemplated hereby and under the Securities have been duly
authorized by all necessary corporate action on the part of the Company and do
not and will not violate any provision of the Charter Documents of the Company
or of any of its Subsidiaries, and do not and will not violate, or conflict
with, or constitute a default under, or permit the termination of, or result in
the creation of any lien, claim or encumbrance upon any property of the Company
or any of its Subsidiaries under, (i) any statute or law or any judgment,
decree, order, regulation or rule of any court or governmental authority,
domestic or foreign, to which the Company or any of its Subsidiaries or any of
their respective properties may be subject, or (ii) any material contract,
indenture, mortgage, loan agreement, note, lease or other material agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which any of them may be bound, or to which any of their respective properties
may be subject, which conflict, default, termination or lien, claim or
encumbrance would have a material adverse effect upon the operations, business,
prospects, assets, properties or condition (financial or other) of the Company
and its subsidiaries taken as a whole.
SECTION 3.7. Notice of Defaults.
(a) In the event that any Indebtedness (in an amount which exceeds
$5,000,000, whether under a single agreement or in the aggregate) other than
Indebtedness under any Repurchase Agreement of the Company or any Subsidiary has
been or could upon the delivery of notice or passage of time or both be declared
due and payable before its maturity because of the occurrence of any event or
condition (including, without limitation, any Default under this Indenture), the
Company promptly shall give written notice thereof to the Trustee.
(b) In the event that the Company or any Subsidiary shall receive, with
respect to any Indebtedness (in an amount which exceeds $5,000,000) under any
Repurchase Agreement of the Company or any Subsidiary, a written notice from the
other party to such Repurchase Agreement clearly alleging a default under such
Repurchase Agreement which immediately enables, or would upon further notice or
lapse of time or both enable, such other party to declare such Indebtedness due
and payable before its maturity, the Company shall promptly give written notice
thereof to the Trustee.
SECTION 3.8. Compliance Certificate.
The Company shall deliver to the Trustee within 90 days after the end
of each fiscal year of the Company, and within 45 days after the end of each
fiscal quarter of the Company, an Officers' Certificate, which shall comply with
Section 10.5, and which shall: (a) state whether or not the signers know of any
Default, provided, if they do know of such a Default, the certificate shall
describe the Default and its status and the action that the Company is taking or
proposes to take with respect thereto; (b) state whether the Company is in
compliance with the covenants contained in Section 3.12; and (c) state whether
this Indenture is required to be qualified under the TIA.
The Company shall deliver to the Trustee, within 105 days after the end
of each of its fiscal years, an Accountants' Certificate stating (a) that their
audit examination has included a review of the terms of this Indenture and the
Securities as they relate to accounting matters and (b) whether, during the
course of their audit examination, any Default has come to their attention and,
if such a Default has come to their attention, specifying the nature and period
of existence thereof, provided that the independent certified public accountants
delivering such Certificate shall not be liable in respect of such statement by
reason of any failure to obtain knowledge of any such Default that would not be
disclosed in the course of an audit examination conducted in accordance with
generally accepted auditing standards.
Promptly after any officer of the Company obtains knowledge of any
Default, and in any event within 10 Business Days thereafter, the Company shall
deliver an Officer's Certificate to the Trustee describing such Default and its
status and the action that the Company is taking or proposes to take with
respect thereto.
SECTION 3.9. SEC Reports.
The Company shall file with the Trustee, within 15 days after it files
them with the SEC, copies of the annual reports and of the information,
documents (including Forms 10-K, 10-Q and 8-K) and any other reports (or copies
of such portions of any of the foregoing as the SEC may by rules and regulations
prescribe), if any, which the Company is required to file with the SEC pursuant
to Section 13 or 15(d) of the Exchange Act. The Company also shall comply with
the other provisions of TIA ss. 314(a) whether or not this Indenture is
qualified under the TIA.
SECTION 3.10. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, or plead, or in any manner whatsoever
claim, and shall resist any and all efforts to be compelled to take the benefit
or advantage of, any stay or extension law or any usury law or other law which
would prohibit or forgive the Company from paying all or any portion of the
principal of and/or interest on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or advantage of
any such law and covenants that it shall not hinder, delay or impede the
execution of any power herein granted to the Trustee but shall suffer and permit
the execution of every such power as though no such law had been enacted.
SECTION 3.11. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before any penalty accrues thereon, (i) all income and other material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Subsidiary or upon the income, profits or property of the Company or any
Subsidiaries and (ii) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a material Lien upon the property of the Company
or any Subsidiaries; provided that none of the Company or any Subsidiary shall
be required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claims the amount, applicability or validity of which is
being contested in good faith by appropriate proceedings and for which adequate
provision has been made.
SECTION 3.12. Maintenance of Properties and Insurance.
The Company shall cause all properties (except for such properties as
are not material in the aggregate to the operations, business, condition
(financial or otherwise) of the Company and its Subsidiaries taken as a whole)
owned by or leased to it or any Subsidiary and used or useful in the conduct of
its business or the business of such Subsidiary to be maintained and kept in
normal condition, repair and working order and shall cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary, so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times.
The Company shall provide or cause to be provided, for itself and any
Subsidiaries of the Company, insurance (including appropriate self-insurance as
defined below) against loss or damage of the kinds customarily insured against
by corporations similarly situated and owning like properties, including, but
not limited to, public liability insurance, with reputable insurers or with the
government of the United States of America or an agency or instrumentality
thereof, in such amounts, with such deductibles and by such methods as shall be
customary for corporations similarly situated in the industry. For purposes of
the foregoing, "appropriate self-insurance" means any self-insurance if, and
only to the extent that, such self-insurance is customarily effected by
corporations engaged in the same or similar businesses, similarly situated, and
is otherwise prudent in the circumstances and the Company or such Subsidiary
maintains adequate reserves with respect thereto.
Nothing in this Section shall prevent the Company from pledging any of
its assets (whether already owned or acquired after the date hereof) as
collateral security for the Indebtedness and Obligations of the Company.
SECTION 3.13. Liquidation.
The Company shall not adopt any plan of liquidation which provides for,
contemplates or the effectuation of which is preceded by (A) the sale, lease,
conveyance or other disposition of all or substantially all the assets of the
Company otherwise than substantially as an entirety in accordance with Article 4
and (B) the distribution of all or substantially all the proceeds of such sale,
lease, conveyance or other disposition and of the remaining assets of the
Company to holders of Common Stock of the Company, unless the Company shall in
connection with the adoption of such plan make provision for, or agree that
prior to making any liquidating distributions it will make provision for, the
satisfaction in full in cash of the Company's obligations hereunder and under
the Securities as to the payment of all principal of and premium, if any, and
interest on the Securities.
SECTION 3.14. Information.
(a) For as long as any of the Securities remain outstanding and are
Restricted Securities, the Company covenants and agrees that it shall, during
any period in which it is not subject to Section 13 or 15(d) under the Exchange
Act, make available to any holder or beneficial holder of Securities that
continue to be Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Securities from such holder or beneficial holder,
the information specified in, and meeting the requirements of, Rule 144A(d)(4)
under the Securities Act.
(b) The Company shall provide to each Qualified Holder a copy of each
notice or certificate required to be delivered by it to the Trustee pursuant to
Section 3.7 or 3.8 and each Form 10-K or Form 10-Q delivered by it to the
Trustee pursuant to Section 3.9 concurrently with the delivery thereof to the
Trustee.
ARTICLE 4
MERGER, ETC.
SECTION 4.1. When Company May Merge, etc.
The Company shall not consolidate or merge with or into, or sell,
assign, transfer, convey, lease or otherwise dispose of, directly or indirectly,
all or substantially all of its assets to, any Person unless:
(1) the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to
which such sale, assignment, transfer or lease or conveyance
or other disposition shall have been made, is a corporation
organized and existing under the laws of the United States,
any state thereof or the District of Columbia;
(2) the corporation formed by or surviving any such
consolidation or merger (if other than the Company), or to
which such sale, lease, conveyance or other disposition shall
have been made, expressly assumes by supplemental indenture
the due and punctual payment or performance of all the
Obligations of the Company under the Securities and this
Indenture; and
(3) immediately before and immediately after such
transaction, and giving effect thereto, no Default shall have
occurred and be continuing.
The Company shall deliver to the Trustee prior to any proposed
transaction an Officers' Certificate, an Opinion of Counsel and an Accountants'
Certificate each stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
SECTION 4.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets, of the Company in accordance with Section 4.1,
the successor corporation formed by such consolidation or into which the Company
is merged or to which such transfer is made shall succeed to, and be substituted
for, and may exercise every right and power and will be bound by all obligations
and covenants of, the Company under this Indenture with the same effect as if
such successor corporation had been named as the Company herein and, in the case
of any sale, assignment, transfer, conveyance or disposition (other than a
transfer or conveyance by way of lease), the Company (which term shall for the
purpose mean the Person named as the "Company" in the first paragraph of this
Indenture or any successor corporation which previously shall have become liable
in the manner prescribed in this Article 4) shall be relieved of all obligations
and covenants and shall no longer exercise any rights or powers under this
Indenture and the Securities.
ARTICLE 5
DEFAULTS AND REMEDIES
SECTION 5.1. Events of Default.
An "Event of Default" occurs if:
(i) the Company defaults in the payment of interest
on any Security when the same becomes due and the default
continues for a period of 20 days, whether or not such payment
shall be prohibited by the provisions of Article 9 hereof;
(ii) the Company defaults in the payment of all or
any part of the principal of (or premium, if any, on) any
Security when the same becomes due and payable at maturity,
upon acceleration, redemption or otherwise, whether or not
such payment shall be prohibited by the provisions of Article
9 hereof;
(iii) the Company fails to comply with any of its
other agreements or covenants in, or provisions of, the
Securities or this Indenture, and such failure continues for
the period and after the notice specified below;
(iv) a final judgment or final judgments for the
payment of money are entered by a court or courts of competent
jurisdiction against the Company or any Subsidiary which
remains undischarged and unbonded for a period (during which
execution shall not be effectively stayed) of 60 days,
provided that the aggregate of all such judgments (to the
extent not paid or covered by insurance as confirmed to the
Company and the Trustee in writing by the appropriate
insurance carrier) exceeds $5,000,000;
(v) (A) the entry by a court having jurisdiction in
the premises of (1) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (2) a decree or order
adjudging the Company bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a
receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or of all or
substantially all of its assets, or ordering the winding up or
liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
(B) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or
any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or
order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Company of
all or substantially all of its assets or the taking of
corporate action by the Company in furtherance of any such
action, or the failure generally of the Company to pay its
debts as the same become due or the making by the Company of a
general assignment for the benefit of its creditors; or
(vi) (A) the entry by a court having jurisdiction in
the premises of (1) a decree or order for relief in respect of
any Significant Subsidiary of the Company in an involuntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or
(2) a decree or order adjudging any such Significant
Subsidiary bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of any such
Significant Subsidiary under any applicable Federal or State
law, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of any
such Significant Subsidiary or of all or substantially all of
its assets, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
(B) the commencement by any Significant Subsidiary of
the Company of a voluntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in
respect of any such Significant Subsidiary in an involuntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of any such
Significant Subsidiary or of all or substantially all of its
assets or the taking of corporate action by any such
Significant Subsidiary in furtherance of any such action, or
the failure generally of any such Significant Subsidiary to
pay its debts as the same become due or the making by any
Significant Subsidiary of a general assignment for the benefit
of its creditors; or
(vii) (A) (1) the appointment by the Federal Deposit
Insurance Corporation or the Board of Governors of the Federal
Reserve System (or other competent government agency having
primary regulatory authority over any Major Bank Subsidiary)
under any applicable Federal or State banking, insolvency or
other similar law now or hereafter in effect of a receiver,
conservator or other similar official for any Major Bank
Subsidiary or for all or substantially all of its assets or
(2) the entry of a decree or order in any case or proceeding
under any applicable Federal or State banking, insolvency or
other similar law now or hereafter in effect adjudging any
Major Bank Subsidiary insolvent or bankrupt, or appointing any
receiver, conservator or other similar official for any Major
Bank Subsidiary or for all or substantially all of its assets,
or ordering the winding up or liquidation of its affairs; or
(B) (1) the filing by any Major Bank Subsidiary with
the Federal Deposit Insurance Company or the Board of
Governors of the Federal Reserve System (or other competent
government agency having primary regulatory authority over any
Major Bank Subsidiary) of a notice of voluntary liquidation or
other similar action under any applicable Federal or State
banking, insolvency or other similar law now or hereafter in
effect or (2) the commencement by any Major Banking Subsidiary
of any case or proceeding under any applicable Federal or
State banking, insolvency or other similar law now or
hereafter in effect to be adjudicated insolvent or bankrupt or
seeking the appointment of a receiver, conservator or other
similar official for any Major Bank Subsidiary or for all or
substantially all of its assets, or the consent by any Major
Bank Subsidiary to the entry of a decree or order in any case
or proceeding under the Federal or State banking, insolvency
or other similar laws adjudging any Major Bank Subsidiary
insolvent or bankrupt, or appointing any receiver, conservator
or other similar official for any Major Bank Subsidiary or for
all or substantially all of its assets, or ordering the
winding up or liquidation of its affairs or the taking of any
corporate action by any Major Bank Subsidiary in furtherance
of such action.
A Default under clause (iii) of this Section 5.1 is not an Event of
Default until the Trustee notifies the Company in writing, or the Holders of at
least 25% in aggregate principal amount of the Securities then outstanding
notify the Company and the Trustee in writing, of the Default, and the Company
does not cure the Default within 30 days after receipt of the notice. The notice
must specify the Default, demand that it be remedied and state that the notice
is a "Notice of Default." Such notice shall be given by the Trustee if so
requested in writing by the Holders of at least 25% in aggregate principal
amount of the Securities then outstanding. Any notice required to be delivered
by the Trustee to the Company hereunder shall be given promptly after the
Trustee becomes aware of such Default or is requested by the Holders to deliver
such notice.
SECTION 5.2. Acceleration.
If an Event of Default specified in clause (v) or (vii) of Section 5.1
occurs, the principal of and accrued interest on the Securities shall become and
be immediately due and payable without any declaration or other act on the part
of any Holder. The Holders of at least a majority in aggregate principal amount
of the Securities then outstanding by written notice to the Trustee may rescind
an acceleration and its consequences if (i) all existing Events of Default,
other than the nonpayment of principal of or interest on the Securities which
have become due solely because of the acceleration, have been cured or waived
and (ii) the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction. No such waiver or rescission shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
SECTION 5.3. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect the payment of
principal of, premium, if any, or interest on the Securities, to the extent that
any of the foregoing are then due and owing or to enforce the performance of any
provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
hereunder shall not impair the right or remedy or constitute a waiver thereof
and no single or partial exercise thereof precludes any other or further
exercise thereof or the exercise of any other right or privilege. No right or
remedy provided herein is exclusive of any other right or remedy provided by
law. All rights and remedies are cumulative to the extent permitted by law.
SECTION 5.4. Waiver of Past Defaults.
Subject to Sections 5.2, 5.7 and 8.2, the Holders of at least a
majority in principal amount of the Securities then outstanding by notice to the
Trustee may waive on behalf of the holders of all the Securities an existing
Default and its consequences, except a Default in the payment of the principal
of, premium, if any, or interest on any Security as specified in clauses (i) or
(ii) of Section 5.1. Upon any such waiver, such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
SECTION 5.5. Control by Majority.
The Holders of at least a majority in aggregate principal amount of the
Securities then outstanding may 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 it. However, the Trustee may refuse to follow any
direction: (a) that conflicts with law or this Indenture, (b) that the Trustee
determines may be unduly prejudicial to the rights of other Securityholders or
(c) that may involve the Trustee in personal liability against which the Trustee
is not indemnified to its satisfaction.
SECTION 5.6. Limitation on Suits.
No Holder of any Security shall have any right by virtue or by availing
itself of any provision of this Indenture to institute any action or proceeding
at law or in equity or in bankruptcy or otherwise upon or under or with respect
to this Indenture, or for the appointment of a trustee, receiver, liquidator,
custodian or other similar official or for any other remedy hereunder unless:
(i) the Holder gives to the Trustee written notice of
a continuing Event of Default;
(ii) the Holders of at least 25% in aggregate
principal amount of the Securities then outstanding make a
written request to the Trustee to institute such action or
proceeding in its own name as trustee hereunder;
(iii) such Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability, cost
or expense to be incurred therein or thereby;
(iv) the Trustee does not comply with such request
within 60 days after receipt of such notice, request and the
offer of indemnity;
(v) during such 60 day period the Holders of at least
a majority in principal amount of the Securities then
outstanding do not give the Trustee a direction inconsistent
with the request; and
(vi) no direction inconsistent with such request
shall have been given to the Trustee pursuant to Section 5.5.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain or seek to obtain a preference or priority
over another Securityholder or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable and common benefit of
all holders of Securities. For the protection and enforcement of the provisions
of this Section, each and every Securityholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
SECTION 5.7. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, except for the
provisions of Article 9, the right of any Holder of a Security to receive
payment of principal of, premium, if any, or interest on the Security on or
after the respective due dates expressed in the Security, or to bring suit for
the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of the Holder.
SECTION 5.8. Collection Suit by Trustee.
If an Event of Default specified in Section 5.1(i) or (ii) occurs and
is continuing, the Trustee may in its own name or as trustee of an express
trust, institute any action or proceeding at law or in equity against the
Company or any other obligor upon the Securities for the collection of the whole
amount of principal, premium, if any, and accrued interest remaining unpaid on
the Securities, together with interest on overdue principal and, to the extent
that such payment is lawful, interest on overdue premium, if any, and
installments of interest, in each case at the rate then borne by the Securities,
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel and prosecute any such
action or proceeding to judgment or final decree and enforce any such judgment
or final decree against the Company or any other obligor upon the Securities and
collect in the manner provided by law out of the property of the Company or any
other obligor upon the Securities, wherever situated, the moneys adjudged or
decreed to be payable.
SECTION 5.9. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Securityholders
allowed in any judicial proceedings relative to the Company (or any other
obligor upon the Securities), its creditors or its property and shall be
entitled and empowered to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same, and any
trustee, receiver, liquidator, custodian or similar official in any such
judicial proceeding is hereby authorized by each Securityholder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Securityholders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 6.7 except as a result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or vote for or accept or adopt on behalf of any Securityholder 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 Securityholder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities or the production thereof in any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the holders of the Securities.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Securities, and it shall not be necessary to make any holders of the
Securities parties to any such proceedings.
SECTION 5.10. Priorities.
If the Trustee collects any money pursuant to this Article 5, it shall,
subject to the provisions of Article 9, pay out the money in the following
order:
First: to the Trustee for amounts due under Section 6.7;
Second: in case the principal of the Securities shall not have
become and be then due and payable, to the payment of interest in
default in the order of the maturity of the installments of such
interest, with interest upon the overdue installments of interest at
the same rate as the rate of interest specified in the Securities, such
payments to be made ratably to the person entitled thereto, without
discrimination or preference;
Third: in case the principal of the Securities shall have
become and shall be then due an payable, to the payment of the whole
amount then owing and unpaid upon all the Securities for principal and
interest, with interest upon the overdue principal, and upon overdue
installments of interest at the same rate as the rate of interest
specified in the Securities; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Securities, then to the payment of such principal and interest, without
preference or priority of principal over interest, or of interest over
principal, or of any installment of interest over any other installment
of interest, or of any Security over any other Security, ratably to the
aggregate of such principal and accrued and unpaid interest; and
Fourth: to the Company or any other obligors on the
Securities, as their interests may appear, or any other Person lawfully
entitled thereto or as a court of competent jurisdiction may direct.
The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Securityholders pursuant to this
Section 5.10.
SECTION 5.11. Undertaking for Costs.
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 a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 5.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 5.7, or a suit by Holders of more than 10% in aggregate
principal amount of the Securities then outstanding.
ARTICLE 6
TRUSTEE
SECTION 6.1. Duties of Trustee.
(a) If 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 man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee undertakes to perform only those
duties that are specifically set forth in this Indenture or
the TIA and no others, and no implied covenants or obligations
shall be read into this Indenture against the Trustee.
(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 delivered to the
Trustee by the Company pursuant to this Indenture and
conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of
this Indenture but need not confirm the accuracy of
mathematical computations.
(c) Notwithstanding anything to the contrary herein contained, the
Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 6.1.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts.
(3) Except as otherwise provided in Section 6.1(a),
the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.5.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c) and (e) of this Section 6.1.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee may refuse to perform
any duty or exercise any right or power unless it receives reasonable security
or indemnity against any loss, liability, cost or expense, including but not
limited to the legal fees and disbursements of its counsel.
(f) The Trustee shall not be obligated to pay interest on any money
received by it unless otherwise agreed in writing with the Company. Money held
in trust by the Trustee need not be segregated from other funds except to the
extent required by law. The Trustee has no obligation to invest monies held by
it hereunder except pursuant to written instructions received by the Trustee and
signed by two officers of the Company.
SECTION 6.2. Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith and without
negligence in reliance on the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed and retained with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith and without negligence which it reasonably believes to be
authorized or within the rights or powers conferred upon it by this Indenture.
(e) The Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel as to matters of law shall be full and
complete authorization and protection in respect of any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
(f) Unless otherwise specifically provided in the Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(g) In the event an opinion of counsel is required to be delivered
pursuant to Section 2.6 at such time as the Trustee is not also the Registrar,
then such opinion of counsel shall also be satisfactory to the Trustee.
SECTION 6.3. Individual Rights of Trustee.
The Trustee, or any agent of the Company or the Trustee, in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or an Affiliate with the same rights it
would have if it were not Trustee. Any Agent may do the same with like rights.
However, the Trustee is subject to Sections 6.10 and 6.11.
SECTION 6.4. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities; it shall not be accountable for the Company's
use of the proceeds from the Securities; it shall not be accountable for any
money paid to the Company, or upon the Company's direction, if made under and in
accordance with any provision of this Indenture; it shall not be responsible for
the use or application of any money received by any Paying Agent other than the
Trustee; and it shall not be responsible for any statement of the Company in
this Indenture or any statement in the Securities other than its certificate of
authentication.
SECTION 6.5. Notice of Defaults.
If a Default occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to Securityholders a notice of the Default
within 90 days after the occurrence thereof unless such Default shall have been
cured before the giving of such notice, provided that except in the case of a
Default in the payment of the principal of or interest on any Security
(including any failure to make any mandatory redemption payment required
hereunder), the Trustee may withhold the notice if and so long as the board of
directors, executive committee or a trust committee of directors and/or
responsible officers of the Trustee in good faith determines that withholding
the notice is in the interests of Securityholders.
SECTION 6.6. Reports by Trustee to Holders.
This Section 6.6 shall not be operative as part of this Indenture
unless and until this Indenture is qualified under the TIA and, until such
qualification, this Indenture shall be construed as if this Section 6.6 were not
contained herein. The Company shall provide the Trustee with written notice as
promptly as practical, but in any event no later than 30 days before the date
(if any) on which this Indenture is expected to be qualified under the TIA.
Each calendar year the Trustee, if required by the provisions of TIA
ss. 313(a), shall mail to Securityholders a brief report dated as of such
reporting date that complies with TIA ss. 313(a). The Trustee also shall comply
with TIA ss. 313(b) and ss. 313(c).
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the SEC and each securities
exchange, if any, on which the Securities are listed. The Company shall notify
the Trustee in writing when the Securities are listed on any securities
exchange.
SECTION 6.7. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements, advances
and expenses incurred by it in connection with the performance of its duties
under this Indenture including reasonable compensation, disbursements and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any loss, liability,
cost or expense incurred by it arising out of or in connection with the
performance of its duties under this Indenture, except as set forth in the next
paragraph. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. The Company shall defend such claim and the Trustee shall
cooperate in such defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through negligence, willful misconduct
or bad faith. The Company need not pay for any settlement made by the Trustee
without the Company's consent. The Company will only withhold consent where in
good faith the Company believes there are reasonable grounds for withholding
consent.
The obligation of the Company under this Section 6.7 to compensate the
Trustee and to pay and reimburse the Trustee for such expenses, disbursements
and advances shall constitute additional Indebtedness.
To secure the Company's payment obligations in this Section, subject to
the priorities set forth in Section 5.10 hereof, the Trustee shall have a Lien
prior to the Securities on all money or property held or collected by the
Trustee, except that held in trust to pay the principal of and interest on
particular Securities. Such obligations shall survive the satisfaction and
discharge of the Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in clause (v) and (vi) of Section 5.1 occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any bankruptcy law.
SECTION 6.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
Subject to TIA ss. 310(b), the Trustee may resign and be discharged
from the trust hereby created by so notifying the Company in writing, such
resignation and discharge to become effective as provided in the last paragraph
of this Section. The Holders of a majority in principal amount of the then
outstanding Securities may remove the Trustee by so notifying the Trustee and
the Company in writing. The Company may remove the Trustee if:
(i) the Trustee fails to satisfy the requirements of
Section 6.10;
(ii) the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect to
the Trustee under any bankruptcy, insolvency, reorganization
or other similar law;
(iii) a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official or other public
officer takes charge of the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee by written instrument, executed by the Board of Directors of the
Company, one copy of which instrument shall be delivered to the resigning or
removed Trustee and one copy to the successor Trustee. The Trustee shall be
entitled to payment of its fees and reimbursement of its expenses while acting
as Trustee.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the then outstanding Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Securityholder who has
been a Securityholder for at least 6 months, fails to comply with Section 6.10,
any Securityholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to all Securityholders. A retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, subject to the Lien
provided for in Section 6.7. Notwithstanding replacement of the Trustee pursuant
to this Section 6.8, the Company's obligations under Section 6.7 shall continue
for the benefit of the retiring Trustee.
SECTION 6.9. Successor Trustee or Agent by Merger, etc.
If the Trustee or an Agent consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee or any Agent, subject, inter alia, to the provisions of
Section 6.10.
SECTION 6.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be a
corporation 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, shall be subject
to supervision or examination by Federal or State authority and shall have a
combined capital and surplus of at least $100,000,000 as set forth in its most
recent published annual report of condition and shall not be the Company or any
Subsidiary or Affiliate of the Company.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1). The Trustee is subject to and will comply at
all times with TIA ss. 310(b) whether or not this Indenture is then qualified
under the TIA.
SECTION 6.11. Preferential Collection of Claims Against the Company.
The Trustee shall be subject to, and the Trustee shall at all times
comply with, TIA ss. 311(a), excluding any creditor relationship listed in TIA
ss. 311(b). A Trustee who has resigned or been removed shall be subject to TIA
ss. 311(a) to the extent indicated therein whether or not this Indenture is then
qualified under the TIA.
ARTICLE 7
DISCHARGE OF INDENTURE
SECTION 7.1. Termination of Company's Obligations.
The Securities shall not be callable or redeemable by the Company. This
Indenture shall cease to be of further effect (except that the Company's
obligations under Section 6.7 and the Trustee's and Paying Agent's obligations
under Section 7.3 shall survive) when all outstanding Securities theretofore
authenticated and issued have been delivered (other than destroyed, lost or
stolen Securities which have not been replaced or paid) to the Trustee for
cancellation and the Company has paid all sums payable hereunder and under the
Securities. In addition, the Company may terminate all of its obligations under
this Indenture, other than its obligations under those Sections specifically
noted below, at any time within one year of the stated maturity of the
Securities if:
(1) (a) the Company irrevocably deposits in trust
with the Trustee cash or U.S. Government Obligations (which
shall not be callable or payable at the issuer's option)
sufficient (in an opinion set forth in an Accountant's
Certificate delivered by the Company to the Trustee) to pay,
or which at maturity will be sufficient to pay, principal,
premium, if any, and interest on the Securities to and at
maturity and to pay all other sums payable by it hereunder,
provided that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such U.S.
Government Obligations to the payment of said principal,
premium, if any, and interest with respect to the Securities;
and (b) provided such deposit shall not cause the Trustee to
have a conflicting interest for purposes of the TIA, whether
or not the Indenture shall then be qualified under the TIA;
and (c) no Event of Default pursuant to clause (v), (vi) or
(vii) of Section 5.1 or event which with notice or lapse of
time would become an Event of Default pursuant to clause (v),
(vi) or (vii) of Section 5.1 shall have occurred and be
continuing on the date of such deposit or during the period
ending 123 days after such date; and (d) the Company has
delivered to the Trustee (i) either (x) a ruling directed to
the Trustee received from the Internal Revenue Service to the
effect that the Holders of the Securities will not recognize
income, gain or loss for Federal income tax purposes as a
result of the Company's exercise of its option under this
Section 7.1 and will be subject to Federal income tax in the
same manner and at the same times as would have been the case
if such option had not been exercised or (y) an Opinion of
Counsel to the same effect as the ruling described in clause
(x) accompanied by a ruling to that effect published by the
Internal Revenue Service and (ii) an Opinion of Counsel to the
effect that (x) the trust funds will not be subject to any
rights of holders of Senior Indebtedness including without
limitation those arising under Article 9 of this Indenture,
and (y) after the passage of 123 days following the deposit,
the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally; and
(2) the Company delivers to the Trustee an Officers'
Certificate stating that all of the provisions of this Section
7.1 have been complied with, and an Opinion of Counsel,
reasonably satisfactory to the Trustee, to the same effect;
and
(3) no Default shall have occurred and be continuing
on the date of such deposit.
Then, in such event, the obligations of the Company under this
Indenture shall cease to be of further effect (except as provided in this
paragraph) and the Trustee, on demand of the Company, shall execute proper
instruments acknowledging confirmation of and discharge under this Indenture.
The Company may make the deposit only if Article 9 does not prohibit such
payment. However, the Company's obligations in Sections 2.3, 2.4, 2.5, 2.6, 2.7,
2.13, 3.1, 3.2, 3.12, 6.7, 6.8, 7.1, 7.2 and 7.4 and the Trustee's and Paying
Agent's obligations hereunder, including under Section 7.3, shall survive until
the Securities are no longer outstanding. Thereafter, only the Company's and the
Trustee's obligations in Section 6.7 and the Trustee's and Paying Agent's
obligations in Section 7.3 shall survive. After such irrevocable deposit made
pursuant to this Section 7.1 and satisfaction of the other conditions set forth
in this Section 7.1, the Trustee upon the written request signed by two Officers
of the Company shall acknowledge in writing the discharge of the Company's
obligations under this Indenture except for those surviving obligations
specified above.
In order to have money available on a payment date to pay principal or
interest on the Securities, the U.S. Government Obligations shall be payable as
to principal or interest on or before such payment date in such amounts as will
provide the necessary cash.
SECTION 7.2. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 7.1. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal and interest on the
Securities. Money and U.S. Government Obligations held in trust shall not be
subject to Article 9.
SECTION 7.3. Repayment to Company.
In connection with the satisfaction and discharge of this Indenture,
the Trustee and the Paying Agent shall promptly pay to the Company upon written
request any excess money or Securities then held by them.
The Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal, premium, if any, or
interest that remains unclaimed for two years after the date upon which such
payment shall have become due; provided that the Company shall have first caused
notice of such payment to be mailed to each Securityholder entitled thereto no
less than 30 days prior to such repayment. After payment to the Company,
Securityholders entitled to the money must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another
Person, and all liability of the Trustee and such Paying Agent with respect to
such money shall cease. If any money is returned to the Company pursuant to this
Section 7.3, the Company agrees to be responsible for compliance with the
escheat laws of the State of New Jersey.
SECTION 7.4. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money in
accordance with Section 7.2 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to Section 7.2 until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 7.2; provided that, if the Company has made any payment of principal of,
premium, if any, or interest on any Securities because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE 8
AMENDMENTS
SECTION 8.1. Without Consent of Holders.
The Company and the Trustee may amend this Indenture or the Securities
without the consent of any Securityholder:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to comply with Section 4.1;
(iii) to provide for uncertificated Securities in
addition to or in place of certificated Securities;
(iv) to make any change that does not adversely
affect the rights hereunder of any Securityholder, except
changes that adversely affect the rights of any holders of
Senior Indebtedness under Article 9 or Sections 5.1, 5.2, or
5.9 unless the holders of such Senior Indebtedness consent to
the change; or
(v) to comply with the TIA provided that, in the case
of clause (i) through (iv) above, inclusive, the Company has
delivered to the Trustee an Opinion of Counsel stating that
such change does not adversely affect the rights of any
Securityholder.
After an amendment or waiver under this Section 8.1 becomes effective,
the Company shall mail to Securityholders a notice briefly describing the
amendment or waiver.
The Company and the Trustee agree to amend this Indenture to the extent
required in connection with any registration of the Securities or New Securities
under the Securities Act and qualification of this Indenture (or a similar
indenture) under the TIA pursuant to the Registration Rights Agreement to
effectuate such registration and qualification as provided in the Registration
Rights Agreement.
SECTION 8.2. With Consent of Holders.
Except as provided below and subject to Sections 2.8 and 2.9, the
Company and the Trustee may amend this Indenture or the Securities with the
written consent of the Holders of at least a majority in principal amount of the
then outstanding Securities. Upon the written request of the Company signed by
two Officers, accompanied by a resolution of the Board of Directors of the
Company authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of the Securityholders as
aforesaid, the Trustee, subject to Section 8.6, shall join with the Company in
the execution of such supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver, but
it shall be sufficient if such consent approves the substance thereof. An
amendment under this Section may not make any change that adversely affects the
rights of any holders of Senior Indebtedness under Article 9 or Sections 5.1,
5.2 or 5.9 unless the holders of such Senior Indebtedness consent to the change.
After an amendment or waiver under this Section 8.2 becomes effective,
the Company shall mail to the Holder of each Security affected thereby a notice
briefly describing the amendment or waiver. Any failure of the Company to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture. The Holders of at least
a majority in principal amount of the Securities then outstanding may waive
compliance in a particular instance by the Company with any provision of this
Indenture or the Securities.
Without the consent of each Securityholder affected, however, an
amendment or waiver under this Section may not:
(i) change the amount of Securities whose Holders
must consent to an amendment or waiver;
(ii) reduce the rate of or change the time for
payment of interest including, without limitation, default
interest and additional interest payable pursuant to the
Registration Rights Agreement on any Security;
(iii) reduce the principal of any Security or change
the time for payment thereof;
(iv) make any Security payable in money other than
that stated in the Security;
(v) make any change in Section 5.4, 5.7 or the first
or fourth paragraphs of this Section 8.2;
(vi) make any change in Article 9 that adversely
affects in any manner the rights of any Securityholder; or
(vii) waive a Default in the payment of principal of
or interest on, or premium, if any, with respect to, any
Security.
SECTION 8.3. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities shall be set forth
in a supplemental indenture that complies with the TIA as then in effect whether
or not this Indenture is then qualified under the TIA. The Trustee shall be
entitled to receive and rely upon an opinion of counsel as to whether any such
supplemental indenture complies with the TIA.
SECTION 8.4. Revocation and Effect of Consents.
(a) Until an amendment or waiver becomes effective, a consent to it by
a Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his Security or portion of a Security if the Trustee receives
written notice of revocation before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite principal
amount of Securities have consented to such amendment or waiver. An amendment or
waiver becomes effective upon receipt by the Trustee of such Officers'
Certificate and the written consents from the Holders of the requisite
percentage in principal amount of Securities.
(b) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to an amendment
or waiver. If a record date is fixed, then notwithstanding the second and third
sentence of paragraph (a) of this Section 8.4, those Persons who were Holders at
such record date (or their duly designated proxies), and only those Persons,
shall be entitled to consent to such amendment or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent to an amendment or waiver shall be valid
or effective, if granted more than 120 days after such record date.
(c) After an amendment or waiver becomes effective, it shall bind every
Securityholder, unless it is of the type described in clauses (i) through (vii)
of Section 8.2. In such case, the amendment or waiver shall bind each Holder who
has consented to it and every subsequent Holder that evidences the same debt as
the consenting Holder's security.
SECTION 8.5. Notation on or Exchange of Securities.
Upon the Company's written request, the Trustee shall place an
appropriate notation provided by the Company about an amendment or waiver on any
Security thereafter authenticated. The Company in exchange for all Securities
may issue, and the Trustee shall authenticate, new Securities that reflect the
amendment or waiver.
SECTION 8.6. Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment hereto or supplemental indenture
authorized pursuant to this Article 8 if the amendment does not adversely affect
the rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In determining whether to sign such
amendment or supplemental indenture the Trustee shall be entitled to receive and
shall be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that such amendment or supplemental
indenture is authorized or permitted by this Indenture, that it is not
inconsistent herewith, and that it will be valid and binding upon the Company in
accordance with its terms. The Company may not sign an amendment hereto or
supplemental indenture until the Board of Directors approves it.
ARTICLE 9
SUBORDINATION
SECTION 9.1. Securities Subordinated to Senior Indebtedness.
Notwithstanding the provisions of Sections 5.2 and 5.3, the Company
covenants and agrees, and the Trustee and each Holder of the Securities by his
acceptance thereof (whether upon original issue or upon transfer, assignment or
exchange thereof) likewise covenants and agrees, that all payments of the
principal of, premium, if any, and interest on, the Securities by the Company
shall be subordinated in accordance with the provisions of this Article 9 to the
prior payment in full, in cash or cash equivalents, of all amounts payable under
Senior Indebtedness.
SECTION 9.2. Priority and Payment Over of Proceeds in Certain Events.
(a) Upon any payment or distribution of assets or securities of the
Company, as the case may be, of any kind or character, whether in cash, property
or securities, upon any dissolution or winding up or total or partial
liquidation or reorganization of the Company, whether voluntary or involuntary
or in bankruptcy, insolvency, receivership or other proceedings, all amounts
payable under Senior Indebtedness shall first be paid in full in cash, or
payment provided for in cash or cash equivalents, before the Holders or the
Trustee on behalf of the Holders shall be entitled to receive any payment of
principal of premium, if any, or interest on the Securities or distribution of
any assets or securities. Before any payment may be made by the Company of the
principal of, and premium, if any, or interest on the Securities upon any such
dissolution or winding up or liquidation or reorganization, any payment or
distribution of assets or securities of the Company of any kind or character,
whether in cash, property or securities, to which the Holders or the Trustee on
their behalf would be entitled, except for the provisions of this Article 9,
shall be made by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
directly to the holders of the Senior Indebtedness or their representatives or
to the trustee under any indenture under which the Senior Indebtedness may have
been issued to the extent necessary to pay all such Senior Indebtedness in full
after giving effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness except that the Securityholders would be entitled to
receive securities that are subordinated to Senior Indebtedness to at least the
same extent as the Securities.
(b) No direct or indirect payment by or on behalf of the Company of
principal of, premium, if any, or interest on the Securities whether pursuant to
the terms of the Securities or upon acceleration of otherwise shall be made and
no Securities may be acquired by the Company for cash or property if at the time
of such payment or acquisition there exists a default in the payment of all or
any portion of principal of, premium, if any, or interest on any Senior
Indebtedness when due and payable, and such default shall not have been cured or
waived or the benefits of this sentence waived by or on behalf of the holders of
such Senior Indebtedness.
(c) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, the Trustee or any Holder shall have
received any payment on account of the principal of, premium, if any, or
interest on the Securities (other than as permitted by paragraphs (a) and (b) of
this Section 9.2) at a time when such payment is prohibited by this Section 9.2
and before the principal or, premium, if any, and interest on Senior
Indebtedness is paid in full or provision made for such payment then and in such
event (subject to the provisions of Section 9.8) such payment or distribution
shall be received and held in trust for the holders of Senior Indebtedness and,
upon written notice delivered within 30 days after such payment was received by
the Trustee, shall be paid over to the holders of such Senior Indebtedness or
the representative of the holders of such Senior Indebtedness and pursuant to
the directions of such representatives, shall be paid over or delivered to the
holders of the Senior Indebtedness remaining unpaid, but only to the extent
necessary to pay in full in cash or cash equivalents the principal of, and
premium, if any, and interest on such Senior Indebtedness in accordance with its
terms after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness.
Nothing contained in this Article 9 shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to Section 5.2 or to pursue any rights or
remedies hereunder or otherwise permitted by applicable law, subject to the
rights under paragraphs (a), (b) and (c) above of holders of Senior Indebtedness
to receive cash, property or securities otherwise payable or deliverable to the
Holders of the Securities.
Upon any payment or distribution of assets or securities referred to in
this Article 9, the Trustee and the Holders shall be entitled to rely upon any
order or decree of a court of competent jurisdiction in which such dissolution,
winding up, liquidation or reorganization proceedings are pending and upon a
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent
or other Person (excluding the Company) making any such payment or distribution,
delivered to the Trustee for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article 9.
SECTION 9.3. Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article 9 or elsewhere in this Indenture
shall prevent (i) the Company, except under the conditions described in Section
9.2, from making payments at any time for the purpose of making such payments of
principal of, premium, if any, and interest on the Securities in accordance with
the provisions of this Indenture and the Securities, or from depositing with the
Trustee any moneys for such payments, or (ii) the application by the Trustee
(subject to the conditions contained in Section 9.2) of any moneys deposited
with it for the purpose of making such payments of principal of, premium, if
any, and interest on the Securities, to the Holders entitled thereto unless at
least one Business Day prior to the day upon which such payment would otherwise
(except for the prohibitions contained in Section 9.2) become due and payable,
the Trustee shall have received the written notice provided for in Section
9.2(c) or in Section 9.9. The Company shall give prompt written notice to the
Trustee of any dissolution, winding up, liquidation or reorganization of the
Company.
SECTION 9.4. Rights of Holders of Senior Indebtedness Not to be
Impaired.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act in good faith by any such
holder, or by any noncompliance by the Company, with the terms and provisions
and covenants herein regardless of any knowledge thereof any such holder may
have or otherwise be charged with.
The provisions of this Article 9 are intended to be for the benefit of,
and shall be enforceable directly by the holders of the Senior Indebtedness,
without any act or notice of acceptance hereof or reliance hereon.
SECTION 9.5. Authorization to Trustee to Take Action to Effectuate
Subordination.
Each Holder of Securities by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate, as between the holders of Senior Indebtedness and the
Holders, the subordination as provided in this Article 9 and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 9.6. Subrogation.
Upon the payment in full of all amounts payable under or in respect of
the Senior Indebtedness, the Holders shall be subrogated equally and ratably to
the rights of the holders of such Senior Indebtedness to receive payments or
distributions of assets of the Company made on such Senior Indebtedness until
the Securities shall be paid in full; and for the purposes of such subrogation,
no payments or distributions to holders of such Senior Indebtedness of any cash,
property or securities to which Holders of the Securities would be entitled
except for the provisions of this Article 9 and no payment over pursuant to the
provisions of this Article 9 to holders of such Senior Indebtedness by the
Holders, shall, as between the Company, its creditors other than holders of such
Senior Indebtedness and the Holders, be deemed to be a payment by the Company to
or on account of such Senior Indebtedness, it being understood that the
provisions of this Article 9 are solely for the purpose of defining the relative
rights of the holders of such Senior Indebtedness, on the one hand, and the
Holders, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article 9 shall have been
applied, pursuant to the provisions of this Article 9, to the payment of all
amounts payable under the Senior Indebtedness, then and in such case, the
Holders shall be entitled to receive from the holders of such Senior
Indebtedness at the time outstanding any payments or distributions received by
such holders of Senior Indebtedness in excess of the amount sufficient to pay
all amounts payable under or in respect of the Senior Indebtedness in full.
SECTION 9.7. Obligations of Company Unconditional.
Nothing contained in this Article 9 or elsewhere in this Indenture or
in any Security is intended to or shall impair, as between the Company and the
Holders, the obligations of the Company, which are absolute and unconditional,
to pay to the Holders the principal of, premium, if any, and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms and the terms hereof or is intended to or shall affect the relative
rights of the Holders and creditors of the Company other than the holders of the
Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or
any Holder from exercising all remedies otherwise permitted by applicable law
upon Default under this Indenture, subject to the rights, if any, under this
Article 9 of the holders of such Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy.
SECTION 9.8. Article 10 Not a Bar to Events of Default.
The failure to make a payment on account of principal of, premium, if
any, or interest on the Securities by reason of any provision of this Article 9
shall not be construed as preventing the occurrence of an Event of Default under
Section 5.1.
SECTION 9.9. Trustee Entitled to Assume Payment Not Prohibited in
Absence of Notice.
Neither the Trustee nor the Paying Agent shall at any time be charged
with the knowledge of the existence of any facts which would prohibit the making
of any payment to or by the Trustee or the Paying Agent or the taking of any
other action by the Trustee, unless and until the Trustee or Paying Agent shall
have received written notice thereof from the Company or one or more holders of
Senior Indebtedness or from any trustee or agent therefor; and, prior to the
receipt of any such written notice, the Trustee or Paying Agent shall be
entitled to assume conclusively that no such facts exist. Unless at least one
Business Day prior to the date on which by the terms of this Indenture any
moneys are to be deposited by the Company with the Trustee or any Paying Agent
(whether or not in trust) for any purpose (including, without limitation, the
payment of the principal premium, if any, or the interest on any Security), the
Trustee or Paying Agent shall have received with respect to such moneys the
written notice provided for in the preceding sentence, the Trustee or Paying
Agent shall have full power and authority to receive such moneys and to apply
the same to the purpose for which they were received and shall not be affected
by any notice to the contrary which may be received by it on or after such date.
Nothing contained in this Section 9.9 shall limit the right of the holders of
Senior Indebtedness to recover payments as contemplated by Section 9.2. The
Trustee shall be entitled to rely on the delivery to it of a written notice by a
Person representing himself or itself to be a holder of Senior Indebtedness (or
a trustee on behalf of, or other representative of, such holder) to establish
that such notice has been given by a holder of such Senior Indebtedness or a
trustee on behalf of any such holder.
SECTION 9.10. Right of Trustee to Hold Senior Indebtedness.
Subject to TIA xx.xx. 310(b) and 311, the Trustee and any Agent shall
be entitled to all of the rights set forth in this Article 9 in respect of any
Senior Indebtedness at any time held by it to the same extent as any other
holder of such Senior Indebtedness and nothing in this Indenture shall be
construed to deprive the Trustee or any Agent of any of its rights as such
holder.
SECTION 9.11. Trustee not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holder if it
shall mistakenly pay over or distribute to Securityholders or the Company or any
other person monies or assets to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article Nine or otherwise.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1. Trust Indenture Act Controls.
Notwithstanding any other provision of this Indenture, if any provision
of this Indenture limits, qualifies or conflicts with another provision which
would be deemed to be included in this Indenture by the TIA if this Indenture
were or shall become a qualified Indenture under the TIA, the required provision
of the TIA shall control whether or not this Indenture is then so qualified.
SECTION 10.2. Notices.
Any notice or communication to the Company or the Trustee is duly given
if in writing and delivered in person or transmitted by first-class mail
(registered or certified, return receipt requested) or by telecopier (confirmed
by first-class mail) or overnight air courier guaranteeing next day delivery to
the address set forth below:
If to the Company:
HUBCO, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, President
Telecopy No.: 000-000-0000
If to the Trustee:
Summit Bank
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Corporate Trust Department
Telecopy No.: (000) 000-0000
The Company or the Trustee by notice to the others may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the register kept the Registrar.
Failure to mail a notice or communication to a Securityholder or any defect in
such notice or communication shall not affect its sufficiency with respect to
other Securityholders.
If a notice or communication is mailed or sent in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it, except that notice to the Trustee or the Company shall only be
effective upon receipt thereof by the Trustee or the Company.
If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 10.3. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c), whether or not this Indenture is qualified
under the TIA.
SECTION 10.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall deliver to the Trustee:
(i) an Officer's Certificate (which shall include the
statements set forth in Section 10.5) stating that, in the
opinion of the signers, all conditions precedent and
covenants, compliance with which constitutes a condition
precedent, if any, provided for in this Indenture relating to
the proposed action or inaction have been complied with; and
(ii) an Opinion of Counsel reasonably satisfactory to
the Trustee (which shall include the statements set forth in
Section 10.5) stating that, in the opinion of such counsel,
all such conditions precedent and covenants, compliance with
which constitutes a condition precedent, if any, provided for
in this Indenture relating to the proposed action or inaction
have been complied with.
SECTION 10.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(i) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of such
Person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
(iv) a statement as to whether or not, in the opinion
of such Person, such condition or covenant has been complied
with.
SECTION 10.6. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 10.7. Legal Holidays.
If a payment date is a Legal Holiday, payment may be made on the next
Business Day, and, except in the case of the date on which the final payment of
principal is to be made, no interest on the amount payable on such payment date
shall accrue for the intervening period.
SECTION 10.8. Duplicate Originals.
The parties may sign any number of copies of this Indenture. One signed
copy is enough to prove this Indenture.
SECTION 10.9. Governing Law.
THIS INDENTURE AND EACH SECURITY SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW JERSEY APPLICABLE TO CONTRACTS TO BE PERFORMED WHOLLY IN THE STATE
OF NEW JERSEY, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS RULES THEREOF.
SECTION 10.10. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 10.11. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 10.12. Severability.
In case 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 10.13. No Recourse Against Others.
No director, officer, employee, stockholder, Subsidiary or Affiliate,
as such, of the Company shall have any liability for any obligations of the
Company under the Securities or this Indenture. Each Securityholder by accepting
a Security waives and releases such liability. The waiver and release are part
of the consideration for the issue of the Securities.
SECTION 10.14. Table of Contents, Headings, etc.
The Table of Contents, Cross Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 10.15. Counterpart Originals.
This Indenture may be signed in two or more counterparts. Each signed
copy shall be an original, but all of them together represent the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed and, where appropriate, their respective corporate seals to be
hereunto affixed and attested, all as of January __, 1994.
Dated: January ___, 1994 HUBCO, INC.
By: ____________________________
Dated: January ___, 1994 SUMMIT BANK
By: ______________________________
EXHIBIT A-1
[Face of Security]
CUSIP No.
No.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR ANY OTHER APPLICABLE SECURITIES LAW. THE
HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF HUBCO,
INC. (THE "COMPANY") THAT THIS SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (1) TO THE COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT IN A TRANSACTION COMPLYING WITH
REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM
REGISTRATION IN ACCORDANCE WITH RULE 144 (IF AVAILABLE) OR RULE 145 UNDER THE
SECURITIES ACT, (5) IN RELIANCE ON ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND SUBJECT IN THE CASE OF EACH OF CLAUSES
(2), (3), (4), (5) AND (6) ABOVE TO THE RECEIPT BY THE REGISTRAR OR CO-REGISTRAR
OF A CERTIFICATION OF THE TRANSFEROR TO SUCH EFFECT AND IN THE CASE OF EACH OF
CLAUSES (3), (4) AND (5) ABOVE TO THE DELIVERY TO THE TRANSFEREE OF DEFINITIVE
SECURITIES REGISTERED IN ITS NAME (OR IN ITS NOMINEE'S NAME) ON THE BOOKS
MAINTAINED BY THE REGISTRAR, AND IN THE CASE OF CLAUSE (5) ABOVE TO RECEIPT OF
AN OPINION (IN SUBSTANTIALLY THE FORM OF EXHIBIT C TO THE INDENTURE REFERRED TO
BELOW OR OTHERWISE SATISFACTORY TO THE COMPANY AND THE REGISTRAR) OF COUNSEL
EXPERIENCED IN SECURITIES MATTERS (AND WHICH COUNSEL MAY BE AN EMPLOYEE OF THE
TRANSFEROR) TO THE EFFECT THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, AND IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS IN ANY APPLICABLE STATE OF THE UNITED STATES.
HUBCO, INC.
7.75% SUBORDINATED DEBENTURE
DUE JANUARY 15, 2004
HUBCO, INC., a corporation organized and existing under the laws of the
State of New Jersey, promises to pay to ____________ or its registered assigns,
the principal sum of $______________ on January 15, 2004.
Interest Payment Dates: January 15 and July 15 beginning July 15, 1994
Record Dates: January 1 and July 1
HUBCO, INC.
Dated: By: __________________________
By: __________________________
__________________________ (SEAL)
THE DEBENTURES ARE NOT DEPOSITS OF HUBCO, INC. OR OF ANY BANKING SUBSIDIARY
THEREOF AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER FEDERAL AGENCY.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the
within-mentioned Indenture.
SUMMIT BANK, as Trustee
Dated:
By: _____________________
Authorized Signature
[Back of Security]
HUBCO, INC.
7.75% Subordinated Debenture due 2004
1. Interest. HUBCO, INC., a New Jersey corporation (the "Company"),
promises to pay interest on the principal amount of this Security at the
interest rate per annum shown above. The Company shall pay interest semiannually
on January 15 and July 15 of each year (each an "Interest Payment Date"),
commencing July 15, 1994. Interest on the Securities shall accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from January 14, 1994. The Company shall pay interest including interest that
accrues after or would accrue but for the commencement of any case, proceeding
or other action relating to the bankruptcy, insolvency or reorganization of the
Company to the extent that such interest is an allowed claim enforceable against
the debtor in a bankruptcy case under Title 11 of the U.S. Code on overdue
principal at the rate then borne by the Securities; it shall pay interest
including interest that accrues after or would accrue but for the commencement
of any case, proceeding or other action relating to the bankruptcy, insolvency
or reorganization of the Company to the extent that such interest is an allowed
claim enforceable against the debtor in a bankruptcy case under Title 11 of the
U.S. Code on overdue premium, if any, and installments of interest at the same
rate to the extent legally permitted. Interest shall be computed on the basis of
a 360-day year of twelve 30-day months.
2. Method of Payment. The Company shall pay interest on this Security
(except defaulted interest) to the Person who is the registered holder of this
Security at the close of business on the Record Date immediately preceding the
Interest Payment Date. Payments of principal, premium, if any, and interest
shall be made (i) upon application to the Trustee by the Holder or Holders of at
least U.S. $500,000 in aggregate principal amount of definitive Securities not
later than ten days prior to the relevant Record Date or date of maturity, by
wire transfer in immediately available funds to a U.S. dollar account maintained
and designated to the Trustee by such Holder or Holders with a bank in the
United States and (ii) by check mailed to the Holder's registered address if no
application is made on a timely basis pursuant to (i) above. The holder must
surrender this Security at the office of the Paying Agent to collect payments of
principal and premium, if any. The Company shall pay principal, premium, if any,
and interest in money of the United States of America that at the time of
payment is legal tender for payment of public and private debts. If a payment
date is a Legal Holiday, payment may be made on the next Business Day, and,
except on the case of the date on which the final payment of principal is made,
no interest on the amount payable on such payment date shall accrue for the
intervening period.
3. Paying Agent and Registrar. Initially, the Trustee shall act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-registrar and shall provide notice of any such change to each
Securityholder. The Company or any of its Subsidiaries or Affiliates may act in
any such capacity.
4. Indenture; Limitations. This Security is one of the Securities
issued by the Company under an Indenture dated as of January 14, 1994 (the
"Indenture") between the Company and Summit Bank (the "Trustee"). The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb) (the "TIA") as amended and in effect on the date of the Indenture
or, if this Indenture is qualified under the TIA, from and after the date of
such qualification, the TIA as amended and in effect at the date of
qualification. The Securities are subject to all such terms, the description
herein of the rights of the Holder of this Security is qualified in its entirety
by the provisions of the Indenture and Securityholders are referred to the
Indenture and the TIA for a statement of such terms. The Securities are general
unsecured obligations of the Company and limited to $25,000,000 in aggregate
principal amount. The Indenture imposes certain limitations on the ability of
the Company or the Trustee, as the case may be, to make payments in respect of
the Securities under certain circumstances. Capitalized terms used in this
Security and not defined in this Security shall have the meanings set forth in
the Indenture.
5. Denominations, Transfer, Exchange. The Securities initially were
issued in global form. Such global security represents such of the outstanding
Securities as shall be specified therein or endorsed thereon in accordance with
the Indenture. The Securities are in registered or global form without coupons
and only in denominations of $100,000 and integral multiples of $100,000. The
transfer of Securities may be registered and Securities may be exchanged as
provided in the Indenture. The Registrar may require a holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. In addition, a
Security presented or surrendered for registration of transfer or exchange for
another Security must be accompanied by a certification in the form provided in
the Indenture and in the case of a transfer of a Security in reliance on an
exemption from the registration requirements of the Securities Act, other than
Rule 144A, 144 or 145 or Regulation S, an opinion of counsel experienced in
securities matters (and which counsel may be an employee of the transferor) in
the form provided in the Indenture or otherwise satisfactory to the Company and
the Registrar.
6. Persons Deemed Owners. The registered holder of a Security may be
treated as its owner for all purposes.
7. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years after the date upon which such payment shall
have become due; provided that the Company shall have first caused notice of
such payment to be mailed to each Securityholder entitled thereto no less than
30 days prior to such repayment, the Trustee and the Paying Agent shall pay the
money back to the Company at its request. After that, Securityholders entitled
to the money must look to the Company for payment unless an abandoned property
law designates another Person and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
8. Discharge Prior to Maturity. The Securities shall not be callable or
redeemable by the Company. If within one year of the stated maturity of the
Securities the Company deposits with the Trustee cash or U.S. Government
Obligations (which shall not be callable or payable at the issuer's option)
sufficient (in an opinion set forth in an Accountant's Certificate delivered by
the Company to the Trustee) to pay principal of, premium, if any, and accrued
interest on the Securities to and at maturity, and all other amounts payable
under the Indenture, the Company shall be discharged from the Indenture and the
Securities, except for certain sections thereof and subject to certain
conditions.
9. Amendments and Waivers. Subject to certain exceptions, the Indenture
or the Securities may be amended with the consent of the holders of at least a
majority in principal amount of the then outstanding Securities, and any
existing default may be waived with the consent of the holders of a majority in
principal amount of the then outstanding Securities. Without the consent of any
Securityholder, the Indenture or the Securities may be amended to cure any
ambiguity, defect or inconsistency, to provide for the assumption of the
obligations of the Company under the Indenture by a successor corporation to the
extent permitted under the Indenture, to provide for uncertificated Securities
in addition to or in place of certificated Securities, to make any change that
does not adversely affect the rights of any Securityholder, except certain
changes that adversely affect rights of any holders of Senior Indebtedness or to
comply with the TIA.
10. Subordination. The Securities are subordinated in right of payment,
in the manner and to the extent set forth in the Indenture, to the prior payment
in full of all Senior Indebtedness (as defined in the Indenture) of the Company
whether outstanding on the date of the Indenture or thereafter created,
incurred, assumed or guaranteed. Each Securityholder by his acceptance hereof
agrees to be bound by such provisions and authorizes and expressly directs the
Trustee, on his behalf, to take such action as may be necessary or appropriate
to effectuate the subordination provided for in the Indenture and appoints the
Trustee his attorney-in-fact for such purpose.
11. Defaults and Remedies. An Event of Default is: default for 20 days
in payment of interest on the Securities; default in payment of all or any part
of principal or premium, if any, on the Securities when due at maturity, upon
acceleration or otherwise; failure by the Company for the period specified in
the Indenture after notice to it to perform certain covenants and to comply with
any of its other agreements in the Indenture or the Securities; certain final
judgments which remain undischarged; certain events of bankruptcy or insolvency;
and certain other events. If an Event of Default due to certain events of
bankruptcy or insolvency as described in the Indenture occurs and is continuing,
the principal of and accrued interest on the Securities shall become and be due
and payable immediately. Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, holders of a majority in principal amount of the
then outstanding Securities may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Securityholders notice of any continuing
default (except a default in payment of principal or interest) if it determines
that withholding notice is in their interests. The Company must furnish annual
and quarterly compliance certificates to the Trustee.
12. Trustee Dealings with Company. The Trustee, in its individual or
any other capacity, may become the owner or pledgee of Securities and may
otherwise deal with the Company, its Subsidiaries or its Affiliates, as if it
were not Trustee.
13. No Recourse Against Others. A director, officer, employee or
shareholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture. Each
Securityholder by accepting a Security waives and releases all such liability.
The waiver and release are part of the consideration for the issue of the
Securities.
14. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
15. Abbreviation. Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as:
TEN COM (= tenants in common), TEN ENT (= tenants by the entireties),
JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
16. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Securities as a convenience to the holders of
such Securities. No representation is made as to the accuracy of such numbers as
printed on the Securities, and reliance may be placed only on the other
identification numbers printed thereon.
17. Legend Required. Except as otherwise provided in the Indenture,
each certificate evidencing the Securities shall bear a legend in substantially
the form set forth on the face of this Security.
18. Registration Rights Agreement. The Securities are issued subject to
the Registration Rights Agreement. As provided in the Registration Rights
Agreement, the Company is obligated on or prior to a date (the "Additional
Interest Date") that is 180 days after the date of issuance of the Securities
(the "Closing Date") (i) to file and cause to become effective with the SEC a
registration statement on an appropriate form (the "Exchange Registration
Statement") with respect to a proposed offer (the "Registered Exchange Offer")
to the holders of the Securities, and (ii) to commence the Registered Exchange
Offer and cause the same to remain open for a period of not less than the period
required under applicable Federal and state law, to provide the Securityholders
the opportunity to exchange any and all of the Securities for a like aggregate
principal amount of debt securities of the Company that are substantially
identical to the Securities. If the Exchange Registration Statement shall not
have been filed and become effective and the Registered Exchange Offer commenced
on or before the Additional Interest Date, then on that date and thereafter
interest on the Securities shall be increased by one percent (1.00%) per annum.
Such additional interest shall cease to accrue on the date on which the Exchange
Registration Statement is filed and declared effective and a Registered Exchange
Offer commenced or, in certain circumstances, a shelf registration statement is
filed and has been declared effective pursuant to the Registration Rights
Agreement. This description of the Registration Rights Agreement is only a
summary and is qualified in its entirety by reference to the detailed provisions
in the Registration Rights Agreement.
ASSIGNMENT FORM
To assign this Debenture, fill in the form below and have your signature
guaranteed:
For value received, I or we assign and transfer this Debenture to
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(Insert assignee's social security or tax I.D. No.
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(Print or type assignee's name, address and zip code) and
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irrevocably appoint [______________] agent to transfer this Debenture on the
books of the Company. The agent may substitute another to act for him.
Date: __________________ Your Signature: _________________________
(Sign exactly as your name
appears in the Debenture)
Signature Guaranteed: ___________________________________________
EXHIBIT X-0
XXXXX Xx.
Xx. X-0 [Face of Security] $25,000,000
Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Security may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor
Depository. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("XXX"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR ANY OTHER APPLICABLE SECURITIES LAW. THE
HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF HUBCO,
INC. (THE "COMPANY") THAT THIS SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (1) TO THE COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT IN A TRANSACTION COMPLYING WITH
REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM
REGISTRATION IN ACCORDANCE WITH RULE 144 (IF AVAILABLE) OR RULE 145 UNDER THE
SECURITIES ACT, (5) IN RELIANCE ON ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND SUBJECT IN THE CASE OF EACH OF CLAUSES
(2), (3), (4), (5) AND (6) ABOVE TO THE RECEIPT BY THE REGISTRAR OR CO-REGISTRAR
OF A CERTIFICATION OF THE TRANSFEROR TO SUCH EFFECT AND IN THE CASE OF EACH OF
CLAUSES (3), (4) AND (5) ABOVE TO THE DELIVERY TO THE TRANSFEREE OF DEFINITIVE
SECURITIES REGISTERED IN ITS NAME (OR IN ITS NOMINEE'S NAME) ON THE BOOKS
MAINTAINED BY THE REGISTRAR, AND IN THE CASE OF CLAUSE (5) ABOVE TO RECEIPT OF
AN OPINION (IN SUBSTANTIALLY THE FORM OF EXHIBIT C TO THE INDENTURE REFERRED TO
BELOW OR OTHERWISE SATISFACTORY TO THE COMPANY AND THE REGISTRAR) OF COUNSEL
EXPERIENCED IN SECURITIES MATTERS (AND WHICH COUNSEL MAY BE AN EMPLOYEE OF THE
TRANSFEROR) TO THE EFFECT THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, AND IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS IN ANY APPLICABLE STATE OF THE UNITED STATES.
HUBCO, INC.
7.75% SUBORDINATED DEBENTURE
DUE JANUARY 15, 2004
HUBCO, INC., a corporation organized and existing under the laws of the
State of New Jersey, promises to pay to Cede & Co. or its registered assigns,
the principal sum of Twenty-five Million Dollars or such amount as shall be the
outstanding principal amount hereof after (i) subtracting the aggregate
principal amount of any definitive Securities issued upon transfer of or in
exchange for a portion or portions hereof and (ii) adding the aggregate
principal amount of any definitive Securities cancelled upon transfer or
exchange for a resulting portion or portions hereof on January 15, 2004.
Interest Payment Dates: January 15 and July 15 beginning July 15, 1994
Record Dates: January 1 and July 1
HUBCO, INC.
Dated: January ___, 1994 By: __________________________
By: __________________________
(SEAL)
THE DEBENTURES ARE NOT DEPOSITS OF HUBCO, INC. OR OF ANY BANKING SUBSIDIARY
THEREOF AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER FEDERAL AGENCY.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the
within-mentioned Indenture.
SUMMIT BANK, as Trustee
Dated: ________________, 1994
By: _____________________
Authorized Signature
[Back of Security]
HUBCO, INC.
7.75% Subordinated Debenture due 2004
1. Interest. HUBCO, INC., a New Jersey corporation (the "Company"),
promises to pay interest on the principal amount of this Security at the
interest rate per annum shown above. The Company shall pay interest semiannually
on January 15 and July 15 of each year (each an "Interest Payment Date"),
commencing July 15, 1994. Interest on the Securities shall accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from January 14, 1994. The Company shall pay interest including interest that
accrues after or would accrue but for the commencement of any case, proceeding
or other action relating to the bankruptcy, insolvency or reorganization of the
Company to the extent that such interest is an allowed claim enforceable against
the debtor in a bankruptcy case under Title 11 of the U.S. Code on overdue
principal at the rate then borne by the Securities; it shall pay interest
including interest that accrues after or would accrue but for the commencement
of any case, proceeding or other action relating to the bankruptcy, insolvency
or reorganization of the Company to the extent that such interest is an allowed
claim enforceable against the debtor in a bankruptcy case under Title 11 of the
U.S. Code on overdue premium, if any, and installments of interest at the same
rate to the extent legally permitted. Interest shall be computed on the basis of
a 360-day year of twelve 30-day months.
2. Method of Payment. The Company shall pay interest on this Security
(except defaulted interest) to the Person who is the registered holder of this
Security at the close of business on the Record Date immediately preceding the
Interest Payment Date. This being the Global Security (as defined in the
Indenture referred to below) deposited with DTC acting as depositary and
registered in the name of Cede & Co. ("Cede"), a nominee of DTC, Cede, as holder
of record of this Global Security shall be entitled to receive payments of
principal and interest by wire transfer of immediately available funds to a U.S.
dollar account maintained by Cede with a bank in the United States. The holder
must surrender this Security at the office of the Paying Agent to collect
payments of principal and premium, if any. The Company shall pay principal,
premium, if any, and interest in money of the United States of America that at
the time of payment is legal tender for payment of public and private debts. If
a payment date is a Legal Holiday, payment may be made on the next Business Day,
and, except on the case of the date on which the final payment of principal is
made, no interest on the amount payable on such payment date shall accrue for
the intervening period.
3. Paying Agent and Registrar. Initially, the Trustee shall act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-registrar and shall provide notice of any such change to each
Securityholder. The Company or any of its Subsidiaries or Affiliates may act in
any such capacity.
4. Indenture; Limitations. This Security is one of the Securities
issued by the Company under an Indenture dated as of January 14, 1994 (the
"Indenture") between the Company and Summit Bank (the "Trustee"). The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb) (the "TIA") as amended and in effect on the date of the Indenture
or, if this Indenture is qualified under the TIA, from and after the date of
such qualification, the TIA as amended and in effect at the date of
qualification. The Securities are subject to all such terms, the description
herein of the rights of the Holder of this Security is qualified in its entirety
by the provisions of the Indenture and Securityholders are referred to the
Indenture and the TIA for a statement of such terms. The Securities are general
unsecured obligations of the Company and limited to $25,000,000 in aggregate
principal amount. The Company irrevocably undertakes to the holder hereof to
exchange this Global Security in accordance with the terms of the Indenture in
whole or in part without charge upon request of such holder for definitive
Securities upon delivery hereof to the Registrar together with any certificates,
letters or writings required in Section 2.6 of the Indenture. Upon any exchange
or transfer of all or a portion of this Global Security for definitive
Securities, or upon any exchange or transfer of definitive Securities for an
interest in this Global Security, in accordance with the terms of the Indenture,
this Global Security shall be endorsed to reflect the change of the principal
amount evidenced hereby as provided for in Section 2.6(g) of the Indenture. The
Indenture imposes certain limitations on the ability of the Company or the
Trustee, as the case may be, to make payments in respect of the Securities under
certain circumstances. Capitalized terms used in this Security and not defined
in this Security shall have the meanings set forth in the Indenture.
5. Denominations, Transfer, Exchange. This global security represents
such of the outstanding Securities as shall be specified herein or endorsed
hereon in accordance with the Indenture. The aggregate amount of outstanding
Securities represented hereby may from time to time be reduced to reflect
exchanges. The Securities initially were issued in global form. The Securities
are in registered or global form without coupons and only in denominations of
$100,000 and integral multiples of $100,000. The transfer of Securities may be
registered and Securities may be exchanged as provided in the Indenture. The
Registrar may require a holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. In addition, a Security presented or
surrendered for registration of transfer or exchange for another Security must
be accompanied by a certification in the form provided in the Indenture and in
the case of a transfer of a Security in reliance on an exemption from the
registration requirements of the Securities Act, other than Rule 144A, 144 or
145 or Regulation S, an opinion of counsel experienced in securities matters
(and which counsel may be an employee of the transferor) in the form provided in
the Indenture or otherwise satisfactory to the Company and the Registrar.
6. Persons Deemed Owners. The registered holder of a Security may be
treated as its owner for all purposes.
7. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years after the date upon which such payment shall
have become due; provided that the Company shall have first caused notice of
such payment to be mailed to each Securityholder entitled thereto no less than
30 days prior to such repayment, the Trustee and the Paying Agent shall pay the
money back to the Company at its request. After that, Securityholders entitled
to the money must look to the Company for payment unless an abandoned property
law designates another Person and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
8. Discharge Prior to Maturity. The Securities shall not be callable or
redeemable by the Company. If within one year of the stated maturity of the
Securities the Company deposits with the Trustee cash or U.S. Government
Obligations (which shall not be callable or payable at the issuer's option)
sufficient (in an opinion set forth in an Accountant's Certificate delivered by
the Company to the Trustee) to pay principal of, premium, if any, and accrued
interest on the Securities to and at maturity, and all other amounts payable
under the Indenture, the Company shall be discharged from the Indenture and the
Securities, except for certain sections thereof and subject to certain
conditions.
9. Amendments and Waivers. Subject to certain exceptions, the Indenture
or the Securities may be amended with the consent of the holders of at least a
majority in principal amount of the then outstanding Securities, and any
existing default may be waived with the consent of the holders of a majority in
principal amount of the then outstanding Securities. Without the consent of any
Securityholder, the Indenture or the Securities may be amended to cure any
ambiguity, defect or inconsistency, to provide for the assumption of the
obligations of the Company under the Indenture by a successor corporation to the
extent permitted under the Indenture, to provide for uncertificated Securities
in addition to or in place of certificated Securities, to make any change that
does not adversely affect the rights of any Securityholder, except certain
changes that adversely affect rights of any holders of Senior Indebtedness or to
comply with the TIA.
10. Subordination. The Securities are subordinated in right of payment,
in the manner and to the extent set forth in the Indenture, to the prior payment
in full of all Senior Indebtedness (as defined in the Indenture) of the Company
whether outstanding on the date of the Indenture or thereafter created,
incurred, assumed or guaranteed. Each Securityholder by his acceptance hereof
agrees to be bound by such provisions and authorizes and expressly directs the
Trustee, on his behalf, to take such action as may be necessary or appropriate
to effectuate the subordination provided for in the Indenture and appoints the
Trustee his attorney-in-fact for such purpose.
11. Defaults and Remedies. An Event of Default is: default for 20 days
in payment of interest on the Securities; default in payment of all or any part
of principal or premium, if any, on the Securities when due at maturity, upon
acceleration or otherwise; failure by the Company for the period specified in
the Indenture after notice to it to perform certain covenants and to comply with
any of its other agreements in the Indenture or the Securities; certain final
judgments which remain undischarged; certain events of bankruptcy or insolvency;
and certain other events. If an Event of Default due to certain events of
bankruptcy or insolvency as described in the Indenture occurs and is continuing,
the principal of and accrued interest on the Securities shall become and be due
and payable immediately. Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, holders of a majority in principal amount of the
then outstanding Securities may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Securityholders notice of any continuing
default (except a default in payment of principal or interest) if it determines
that withholding notice is in their interests. The Company must furnish annual
and quarterly compliance certificates to the Trustee.
12. Trustee Dealings with Company. The Trustee, in its individual or
any other capacity, may become the owner or pledgee of Securities and may
otherwise deal with the Company, its Subsidiaries or its Affiliates, as if it
were not Trustee.
13. No Recourse Against Others. A director, officer, employee or
shareholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture. Each
Securityholder by accepting a Security waives and releases all such liability.
The waiver and release are part of the consideration for the issue of the
Securities.
14. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
15. Abbreviation. Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as:
TEN COM (= tenants in common), TEN ENT (= tenants by the entireties),
JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
16. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Securities as a convenience to the holders of
such Securities. No representation is made as to the accuracy of such numbers as
printed on the Securities, and reliance may be placed only on the other
identification numbers printed thereon.
17. Legend Required. Except as otherwise provided in the Indenture,
each certificate evidencing the Securities shall bear a legend in substantially
the form set forth on the face of this Security.
18. Registration Rights Agreement. The Securities are issued subject to
the Registration Rights Agreement. As provided in the Registration Rights
Agreement, the Company is obligated on or prior to a date (the "Additional
Interest Date") that is 180 days after the date of issuance of the Securities
(the "Closing Date") (i) to file and cause to become effective with the SEC a
registration statement on an appropriate form (the "Exchange Registration
Statement") with respect to a proposed offer (the "Registered Exchange Offer")
to the holders of the Securities, and (ii) to commence the Registered Exchange
Offer and cause the same to remain open for a period of not less than the period
required under applicable Federal and state law, to provide the Securityholders
the opportunity to exchange any and all of the Securities for a like aggregate
principal amount of debt securities of the Company that are substantially
identical to the Securities. If the Exchange Registration Statement shall not
have been filed and become effective and the Registered Exchange Offer commenced
on or before the Additional Interest Date, then on that date and thereafter
interest on the Securities shall be increased by one percent (1.00%) per annum.
Such additional interest shall cease to accrue on the date on which the Exchange
Registration Statement is filed and declared effective and a Registered Exchange
Offer commenced or, in certain circumstances, a shelf registration statement is
filed and has been declared effective pursuant to the Registration Rights
Agreement. This description of the Registration Rights Agreement is only a
summary and is qualified in its entirety by reference to the detailed provisions
in the Registration Rights Agreement.
ASSIGNMENT FORM
To assign this Debenture, fill in the form below and have your signature
guaranteed:
For value received, I or we assign and transfer this Debenture to
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(Insert assignee's social security or tax I.D. No.
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-----------------------------------------------------------------
-----------------------------------------------------------------
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(Print or type assignee's name, address and zip code) and
-----------------------------------------------------------------
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irrevocably appoint [______________] agent to transfer this Debenture on the
books of the Company. The agent may substitute another to act for him.
Date: __________________ Your Signature: _________________________
(Sign exactly as your name
appears in the Debenture)
Signature Guaranteed: ___________________________________________
SCHEDULE OF EXCHANGES FOR DEFINITIVE SECURITIES
The following exchanges of a part of this Global Security for definitive
Securities have been made:
Amount of decrease Amount of increase Principal Amount of
this Signature of in Principal Amount in Principal Amount
Global Security authorized officer of this Global of this
Global following such decrease of Trustee or
Date of Exchange Security Security (or increase) Securities custodian
---------------- -------- -------- ------------- --------------------
EXHIBIT A
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER OF SECURITIES
Re: 7.75% Subordinated Debentures due 2004 of Hubco, Inc. (the "Securities")
This Certificate relates to $_______ principal amount of Securities
held in * ____book-entry or * ____ definitive form by the undersigned (the
"Transferor").
The Transferor*:
|_| has requested the Registrar or co-registrar by written order to
deliver in exchange for its beneficial interest in the Global Security held by
the depository a Security or Securities in definitive, registered form of
authorized denominations and an aggregate principal amount equal to its
beneficial interest in such Global Security (or the portion thereof indicated
above); or
|_| has requested the Registrar or co-registrar by written order to
register $_________ (U.S.) principal amount of Securities which are held in the
form of definitive Securities in the name of the undersigned and which have been
delivered to the Registrar or co-registrar for exchange of such Securities for a
beneficial interest in the Global Security. In connection with such request and
in respect of such Securities, the Transferor does hereby certify that it is a
"qualified institutional buyer" as defined below.
|_| has requested the Registrar or co-registrar by written order to
exchange or register the transfer of a Security or Securities.
In connection with such request and in respect of each such Security,
the Transferor does hereby certify as follows:*
|_| Upon registration of such transfer, each beneficial owner of the
Securities will be a "qualified institutional buyer" (as defined in Rule 144A
under the Securities Act of 1933, as amended (the "Securities Act")), and each
such person has been advised that the Securities have been resold, pledged or
otherwise transferred to it in reliance upon Rule 144A;
|_| Each person in whose name the Securities are to be registered upon
transfer (or, in the case of a transfer to a nominee, each beneficial owner of
such Securities) has been advised that such notes have been resold, pledged or
otherwise transferred to it in reliance upon Regulation S under the Securities
Act, and each such person has been advised and has confirmed to the Transferor
that the sale, pledge or other transfer has been made in compliance with the
provisions of Regulation S and the address of such person is an address outside
the United States (as defined in Regulation S);
|_| Such Security is being transferred pursuant to Rule 144 or Rule 145
under the Securities Act or pursuant to an effective registration statement
under the Securities Act;
|_| Such Security is being transferred in reliance on an exemption from
the registration requirements of the Securities Act other than the exemptions
specified above. An opinion (in substantially the form of Exhibit C to the
Indenture or otherwise satisfactory to the Company and the Registrar) of counsel
experienced in securities matters (which counsel may be an employee of the
transferor), to the effect that such transfer does not require registration
under the Securities Act and is in compliance with any applicable securities
laws of the applicable state, accompanies this Certificate.
---------------------------
[INSERT NAME OF TRANSFEROR]
By:
Date:
* Check applicable box in the case of a transfer of securities.
EXHIBIT C
[FORM OF OPINION OF COUNSEL]
[Letterhead of Counsel]
[Date]
Hubco, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
[------------------],
as Registrar
[------------------],
[------------------],
Re: $ 25,000,000 Principal Amount of 7.75%
Subordinated Debentures due 2004 of HUBCO, Inc.
Gentlemen:
[Name of transferor] has requested that we deliver this opinion to you
in connection with the transfer (the "Transfer") to [name of transferee] (the
"Transferee") of the above-referenced debentures (the "Debentures") of Hubco,
Inc.
In connection with this opinion, we have relied upon a certificate of
an officer of the Transferee, a copy of which is annexed hereto, and have made
such other investigation as we deem necessary or appropriate to enable us to
render the opinion set forth below.
On the basis of the foregoing and in reliance thereon, and assuming
that the Debentures issued to the Transferee in connection with the Transfer
each contain a legend stating that the Debentures have not been registered under
the Securities Act of 1933, as amended (the "Act"), and may not be sold or
transferred in the absence of registration or an exemption therefrom under said
Act, we are of the opinion that the Transfer does not require registration under
the Act and the Indenture pursuant to which the Debentures have been issued is
not required to be qualified under the Trust Indenture Act of 1939, as amended.
Our opinion herein is limited to United States federal law and the blue
sky laws of [ ] and we assume no responsibility as to the applicability thereto,
or the effect thereon, of the laws of any other jurisdiction. This opinion is
furnished by us solely for your benefit, and is not to be otherwise used,
circulated or relied upon without our express written consent.
Very truly yours,
CROSS-REFERENCE TABLE
HUBCO, INC.
Trust Indenture
Act Section Indenture
----------------- ---------
ss.310(a)(1) 6.10
(a)(2) 6.10
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 6.8; 6.10; 9.10
(c) Not Applicable
ss.311(a) 6.11
(b) 6.11
(c) Not Applicable
ss.312(a) 2.5
(b) 10.3
(c) 10.3
ss.313(a) 6.6
(b)(1) Not Applicable
(b)(2) 6.6
(c) 6.6; 10.2
(d) 6.6
ss.314(a) 3.9; 10.2
(b) Not Applicable
(c)(1) 10.4
(c)(2) 10.4
(c)(3) Not Applicable
(d) Not Applicable
(e) 10.5
(f) 3.8
ss.315(a) 6.1(b)
(b) 6.5
(c) 6.1
(d) 6.1
(e) 5.11
ss.316(a)(last sentence) 2.8
(a)(l)(A) 5.5
(a)(l)(B) 5.4
(a)(2) Not Applicable
(b) 5.7
ss.317(a)(1) 5.6
(a)(2) 5.6
(b) 2.4
ss.318(a) 10.1
-----------
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
