EXHIBIT 4.4
------------------------------------
NATIONAL CITY BANCSHARES, INC.
AND
WILMINGTON TRUST COMPANY,
AS TRUSTEE
INDENTURE
% SUBORDINATED DEBENTURES
------------------------------------
___________, 1998
TABLE OF CONTENTS
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.1 DEFINITIONS OF TERMS. . . . . . . . . . . . . . . . . . . . . . . . 7
2. ISSUE, DESCRIPTION, TERMS, CONDITIONS, REGISTRATION AND EXCHANGE OF
THE DEBENTURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
2.1 DESIGNATION, PRINCIPAL AMOUNT, AND MATURITY . . . . . . . . . . . .15
2.2 EXTENDED MATURITY DATE. . . . . . . . . . . . . . . . . . . . . . .15
2.3 FORM AND PAYMENT. . . . . . . . . . . . . . . . . . . . . . . . . .16
2.4 GLOBAL DEBENTURE. . . . . . . . . . . . . . . . . . . . . . . . . .16
2.5 INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
2.6 EXECUTION AND AUTHENTICATION. . . . . . . . . . . . . . . . . . . .18
2.7 REGISTRATION OF TRANSFER AND EXCHANGE . . . . . . . . . . . . . . .19
2.8 TEMPORARY SECURITIES. . . . . . . . . . . . . . . . . . . . . . . .20
2.9 MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES . . . . . . . . . .21
2.10 CANCELLATION. . . . . . . . . . . . . . . . . . . . . . . . . . . .22
2.11 BENEFIT OF INDENTURE. . . . . . . . . . . . . . . . . . . . . . . .22
2.12 AUTHENTICATING AGENT. . . . . . . . . . . . . . . . . . . . . . . .22
3. REDEMPTION OF DEBENTURES. . . . . . . . . . . . . . . . . . . . . . . . .23
3.1 REDEMPTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
3.2 SPECIAL EVENT REDEMPTION. . . . . . . . . . . . . . . . . . . . . .23
3.3 OPTIONAL REDEMPTION BY COMPANY. . . . . . . . . . . . . . . . . . .23
3.4 NOTICE OF REDEMPTION. . . . . . . . . . . . . . . . . . . . . . . .24
3.5 PAYMENT UPON REDEMPTION . . . . . . . . . . . . . . . . . . . . . .25
3.6 NO SINKING FUND . . . . . . . . . . . . . . . . . . . . . . . . . .26
4. EXTENSION OF INTEREST PAYMENT PERIOD. . . . . . . . . . . . . . . . . . .26
4.1 EXTENSION OF INTEREST PAYMENT PERIOD. . . . . . . . . . . . . . . .26
4.2 NOTICE OF EXTENSION . . . . . . . . . . . . . . . . . . . . . . . .27
4.3 LIMITATION OF TRANSACTIONS. . . . . . . . . . . . . . . . . . . . .27
5. PARTICULAR COVENANTS OF THE COMPANY . . . . . . . . . . . . . . . . . . .28
5.1 PAYMENT OF PRINCIPAL AND INTEREST . . . . . . . . . . . . . . . . .28
5.2 MAINTENANCE OF AGENCY . . . . . . . . . . . . . . . . . . . . . . .28
5.3 PAYING AGENTS . . . . . . . . . . . . . . . . . . . . . . . . . . .28
5.4 APPOINTMENT TO FILL VACANCY IN OFFICE OF TRUSTEE. . . . . . . . . .29
5.5 COMPLIANCE WITH CONSOLIDATION PROVISIONS. . . . . . . . . . . . . .29
5.6 LIMITATION ON DIVIDENDS . . . . . . . . . . . . . . . . . . . . . .29
5.7 COVENANTS AS TO NCBE TRUST. . . . . . . . . . . . . . . . . . . . .30
6. SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE . . . .30
6.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
SECURITYHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . .30
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6.2 PRESERVATION OF INFORMATION; COMMUNICATIONS WITH
SECURITYHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . .31
6.3 REPORTS BY THE COMPANY. . . . . . . . . . . . . . . . . . . . . . .31
6.4 REPORTS BY THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . .32
7. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT . . . . .32
7.1 EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . .32
7.2 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE . .34
7.3 APPLICATION OF MONEY COLLECTED. . . . . . . . . . . . . . . . . . .36
7.4 LIMITATION ON SUITS . . . . . . . . . . . . . . . . . . . . . . . .37
7.5 RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER. . . .38
7.6 CONTROL BY SECURITYHOLDERS; WAIVER OF DEFAULTS. . . . . . . . . . .38
7.7 UNDERTAKING TO PAY COSTS. . . . . . . . . . . . . . . . . . . . . .39
8. FORM OF DEBENTURE AND ORIGINAL ISSUE. . . . . . . . . . . . . . . . . . .39
8.1 FORM OF DEBENTURE . . . . . . . . . . . . . . . . . . . . . . . . .39
8.2 ORIGINAL ISSUE OF DEBENTURES. . . . . . . . . . . . . . . . . . . .39
9. CONCERNING THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . .39
9.1 CERTAIN DUTIES AND RESPONSIBILITIES OF TRUSTEE. . . . . . . . . . .39
9.2 NOTICE OF DEFAULTS. . . . . . . . . . . . . . . . . . . . . . . . .41
9.3 CERTAIN RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . . . . . . .41
9.4 TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OR SECURITIES. . .43
9.5 MAY HOLD SECURITIES . . . . . . . . . . . . . . . . . . . . . . . .43
9.6 MONIES HELD IN TRUST. . . . . . . . . . . . . . . . . . . . . . . .43
9.7 COMPENSATION AND REIMBURSEMENT. . . . . . . . . . . . . . . . . . .43
9.8 RELIANCE ON OFFICERS' CERTIFICATION . . . . . . . . . . . . . . . .44
9.9 DISQUALIFICATION: CONFLICTING INTERESTS. . . . . . . . . . . . . .44
9.10 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY . . . . . . . . . . . . . .44
9.11 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR . . . . . . . . .45
9.12 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. . . . . . . . . . . . . . .46
9.13 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS . . . .47
9.14 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY . . . . . . .47
10. CONCERNING THE SECURITYHOLDERS. . . . . . . . . . . . . . . . . . . . . .47
10.1 EVIDENCE OF ACTION BY SECURITYHOLDERS . . . . . . . . . . . . . . .47
10.2 PROOF OF EXECUTION BY SECURITYHOLDERS . . . . . . . . . . . . . . .48
10.3 WHO MAY BE DEEMED OWNERS. . . . . . . . . . . . . . . . . . . . . .48
10.4 CERTAIN SECURITIES OWNED BY COMPANY DISREGARDED . . . . . . . . . .48
10.5 ACTIONS BINDING ON FUTURE SECURITYHOLDERS . . . . . . . . . . . . .49
11. SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . .49
11.1 SUPPLEMENTAL INDENTURES WITHOUT THE CONSENT OF SECURITY HOLDERS . .49
11.2 SUPPLEMENT INDENTURES WITH CONSENT OF SECURITYHOLDERS . . . . . . .50
11.3 EFFECT OF SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . .51
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11.4 SECURITIES AFFECTED BY SUPPLEMENTAL INDENTURES. . . . . . . . . . .51
11.5 EXECUTION OF SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . . . .51
12. SUCCESSOR CORPORATION . . . . . . . . . . . . . . . . . . . . . . . . . .52
12.1 COMPANY MAY CONSOLIDATE, ETC. . . . . . . . . . . . . . . . . . . .52
12.2 SUCCESSOR CORPORATION SUBSTITUTED . . . . . . . . . . . . . . . . .52
12.3 EVIDENCE OF CONSOLIDATION, ETC. TO TRUSTEE. . . . . . . . . . . . .53
13. SATISFACTION AND DISCHARGE. . . . . . . . . . . . . . . . . . . . . . . .53
13.1 SATISFACTION AND DISCHARGE OF INDENTURE . . . . . . . . . . . . . .53
13.2 DEPOSITED MONEY TO BE HELD IN TRUST . . . . . . . . . . . . . . . .54
13.3 PAYMENT OF MONIES HELD BY PAYING AGENTS . . . . . . . . . . . . . .54
13.4 REPAYMENT TO COMPANY. . . . . . . . . . . . . . . . . . . . . . . .54
14. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS . . . . .54
14.1 NO RECOURSE . . . . . . . . . . . . . . . . . . . . . . . . . . . .54
15. MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . .55
15.1 EFFECT ON SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . .55
15.2 ACTIONS BY SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . .55
15.3 SURRENDER OF COMPANY POWERS . . . . . . . . . . . . . . . . . . . .55
15.4 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55
15.5 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . .55
15.6 TREATMENT OF DEBENTURES AS DEBT . . . . . . . . . . . . . . . . . .55
15.7 COMPLIANCE CERTIFICATES AND OPINIONS. . . . . . . . . . . . . . . .55
15.8 PAYMENTS ON BUSINESS DAYS . . . . . . . . . . . . . . . . . . . . .56
15.9 CONFLICT WITH TRUST INDENTURE ACT . . . . . . . . . . . . . . . . .56
15.10 COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . . .56
15.11 SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . .56
15.12 ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . .56
15.13 ACKNOWLEDGMENT OF RIGHTS. . . . . . . . . . . . . . . . . . . . . .57
16. SUBORDINATION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . .57
16.1 AGREEMENT TO SUBORDINATE. . . . . . . . . . . . . . . . . . . . . .57
16.2 DEFAULT ON SENIOR DEBT OR ADDITIONAL SENIOR OBLIGATIONS . . . . . .57
16.3 LIQUIDATION; DISSOLUTION; BANKRUPTCY. . . . . . . . . . . . . . . .58
16.4 SUBROGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . .59
16.5 TRUSTEE TO EFFECTUATE SUBORDINATION . . . . . . . . . . . . . . . .60
16.6 NOTICE BY THE COMPANY . . . . . . . . . . . . . . . . . . . . . . .61
16.7 RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR INDEBTEDNESS . . . . . . .61
16.8 SUBORDINATION MAY NOT BE IMPAIRED . . . . . . . . . . . . . . . . .62
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EXHIBITS
Description Exhibit
Form of Face of Debenture. . . . . . . . . . . . . . . . . . . . . . . . . . .A
Certificate of Authentication. . . . . . . . . . . . . . . . . . . . . . . . .B
Subordinated Debenture . . . . . . . . . . . . . . . . . . . . . . . . . . . .C
TRUST INDENTURE ACT
CROSS-REFERENCE TABLE
Caption
Section of Trust Indenture
Acts of 1939, Amended Section of Indenture
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9.1
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9.9, 9.10
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.14
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.14
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.1, 6.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2(c)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4(a)
313(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4(a), 6.4(b)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4(c)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6.3
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.7
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15.7(b)
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6, 9.1(b), 9.3
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9.2
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9.1
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1(b)
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.7
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6, 9.1(b), 9.3
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.4
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.1
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.2
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5.3
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.9
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INDENTURE
This Indenture is entered into and effective as of ___________,
1998, by and between National City Bancshares, Inc. ("Company"), an Indiana
corporation, and Wilmington Trust Company, a Delaware banking corporation, as
trustee ("Trustee"), Wilmington, Delaware.
RECITALS:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of a new series of its securities to be known as its ____%
Subordinated Debentures due 2028 (hereinafter referred to as the
"Debentures"), the form and substance of such Debentures and the terms,
provisions and conditions thereof to be set forth as provided in this
Indenture;
WHEREAS, NCBE Capital Trust I, a Delaware statutory business trust
("NCBE Trust"), has offered to the public $_______________ aggregate
liquidation amount of its ____% Cumulative Trust Preferred Securities (the
"Preferred Securities"), representing undivided beneficial interests in the
assets of NCBE Trust and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by NCBE Trust to the
Company of $__________ aggregate liquidation amount of its ____% Trust Common
Securities, in $___________ aggregate principal amount of the Debentures;
WHEREAS, the Company has requested that the Trustee execute and
deliver this Indenture;
WHEREAS, all requirements necessary to make this Indenture a valid
instrument in accordance with its terms, and to make the Debentures, when
executed by the Company and authenticated and delivered by the Trustee, the
valid obligations of the Company, have been performed, and the execution and
delivery of this Indenture has been duly authorized in all respects;
WHEREAS, to provide the terms and conditions upon which the
Debentures are to be authenticated, issued and delivered, the Company has
duly authorized the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the purchase
of the Debentures by the holders thereof, it is mutually covenanted and
agreed as follows for the equal and ratable benefit of the holders of the
Debentures:
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1. DEFINITIONS.
1.1 DEFINITIONS OF TERMS. The terms defined in this Section
1.1 (except as in this Indenture otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in
this Section and shall include the plurals as well as the singular. All other
terms used in this Indenture that are defined in the Trust Indenture Act of
1939, as amended, or that are by reference in such Act defined in the
Securities Act of 1933, as amended (except as herein otherwise expressly
provided or unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act
as in force at the date of the execution of this instrument. All accounting
terms used herein and not expressly defined shall have the meanings assigned
to such terms in accordance with generally accepted accounting principles.
(a) "Additional Sums" shall have the meaning set forth in
Section 2.5.
(b) "Additional Senior Obligations" means all indebtedness of
the Company whether incurred on or prior to the date of this Indenture
or thereafter incurred, for claims in respect of derivative products
such as interest and foreign exchange rate contracts, commodity
contracts and similar arrangements; provided, however, that Additional
Senior Obligations do not include claims in respect of Senior Debt or
obligations which, by their terms, are expressly stated to be not
superior in right of payment to the Debentures or to rank pari passu
in right of payment with the Debentures. For purposes of this
definition, "claim" shall have the meaning assigned thereto in Section
101(4) of the United States Bankruptcy Code of 1978, as amended.
(c) "Administrative Trustee" shall have the meaning set forth in
the Trust Agreement.
(d) "Affiliate" means, with respect to a specified Person, (i)
any Person directly or indirectly owning, controlling or holding with
power to vote 10% or more of the outstanding voting securities or
other ownership interests of the specified Person, (ii) any Person 10%
or more of whose outstanding voting securities or other ownership
interests are directly or indirectly owned, controlled or held with
power to vote by the specified Person, (iii) any Person directly or
indirectly controlling, controlled by, or under common control with
the specified Person, (iv) a partnership in which the specified Person
is a general partner, (v) any officer or director of the specified
Person, and (vi) if the specified Person is an individual, any entity
of which the specified Person is an officer, director or general
partner.
(e) "Authenticating Agent" means an authenticating agent with
respect to the Securities appointed by the Trustee pursuant to Section
2.12.
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(f) "Bankruptcy Law" means Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
(g) "Board of Directors" means the Board of Directors of the
Company or any duly authorized committee of such Board.
(h) "Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification.
(i) "Business Day" means, a day other than (i) a Saturday or
Sunday, (ii) a day on which banking institutions in the City of
New York are authorized or required by law or executive order to
remain closed or (iii) a day on which the Trustee's (or Property
Trustee's) Corporate Trust Office is closed for business.
(j) "Capital Event" means that NCBE Trust has received an
opinion of counsel experienced in such matters (which may be counsel
to the Company) that the Company cannot or, within 90 days of such
opinion, will not be permitted by the applicable regulatory
authorities, due to a change in law, regulation, policy or guideline
or a change in interpretation or application of law, regulation,
policy or guideline, to account for the Preferred Securities as Tier 1
Capital under the capital guidelines or policies of the Federal
Reserve.
(k) "Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act, or,
if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such
time.
(l) "Common Securities" means undivided beneficial interests in
the assets of NCBE Trust which rank pari passu with Preferred
Securities issued by NCBE Trust; provided, however, that upon the
occurrence of an Event of Default, the rights of holders of Common
Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights
of holders of Preferred Securities.
(m) "Company" means National City Bancshares, Inc., a
corporation duly organized and existing under the laws of the State of
Indiana, and, subject to the provisions of Article 12, shall also
include its successors and assigns.
(n) "Compounded Interest" shall have the meaning set forth in
Section 4.1.
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(o) "Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is located
at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000, Attention: Corporate Trust Administration.
(p) "Coupon Rate" shall have the meaning set forth in
Section 2.5.
(q) "Custodian" means any receiver, trustee, assignee,
liquidator, or similar official under any Bankruptcy Law.
(r) "Debentures" shall have the meaning set forth in the
Recitals hereto.
(s) "Debt" means with respect to any Person, whether recourse is
to all or a portion of the assets of such Person and whether or not
contingent, (i) every obligation of such Person for money borrowed;
(ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in
connection with the acquisition of property, assets or businesses;
(iii) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person
issued or assumed as the deferred purchase price of property or
services (but excluding trade accounts payable or accrued liabilities
arising in the ordinary course of business); (v) every capital lease
obligation of such Person; and (vi) every obligation of the type
referred to in clauses (i) through (v) of another Person and all
dividends of another Person the payment of which, in either case, such
Person has guaranteed or is responsible or liable, directly or
indirectly, as obligor or otherwise.
(t) "Default" means any event, act or condition that with notice
or lapse of time, or both, would constitute an Event of Default.
(u) "Deferred Interest" shall have the meaning set forth in
Section 4.1.
(v) "Depositary" means, with respect to any Security issuable or
issued in the form of one or more Global Securities, The Depository
Trust Company, New York, New York, another clearing agency, or any
successor registered as a clearing agency under the Exchange Act, or
other applicable statute or regulation, which, in each case, shall be
designated by the Company pursuant to this Indenture.
(w) "Dissolution Event" means that NCBE Trust is to be
liquidated in accordance with the Trust Agreement and the Debentures
held by the Property Trustee are to be distributed to the holders of
the Trust Securities in accordance with the Trust Agreement.
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(x) "Event of Default" shall have the meaning set forth in
Section 7.1.
(y) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(z) "Extended Interest Payment Period" shall have the meaning
set forth in Section 4.1.
(aa) "Extended Maturity Date" means, if the Company elects to
extend the Maturity Date in accordance with Section 2.2(b), the date
selected by the Company which is after the Scheduled Maturity Date but
on or before March 31, 2037.
(bb) "Federal Reserve" means the Board of Governors of the
Federal Reserve System.
(cc) "Global Security" or "Global Debenture" means, with respect
to the Securities, a Security executed by the Company and delivered by
the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with the Indenture, which shall be
registered in the name of the Depositary or its nominee.
(dd) "Governmental Obligations" means securities that are
(i) direct obligations of the United States of America for the payment
of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America, the payment of which
is unconditionally guaranteed as a full faith and credit obligation by
the United States of America that, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include
a depositary receipt issued by a bank (as defined in Section 3(a)(2)
of the Securities Act of 1933, as amended) as custodian with respect
to any such Governmental Obligation or a specific payment of principal
of or interest on any such Governmental Obligation held by such
custodian for the account of the holder of such depositary receipt;
provided, however, that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific
payment of principal of or interest on the Governmental Obligation
evidenced by such depositary receipt.
(ee) "Herein," "hereof," and "hereunder," and other words of
similar import, refer to this Indenture as a whole and not to any
particular Section or other subdivision.
(ff) "Holder" means a Person in whose name a Security is
registered in the Security Register.
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(gg) "Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into in accordance with the
terms hereof.
(hh) "Interest Payment Date," has the meaning set forth in
Section 2.5.
(ii) "Investment Company Event" means the receipt by NCBE Trust
of an Opinion of Counsel, rendered by a law firm experienced in such
matters, to the effect that, as a result of the occurrence of a change
in law or regulation or a change in interpretation or application of
law or regulation by any legislative body, court, governmental agency
or regulatory authority (a "Change in 1940 Act Law"), there is more
than an insubstantial risk that NCBE Trust is or will be considered an
"investment company" that is required to be registered under the
Investment Company Act of 1940, as amended, which Change in 1940 Act
Law becomes effective on or after the date of original issuance of the
Preferred Securities.
(jj) "Maturity Date", when used with respect to any Security,
means the date on which the principal of such Security becomes due and
payable as therein or herein provided, whether at the Scheduled
Maturity Date or the Extended Maturity Date or by declaration of
acceleration, notice of redemption or otherwise, and includes the
Redemption Date.
(kk) "NCBE Trust" means NCBE Capital Trust I, a Delaware business
trust created for the purposes set forth in the Trust Agreement.
(ll) "Non Book-Entry Preferred Securities" shall have the meaning
set forth in Section 2.4.
(mm) "Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President of the
Company and by the Treasurer, an Assistant Treasurer, the Controller,
an Assistant Controller, the Secretary or an Assistant Secretary of
the Company, that is delivered to the Trustee in accordance with the
terms hereof. Each such certificate shall include the statements
provided for in Section 15.7, if and to the extent required by the
provisions thereof.
(nn) "Opinion of Counsel" means an opinion in writing of legal
counsel, who may not be an employee of the Company but may be counsel
to the Company, that is delivered to the Trustee in accordance with
the terms hereof. Each such opinion shall include the statements
provided for in Section 15.7, if and to the extent required by the
provisions thereof.
(oo) "Outstanding," when used with reference to the Securities,
means, subject to the provisions of Section 10.4, as of any particular
time, all Securities theretofore authenticated and delivered by the
Trustee under this Indenture, except
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(i) Securities theretofore canceled by the Trustee or any Paying Agent,
or delivered to the Trustee or any Paying Agent for cancellation or that
have previously been canceled; (ii) Securities or portions thereof for
the payment or redemption of which moneys or Governmental Obligations in
the necessary amount shall have been deposited in trust with the Trustee
or with any paying agent (other than the Company) or shall have been
set aside and segregated in trust by the Company (if the Company shall
act as its own Paying Agent); provided, however, that if such
Securities or portions of such Securities are to be redeemed prior to
the Scheduled Maturity Date thereof, notice of such redemption shall
have been given as provided in Article 3, or provision satisfactory to
the Trustee shall have been made for giving such notice; and
(iii) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.9.
(pp) "Paying Agent" means the Company or any Person authorized by
the Company to pay the principal of and any premium or interest on, or
any Additional Sums with respect to, any Security on behalf of the
Company.
(qq) "Person" means any individual, corporation, limited
liability company, partnership, joint-venture, joint-stock company,
unincorporated organization or government or any agency or political
subdivision thereof.
(rr) "Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same debt
as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under
Section 2.9 in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same debt as the lost, destroyed or stolen
Security.
(ss) "Preferred Securities" means undivided beneficial interests
in the assets of NCBE Trust which rank pari passu with Common
Securities issued by NCBE Trust; provided, however, that upon the
occurrence of an Event of Default, the rights of holders of Common
Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights
of holders of Preferred Securities.
(tt) "Preferred Securities Guarantee" means any guarantee that
the Company may enter into with Wilmington Trust Company or other
Persons that operate directly or indirectly for the benefit of holders
of Preferred Securities.
(uu) "Property Trustee" has the meaning set forth in the Trust
Agreement.
(vv) "Redemption Date," when used with respect to any Security or
portion thereof to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
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(ww) "Redemption Price" shall have the meaning set forth in
Section 3.2.
(xx) "Regular Record Date" for the interest payable on any
Interest Payment Date means the fifteenth day of the month in which
such Interest Payment Date occurs, whether or not a Business Day.
(yy) "Responsible Officer" when used with respect to the Trustee
means the Chairman of the Board of Directors, the President, any Vice
President, the Secretary, the Treasurer, any trust officer, any
corporate trust officer or any other officer or assistant officer of
the Trustee customarily performing functions similar to those
performed by the Persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular
subject.
(zz) "Scheduled Maturity Date" means March 31, 2028.
(aaa) "Securities" means any Debentures.
(bbb) "Security Register" shall have the meaning set forth in
Section 2.7.
(ccc) "Security Registrar" shall have the meaning set forth in
Section 2.7.
(ddd) "Securityholder," "holder of securities," "holder of
Debentures," "registered holder," or other similar term, means a
Holder.
(eee) "Senior Debt" means the principal of (and premium, if any)
and interest, if any (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization relating to
the Company whether or not such claim for post-petition interest is
allowed in such proceeding), on Debt, whether incurred on or prior to
the date of this Indenture or thereafter incurred, unless, in the
instrument creating or evidencing the same or pursuant to which the
same is outstanding, it is provided that such obligations are not
superior in right of payment to the Debentures or to other Debt which
is pari passu with, or subordinated to, the Debentures; provided,
however, that Senior Debt shall not be deemed to include (i) any Debt
of the Company which when incurred and without respect to any election
under Section 1111(b) of the United States Bankruptcy Code of 1978, as
amended, was without recourse to the Company, (ii) any Debt of the
Company to any of its Subsidiaries, (iii) Debt to any employee of the
Company, and (iv) Debt which by its terms is subordinated to trade
accounts payable or accrued liabilities arising in the ordinary course
of business (collectively, "Trade Debt") to the extent that payments
made to the holders of such Debt by the Holders as a result of the
subordination provisions of this Indenture would be greater than they
otherwise would have been as a result of any obligation of the holders
of such Debt to pay
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amounts over to the obligees on such Trade Debt as a result of the
subordination provisions to which such Debt is subject.
(fff) "Senior Indebtedness" shall have the meaning set forth in
Section 16.2.
(ggg) "Special Event" means a Tax Event, an Investment Company
Event or a Capital Event.
(hhh) "Subsidiary" means, with respect to any Person, (i) any
corporation at least a majority of whose outstanding Voting Stock
shall at the time be owned, directly or indirectly, by such Person or
by one or more of its Subsidiaries or by such Person and one or more
of its Subsidiaries, (ii) any general partnership, joint venture or
similar entity, at least a majority of whose outstanding partnership
or similar interests shall at the time be owned by such Person, or by
one or more of its Subsidiaries, or by such Person and one or more of
its Subsidiaries and (iii) any limited partnership of which such
Person or any of its Subsidiaries is a general partner.
(iii) "Tax Event" means the receipt by NCBE Trust of an Opinion
of Counsel experienced in such matters to the effect that, as a result
of any amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or
therein, or as a result of any official administrative pronouncement
or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after the date of
issuance of the Debentures, there is more than an insubstantial risk
that (1) NCBE Trust is, or will be within 90 days after the date of
such Opinion of Counsel subject to United States federal income tax
with respect to interest received or accrued on the Debentures,
(2) interest payable by the Company on the Debentures is not, or
within 90 days after the date of such Opinion of Counsel, will not be,
deductible by the Company, in whole or in part, for United States
federal income tax purposes, or (3) NCBE Trust is, or will be within
90 days after the date of such Opinion of Counsel, subject to more
than a de minimis amount of other taxes, duties, assessments or other
governmental charges.
(jjj) "Trust Agreement" means the Amended and Restated Trust
Agreement, dated __________ __, 1998, of NCBE Trust.
(kkk) "Trustee" means Wilmington Trust Company and, subject to
the provisions of Article 9, shall also include its successors and
assigns, and, if at any time there is more than one Person acting in
such capacity hereunder, "Trustee" shall mean each such Person.
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(xxx) "Xxxxx Xxxxxxxxx Xxx," means the Trust Indenture Act of
1939 as in effect at the date of execution of this instrument.
(mmm) "Trust Securities" means the Common Securities and the
Preferred Securities.
(nnn) "Voting Stock," as applied to stock of any Person, means
shares, interests, participations or other equivalents in the equity
interest (however designated) in such Person having ordinary voting
power for the election of a majority of the directors (or the
equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason
of the occurrence of a contingency.
2. ISSUE, DESCRIPTION, TERMS, CONDITIONS, REGISTRATION AND EXCHANGE
OF THE DEBENTURES.
2.1 DESIGNATION, PRINCIPAL AMOUNT, AND MATURITY. The
Securities authorized by this Indenture are designated the "____%
Subordinated Debentures due 2028" and are limited in aggregate principal
amount to $__________, which amount shall be as set forth in any written
order of the Company for the authentication and delivery of Debentures
pursuant to Section 8.2 of this Indenture. The Securities will mature and
the unpaid principal thereon shall be payable (1) at the Scheduled Maturity
Date, (2) if the Company elects to extend the Maturity Date in accordance
with Section 2.2, at the Extended Maturity Date, or (3) by declaration of
acceleration, notice of redemption, or otherwise, including a Redemption Date.
2.2 EXTENDED MATURITY DATE. The Company may, at any time
before the day which is 90 days before the Scheduled Maturity Date, elect to
extend the Maturity Date to the Extended Maturity Date, which shall be not
later than March 31, 2037, provided that the Company has received the prior
approval of the Federal Reserve (if such approval is then required under
applicable capital guidelines or policies of the Federal Reserve) and further
provided that the following conditions in this Section 2.2 are satisfied both
at the date the Company gives notice in accordance herewith of its election
to extend the Maturity Date and at the Scheduled Maturity Date:
(1) the Company is not in bankruptcy, otherwise insolvent
or in liquidation;
(2) the Company is not in default in the payment of any
interest or principal on the Debentures; and
(3) NCBE Trust is not in arrears on payments of
distributions on the Preferred Securities issued by it and no
deferred distributions have accumulated.
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If the Company elects to extend the Maturity Date in accordance herewith, the
Company shall give notice to the Holders, the Property Trustee and NCBE Trust of
the extension of the Maturity Date and the Extended Maturity Date at least 90
days and no more than 180 days before the Scheduled Maturity Date.
2.3 FORM AND PAYMENT. The Debentures shall be issued in
fully registered certificated form (initially, to the Property Trustee)
without interest coupons. Principal and interest on the Debentures issued in
certificated form shall be payable, the transfer of such Debentures shall be
registrable, and such Debentures shall be exchangeable for Debentures bearing
identical terms and provisions, at any office or agency of the Company
maintained pursuant to Section 5.2; provided, however, that payment of
interest on any Debenture may be made at the option of the Company by check
mailed to the Holder of such Debenture at such address as shall appear in the
Security Register or by wire transfer to an account maintained by such
Holder. Notwithstanding the foregoing, so long as the Holder of any
Debentures is the Property Trustee, the payment of the principal of and
interest (including Compounded Interest and Additional Sums, if any) on such
Debentures held by the Property Trustee shall be made at such place and to
such account as may be designated by the Property Trustee.
2.4 GLOBAL DEBENTURE.
(a) In connection with a Dissolution Event,
(1) the Debentures in certificated form may be presented
to the Trustee by the Property Trustee in exchange for a Global
Debenture in a like aggregate principal amount to be registered
in the name of the Depositary, or its nominee, and delivered by
the Trustee to the Depositary for crediting to the accounts of
its participants pursuant to the instructions of the
Administrative Trustees. The Company upon any such presentation
shall execute a Global Debenture in such aggregate principal
amount and deliver the same to the Trustee for authentication and
delivery in accordance with this Indenture. Payments on the
Debentures issued as a Global Debenture will be made to the
Depositary; and
(2) if any Preferred Securities are held in non book-entry
certificated form ("Non Book-Entry Preferred Securities"), the
Debentures in certificated form may be presented to the Trustee
by the Property Trustee and any certificate which represents Non
Book-Entry Preferred Securities will be deemed to represent
beneficial interests in Debentures presented to the Trustee by
the Property Trustee having an aggregate principal amount equal
to the aggregate liquidation amount of the Non Book-Entry
Preferred Securities until such certificate is presented to the
Security Registrar for transfer or reissuance, at which time such
certificate will be canceled and a Debenture, registered in the
name of the holder of such certificate (or the transferee of such
holder, as the case may be) with an aggregate principal
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amount equal to the aggregate liquidation amount of the Preferred
Security represented by such certificate, will be executed by the
Company and delivered to the Trustee for authentication and
delivery in accordance with this Indenture. On issuance of such
Debentures, Debentures with an equivalent aggregate principal
amount that were presented by the Property Trustee to the Trustee
will be deemed to have been canceled.
(b) A Global Debenture may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor
Depositary selected or approved by the Company or to a nominee of such
successor Depositary.
(c) If at any time (i) the Depositary notifies the Company that
it is unwilling or unable to continue as Depositary or the Depositary
shall no longer be registered or in good standing as a clearing agency
under the Exchange Act or other applicable statute or regulation, and
in either case a successor Depositary is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware
of such condition, as the case may be, or (ii) there shall have
occurred and be continuing an Event of Default with respect to a
Global Debenture, then the Company will execute, and the Trustee, upon
written notice from the Company, will authenticate and deliver, the
Debentures in definitive registered form without coupons, and in an
aggregate principal amount equal to the principal amount of the Global
Debenture in exchange for such Global Debenture. In addition, the
Company may at any time in its sole discretion determine that the
Debentures shall no longer be represented by a Global Debenture. In
such event the Company will execute, and the Trustee, upon receipt of
an Officer's Certificate evidencing such determination by the Company,
will authenticate and deliver, the Debentures in definitive registered
form without coupons, and in an aggregate principal amount equal to
the principal amount of the Global Debenture in exchange for such
Global Debenture. Upon the exchange of the Global Debenture for such
Debentures in definitive registered form without coupons, in
authorized denominations, the Global Debenture shall be canceled by
the Trustee. Such Debentures in definitive registered form issued in
exchange for the Global Debenture shall be registered in such names as
the Depositary shall instruct the Trustee in writing and shall be
delivered by the Trustee to the Depositary for re-delivery to the
Persons in whose names they are so registered.
2.5 INTEREST.
(a) Each Debenture shall bear interest on the principal amount
thereof at the rate of ____% per annum (the "Coupon Rate") from the
original date of issuance until the principal thereof becomes due and
payable, and on any overdue principal and (to the extent that payment
of such interest is enforceable under applicable law) on any overdue
installment of interest at the Coupon Rate, compounded quarterly,
payable (subject to the provisions of Article 4) quarterly in arrears
on March 31,
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June 30, September 30 and December 31 of each year (each, an "Interest
Payment Date") commencing on June 30, 1998, to the Person in whose name
such Debenture or any Predecessor Security is registered, at the close of
business on the Regular Record Date for such interest installment.
(b) The amount of interest payable for any period will be
computed on the basis of a 360-day year consisting of twelve 30-day
months and, for any period of less than a full calendar month, the
number of days elapsed in such month. In the event that any date on
which interest is payable on the Debentures is not a Business Day,
then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay) with the same force and
effect as if made on the date such payment was originally payable.
(c) If, at any time while the Property Trustee is the Holder of
any Debentures, NCBE Trust or the Property Trustee is required to pay
any taxes, duties, assessments or other governmental charges of
whatever nature (other than withholding taxes) imposed by the United
States or any other taxing authority, then in any such case the
Company will pay as additional interest ("Additional Sums") on the
Debentures held by the Property Trustee such additional amounts as
shall be required so that the net amounts received and retained by
NCBE Trust and the Property Trustee after paying such taxes, duties,
assessments or other governmental charges will be equal to the amounts
NCBE Trust and the Property Trustee would have received and retained
had no such taxes, duties, assessments or other governmental charges
been imposed.
2.6 EXECUTION AND AUTHENTICATION.
(a) The Debentures shall be signed on behalf of the Company by
its Chairman of the Board, President or one of its Vice Presidents,
attested by its Secretary or one of its Assistant Secretaries.
Signatures may be in the form of a manual or facsimile signature. The
Company may use the facsimile signature of any Person who shall have
been a President or Vice President thereof, or of any Person who shall
have been a Secretary or Assistant Secretary thereof, notwithstanding
the fact that at the time the Securities shall be authenticated and
delivered or disposed of such Person shall have ceased to be the
President or a Vice President, or the Secretary or an Assistant
Secretary, of the Company. The Securities may contain such notations,
legends or endorsements required by law, stock exchange rule or usage.
Each Security shall be dated the date of its authentication by the
Trustee.
(b) A Security shall not be valid until authenticated manually
by an authorized signatory of the Trustee, or by an Authenticating
Agent. Such signature shall be conclusive evidence that the Security
so authenticated has been duly
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authenticated and delivered hereunder and that the holder is entitled to
the benefits of this Indenture.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities
executed by the Company to the Trustee for authentication, together
with a written order of the Company for the authentication and
delivery of such Securities, signed by the Chairman of the Board,
President or any Vice President and its Treasurer or any Assistant
Treasurer or Secretary or Assistant Secretary, and the Trustee in
accordance with such written order shall authenticate and deliver such
Securities.
(d) In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to
Section 9.1) shall be fully protected in relying upon, an Opinion of
Counsel stating that the form and terms thereof have been established
in conformity with the provisions of this Indenture.
(e) The Trustee shall not be required to authenticate such
Securities if the issuance of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner that
is not reasonably acceptable to the Trustee.
2.7 REGISTRATION OF TRANSFER AND EXCHANGE.
(a) The Company shall keep, or cause to be kept, at an office or
agency of the Company maintained pursuant to Section 5.2, a register
(herein referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall
register the Securities and the transfers of Securities as in this
Article 2 provided and which at all reasonable times shall be open for
inspection by the Trustee. The registrar for the purpose of
registering Securities and transfers of Securities as herein provided
shall initially be the Trustee and thereafter as may be appointed by
the Company as authorized by Board Resolution (the "Security
Registrar").
(b) Securities may be exchanged upon presentation thereof at the
office of the Security Registrar, or at any office or agency of the
Company maintained pursuant to Section 5.2, for other Securities and
for a like aggregate principal amount, upon payment of a sum
sufficient to cover any tax or other governmental charge in relation
thereto, all as provided in this Section. In respect of any Securities
so surrendered for exchange, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in exchange
therefor the Security or Securities that the Securityholder making the
exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
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(c) Upon surrender for registration of transfer of any Security
at any office or agency of the Company maintained pursuant to
Section 5.2, the Company shall execute, the Trustee shall authenticate
and such office or agency shall deliver in the name of the transferee
or transferees a new Security or Securities for a like aggregate
principal amount.
(d) All Securities presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be
accompanied (if so required by the Company or the Security Registrar)
by a written instrument or instruments of transfer, in form
satisfactory to the Company or the Security Registrar, duly executed
by the Holder or by such Holder's duly authorized attorney in writing.
(e) No service charge shall be made for any exchange or
registration of transfer of Securities, or issue of new Securities in
case of partial redemption, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge in
relation thereto, other than exchanges pursuant to Section 2.8, the
second paragraph of Section 3.5 and Section 11.4 not involving any
transfer.
(f) The Company and Security Registrar shall not be required
(i) to issue, exchange or register the transfer of any Securities
during a period beginning at the opening of business 15 days before
the day of the mailing of a notice of redemption of less than all the
Outstanding Securities and ending at the close of business on the day
of such mailing, nor (ii) to register the transfer of or exchange any
Securities selected for redemption in whole or in part, except in the
case of any Security to be redeemed in part, the portion thereof not
to be redeemed. The provisions of this Section 2.7 are, with respect
to any Global Security, subject to Section 2.4 hereof.
2.8 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities, the Company may execute, and the Trustee shall
authenticate and deliver, temporary Securities (printed, lithographed, or
typewritten). Such temporary Securities shall be substantially in the form of
the definitive Securities in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every 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 unnecessary delay the Company will execute
and will furnish definitive Securities and thereupon any or all temporary
Securities may be surrendered in exchange therefor (without charge to the
Holders), at the office of the Security Registrar and the Trustee shall
authenticate and such office or agency shall deliver in exchange for such
temporary Securities an equal aggregate principal amount of definitive
Securities, unless the Company advises the Trustee to the effect that definitive
Securities need not be executed and furnished until further notice from the
Company. Until so exchanged, the temporary Securities shall be entitled to the
same benefits under this Indenture as definitive Securities authenticated and
delivered hereunder.
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2.9 MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES.
(a) In case any temporary or definitive Security shall become
mutilated or be destroyed, lost or stolen, then, in the absence of
notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company (subject to the next
succeeding sentence) shall execute, and upon the Company's request the
Trustee (subject as aforesaid) shall authenticate and deliver, a new
Security, bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated Security, or in lieu of
and in substitution for the Security so destroyed, lost or stolen. In
every case the applicant for a substitute Security shall furnish to
the Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the
Company and the Trustee evidence to their satisfaction of the
destruction, loss or theft of the applicant's Security and of the
ownership thereof. The Trustee may authenticate any such substitute
Security and deliver the same upon the written request or
authorization of the Company executed by its Chairman of the Board,
the President or any Vice President and by its Treasurer or any
assistant Treasurer or Secretary or Assistant Secretary. Upon the
issuance of any substitute Security, the Company may require the
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or is about to mature shall
become mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substitute Security, pay or authorize the payment
of the same (without surrender thereof except in the case of a
mutilated Security) if the applicant for such payment shall furnish to
the Company and the Trustee such security or indemnity as they may
require to save them harmless, and, in case of destruction, loss or
theft, evidence to the satisfaction of the Company and the Trustee of
the destruction, loss or theft of such Security and of the ownership
thereof.
(b) Every replacement Security issued pursuant to the provisions
of this Section shall constitute an additional contractual obligation
of the Company whether or not the mutilated, destroyed, lost or stolen
Security shall be found at any time, or be enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued
hereunder. All Securities shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to
the replacement or payment of mutilated, destroyed, lost or stolen
Securities, and shall preclude (to the extent lawful) any and all
other rights or remedies, notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement
or payment of negotiable instruments or other securities without their
surrender.
2.10 CANCELLATION. All Securities surrendered for the purpose
of payment, redemption, exchange or registration of transfer shall, if
surrendered to the Company or any Paying
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Agent, be delivered to the Trustee for cancellation, or, if surrendered to
the Trustee, shall be canceled by it, and no Securities shall be issued in
lieu thereof except as expressly required or permitted by any of the
provisions of this Indenture. On request of the Company at the time of such
surrender, the Trustee shall deliver to the Company canceled Securities held
by the Trustee. In the absence of such request the Trustee may dispose of
canceled Securities in accordance with its standard procedures and deliver a
certificate of disposition to the Company. If the Company shall otherwise
acquire any of the Securities, however, such acquisition shall not operate as
a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are delivered to the Trustee for
cancellation.
2.11 BENEFIT OF INDENTURE. Nothing in this Indenture or in the
Securities, express or implied, shall give or be construed to give to any
Person, other than the parties hereto, the Holders, the Property Trustee and the
holders of Preferred Securities as provided herein (and, with respect to the
provisions of Article 16, the holders of Senior Indebtedness) any legal or
equitable right, remedy or claim under or in respect of this Indenture, or under
any covenant, condition or provision herein contained; all such covenants,
conditions and provisions being for the sole benefit of the parties hereto and
of the Holders, the Property Trustee and the holders of Preferred Securities as
provided herein (and, with respect to the provisions of Article 16, the holders
of Senior Indebtedness).
2.12 AUTHENTICATING AGENT.
(a) So long as any of the Securities remain Outstanding there
may be an Authenticating Agent for the Securities which the Trustee
shall have the right to appoint. Said Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate the
Securities issued upon exchange, transfer or partial redemption
thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. All references
in this Indenture to the authentication of Securities by the Trustee
shall be deemed to include authentication by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall
be a corporation that has a combined capital and surplus, as most
recently reported or determined by it, sufficient under the laws of
any jurisdiction under which it is organized or in which it is doing
business to conduct a trust business, and that is otherwise authorized
under such laws to conduct such business and is subject to supervision
or examination by Federal or State authorities. If at any time any
Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately.
(b) Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company. The
Trustee may at any time (and upon request by the Company shall)
terminate the agency of any Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company.
Upon resignation, termination or cessation of eligibility of any
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Authenticating Agent, the Trustee may appoint an eligible successor
Authenticating Agent acceptable to the Company. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its
predecessor hereunder as if originally named as an Authenticating
Agent pursuant hereto.
3. REDEMPTION OF DEBENTURES.
3.1 REDEMPTION. Subject to the Company's having received prior
approval of the Federal Reserve, if such approval is then required under the
applicable capital guidelines or policies of the Federal Reserve, the Company
may redeem the Debentures issued hereunder on and after the dates and in
accordance with the terms established pursuant to this Article 3.
3.2 SPECIAL EVENT REDEMPTION. Subject to the Company's
having received the prior approval of the Federal Reserve, if such approval
is then required under the applicable capital guidelines or policies of the
Federal Reserve, if a Special Event has occurred and is continuing, then the
Company shall have the right, upon not less than 30 days' nor more than 60
days' prior written notice to the Holders, to redeem the Debentures, in whole
but not in part, within 180 days following the occurrence of such Special
Event (the "180-Day Period") for cash in an amount equal to 100% of the
principal amount to be redeemed plus any accrued and unpaid interest thereon
to the date of such redemption (the "Redemption Price"), provided that if the
Special Event is a Tax Event and if there is available to the Company the
opportunity to eliminate, within the 180-Day Period, the Tax Event by taking
some ministerial action ("Ministerial Action"), such as filing a form or
making an election, or pursuing some other similar reasonable measure which
has no adverse effect on the Company, the Holders, NCBE Trust or the holders
of Trust Securities, the Company shall pursue such Ministerial Action during
the 180-day period in lieu of redemption, and, provided, further, that the
Company shall have no right during the 180-day period to redeem the
Debentures while NCBE Trust is pursuing any Ministerial Action pursuant to
its obligations under the Trust Agreement, if any. If the Company pursues
any Ministerial Action as above provided, then the time period in which the
Company may elect to redeem the Debentures pursuant to this Section 3.2 shall
be extended by an additional period of 180 days. The Redemption Price shall
be paid prior to 12:00 noon, New York time, on the Redemption Date or such
earlier time as the Company determines, provided that the Company shall
deposit with the Trustee an amount sufficient to pay the Redemption Price by
10:00 a.m., New York time, on the Redemption Date.
3.3 OPTIONAL REDEMPTION BY COMPANY.
(a) Subject to the provisions of Section 3.3(b), except as
otherwise may be specified in this Indenture, the Company shall have
the right to redeem the Debentures, in whole or in part, from time to
time, on or after March 31, 2003, at the Redemption Price. Any
redemption pursuant to this paragraph will be made upon not less than
30 days' nor more than 60 days' prior written notice to the Holders of
the Debentures to be redeemed. If the Debentures are only partially
redeemed
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pursuant to this Section 3.3, the Debentures will be redeemed pro rata or
by lot or by any other manner the Trustee shall deem appropriate in its
discretion; provided, that if at the time of redemption the Debentures are
registered as a Global Debenture, the Depositary shall determine, in
accordance with its procedures, the principal amount of such Debentures
held by each Holder of Debentures to be redeemed. The Redemption Price
shall be paid prior to 12:00 noon, New York time, on the Redemption Date
or at such earlier time as the Company determines provided that the
Company shall deposit with the Trustee an amount sufficient to pay the
Redemption Price by 10:00 a.m., New York time, on the Redemption Date.
(b) If a partial redemption of the Debentures would result in
the delisting of the Preferred Securities from the Nasdaq National
Market or any national securities exchange or other organization on
which the Preferred Securities are then approved for quotation or
listed, the Company shall not be permitted to effect such partial
redemption and may only redeem the Debentures in whole.
3.4 NOTICE OF REDEMPTION.
(a) In case the Company shall desire to exercise such right to
redeem all or, as the case may be, a portion of the Debentures in
accordance with the right reserved so to do, the Company shall, or
shall cause the Trustee to upon receipt of not less than 45 days'
prior written notice from the Company (which notice shall, in the
event of a partial redemption, include a representation to the effect
that such partial redemption will not result in the delisting of the
Preferred Securities as described in Section 3.3(b) above), give
notice of such redemption to Holders of the Debentures to be redeemed
by mailing, by first class mail, postage prepaid, a notice of such
redemption not less than 30 days and not more than 60 days before the
Redemption Date to such Holders at their addresses as they shall
appear upon the Security Register unless a shorter period is specified
in the Debentures to be redeemed. Any notice that is mailed in the
manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder receives the notice. In any
case, failure duly to give such notice to the Holder of any Security
designated for redemption in whole or in part, or any defect in the
notice, shall not affect the validity of the proceedings for the
redemption of any other Debentures. In the case of any redemption of
Debentures prior to the expiration of any restriction on such
redemption provided in the terms of such Debentures or elsewhere in
this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with any such restriction.
(b) Each such notice of redemption shall specify the Redemption
Date and the Redemption Price, and shall state that payment of the
Redemption Price will be made at the office or agency of the Company
or at the office of the Security Registrar upon presentation and
surrender of such Debentures, that interest accrued to the Redemption
Date will be paid as specified in said notice, and that from and
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after said Redemption Date interest will cease to accrue. If less than all
the Debentures are to be redeemed, the notice shall specify the
particular Debentures to be so redeemed. In case any Security is to be
redeemed in part only, the notice that relates to such Security shall
state the portion of the principal amount thereof to be redeemed, and
shall state that on and after the Redemption Date, upon surrender of
such Security, a new Security in principal amount equal to the
unredeemed portion thereof will be issued, without charge, to the
Holder of such Security.
(c) If less than all the Debentures are to be redeemed, the
Company shall give the Trustee at least 45 days' notice in advance of
the Redemption Date as to the aggregate principal amount of the
Debentures to be redeemed, and thereupon the Trustee shall select, by
lot or in such other manner as it shall deem appropriate and fair in
its discretion and that may provide for the selection of a portion or
portions (equal to twenty-five U.S. dollars ($25) or any integral
multiple thereof) of the principal amount of such Debentures of a
denomination larger than $25, the Debentures to be redeemed and shall
thereafter promptly notify the Company in writing of the numbers of
the Debentures to be redeemed, in whole or in part.
(d) The Company may, if and whenever it shall so elect, by
delivery of instructions signed on its behalf by its Chairman of the
Board, President or any Vice President, instruct the Trustee or any
Paying Agent to call all or any part of the Debentures for redemption
and to give notice of redemption in the manner set forth in this
Section, such notice to be in the name of the Company or its own name
as the Trustee or such Paying Agent may deem advisable. In any case in
which notice of redemption is to be given by the Trustee or any such
Paying Agent, the Company shall deliver or cause to be delivered to,
or permit to remain with, the Trustee or such Paying Agent, as the
case may be, such Security Register, transfer books or other records,
or suitable copies or extracts therefrom, sufficient to enable the
Trustee or such Paying Agent to give any notice by mail that may be
required under the provisions of this Article.
3.5 PAYMENT UPON REDEMPTION.
(a) If the giving of notice of redemption shall have been
completed as above provided, the Debentures or portions of Debentures
to be redeemed specified in such notice shall become due and payable
on the date and at the place stated in such notice at the applicable
Redemption Price and interest on such Debentures or portions of
Debentures shall cease to accrue on and after the Redemption Date,
unless the Company shall default in the payment of such Redemption
Price with respect to any such Security or portion thereof. On
presentation and surrender of such Debentures on or after the
Redemption Date at the place of payment specified in the notice, said
Debentures shall be paid and redeemed at the applicable Redemption
Price (but if the Redemption Date is also an Interest Payment Date,
the interest installment payable on such date shall be payable to the
Holder at the close
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of business on the Regular Record Date for such interest installment
pursuant to Section 2.5).
(b) Upon presentation of any Debenture that is to be redeemed in
part only, the Company shall execute, the Trustee shall authenticate
and the office or agency where the Security is presented shall deliver
to the Holder thereof, at the expense of the Company, a new Security
of authorized denomination in principal amount equal to the unredeemed
portion of the Security so presented.
3.6 NO SINKING FUND. The Debentures are not entitled to the
benefit of any sinking fund.
4. EXTENSION OF INTEREST PAYMENT PERIOD.
4.1 EXTENSION OF INTEREST PAYMENT PERIOD. So long as no Event
of Default has occurred and is continuing, the Company shall have the right, at
any time and from time to time prior to the Maturity Date of the Debentures, to
defer payments of interest by extending the interest payment period of such
Debentures for a period not exceeding 20 consecutive calendar quarters,
including the first such calendar quarter during such extension period (each
such period an "Extended Interest Payment Period"), during which Extended
Interest Payment Period no interest shall be due and payable; provided that no
Extended Interest Payment Period shall end on a date other than an Interest
Payment Date or extend beyond the Maturity Date. To the extent permitted by
applicable law, interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to this Section 4.1, will bear
interest thereon at the Coupon Rate compounded quarterly for each quarter of the
Extended Interest Payment Period ("Compounded Interest"). At the end of the
Extended Interest Payment Period, the Company shall calculate (and deliver such
calculation to the Trustee) and pay all interest accrued and unpaid on the
Debentures, including any Additional Sums and Compounded Interest (together,
"Deferred Interest") that shall be payable to the Holders of the Debentures in
whose names the Debentures are registered in the Security Register on the first
Regular Record Date preceding the end of the Extended Interest Payment Period.
Before the termination of any Extended Interest Payment Period, the Company may
further extend such period, provided that such period, including the first
calendar quarter thereof and all previous and further extensions thereof, shall
not exceed 20 consecutive calendar quarters or extend beyond the Maturity Date
of the Debentures. Upon the termination of any Extended Interest Payment Period
and the payment of all Deferred Interest then due, the Company may commence a
new Extended Interest Payment Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extended Interest Payment Period,
except at the end thereof, but the Company may prepay at any time, without
premium or penalty, all or any portion of the Deferred Interest accrued during
an Extended Interest Payment Period.
4.2 NOTICE OF EXTENSION.
(a) If the Property Trustee is the only Holder of the Debentures
at the time the Company selects an Extended Interest Payment Period,
the Company shall
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give written notice to the Administrative Trustees, the Property Trustee
and the Trustee of its selection of such Extended Interest Payment Period
two Business Days before the earlier of (i) the next succeeding date on
which Distributions (as defined in the Trust Agreement) on the Trust
Securities issued by NCBE Trust are payable, or (ii) the date NCBE Trust
is required to give notice of the record date for such next succeeding
Distributions, or the date such Distributions are payable, to the Nasdaq
National Market or to any national securities exchange or to holders of
the Preferred Securities issued by NCBE Trust, but in any event at least
one Business Day before such record date.
(b) If the Property Trustee is not the only Holder of the
Debentures at the time the Company selects an Extended Interest
Payment Period, the Company shall give the Holders of the Debentures
and the Trustee written notice of its selection of such Extended
Interest Payment Period at least two Business Days before the earlier
of (i) the next succeeding Interest Payment Date, or (ii) the date the
Company is required to give notice of such Interest Payment Date or of
the Regular Record Date relating thereto to the Nasdaq National Market
or to any national securities exchange or to Holders of the
Debentures.
(c) The calendar quarter in which any notice is given pursuant
to paragraphs (a) or (b) of this Section 4.2 shall be counted as one
of the 20 quarters permitted in the maximum Extended Interest Payment
Period permitted under Section 4.1.
4.3 LIMITATION OF TRANSACTIONS. If the Company shall exercise
its right to defer payment of interest as provided in Section 4.1, then the
Company shall not (a) declare or pay any dividend on, make any distributions
with respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock, (b) make any payment of interest,
principal or premium, if any, on, or repay, repurchase or redeem, any debt
securities issued by the Company which rank pari passu with or junior to the
Debentures or (c) make any guarantee payments with respect to any guarantee by
the Company of the debt securities of any Subsidiary of the Company if such
guarantee ranks pari passu with or junior to the Debentures (other than (a)
dividends or distributions payable in Common Stock of the Company, (b) any
declaration of a dividend in connection with the implementation of a
shareholders' rights plan, or the issuance of stock under any such plan in the
future or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under the Preferred Securities Guarantee, and (d) purchases of its
common stock related to rights under any of the Company's benefit plans for its
directors, officers or employees).
5. PARTICULAR COVENANTS OF THE COMPANY.
5.1 PAYMENT OF PRINCIPAL AND INTEREST. The Company will duly
and punctually pay or cause to be paid the principal of and interest on the
Debentures at the time and place and in the manner provided herein.
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5.2 MAINTENANCE OF AGENCY. So long as any of the Securities
remain Outstanding, the Company agrees to maintain an office or agency
(a) either in the City of Evansville, Indiana, or at the Corporate Trust Office
of the Trustee, and (b) unless the Property Trustee is the only Holder of the
Debentures, in the Borough of Manhattan, The City of New York, where
(i) Securities may be presented for payment, (ii) Securities may be presented as
hereinabove authorized for registration of transfer and exchange, and
(iii) notices and demands to or upon the Company in respect of the Securities
and this Indenture may be given or served, such designation to continue with
respect to such office or agency until the Company shall, by written notice
signed by its Chairman of the Board, President or a Vice President and delivered
to the Trustee, designate some other office or agency for such purposes or any
of them. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee at its
Corporate Trust Office as its agent to receive all such presentations, notices
and demands.
5.3 PAYING AGENTS.
(a) The Company hereby appoints the Trustee as the Paying Agent.
If, at any time, the Company shall appoint one or more Paying Agents
other than the Trustee, the Company will cause each such Paying Agent
to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions
of this Section:
(1) that it will hold all sums held by it as such Paying
Agent for the payment of the principal of (and premium, if any)
or interest on the Securities (whether such sums have been paid
to it by the Company or by any other obligor on such Securities)
in trust for the benefit of the Persons entitled thereto;
(2) that it will give the Trustee notice of any failure by
the Company (or by any other obligor on such Securities) to make
any payment of the principal of (and premium, if any) or interest
on the Securities when the same shall be due and payable;
(3) that it will, at any time during the continuance of
any failure referred to in the preceding paragraph (a)(2) above,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent; and
(4) that it will perform all other duties of Paying Agent
as set forth in this Indenture.
(b) If the Company shall act as its own Paying Agent with
respect to the Securities, it will on or before each due date of the
principal of (and premium, if any)
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or interest on Securities, set aside, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay such
principal (and premium, if any) or interest so becoming due on
Securities until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of
such action, or any failure (by it or any other obligor on such
Securities) to take such action. Whenever the Company shall have one or
more Paying Agents for any of the Securities, it will, prior to each due
date of the principal of (and premium, if any) or interest on any
Securities, deposit with the Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of this action or
failure so to act.
(c) Notwithstanding anything in this Section to the contrary,
(i) the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Sections 13.3 and 13.4, and (ii) the
Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or
direct any Paying Agent to pay, to the Trustee all sums held in trust
by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same terms and conditions as those upon which such
sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
5.4 APPOINTMENT TO FILL VACANCY IN OFFICE OF TRUSTEE. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 9.11, a Trustee, so that there
shall at all times be a Trustee hereunder.
5.5 COMPLIANCE WITH CONSOLIDATION PROVISIONS. The Company will
not, while any of the Securities remain Outstanding, consolidate with, or merge
into, or merge into itself, or sell or convey all or substantially all of its
property to any other company, unless the provisions of Article 12 hereof are
complied with.
5.6 LIMITATION ON DIVIDENDS. If Securities are issued to NCBE
Trust or a trustee of NCBE Trust in connection with the issuance of Trust
Securities by NCBE Trust and (i) there shall have occurred any event that would
constitute an Event of Default, (ii) the Company shall be in default with
respect to its payment of any obligations under the Preferred Securities
Guarantee relating to NCBE Trust or (iii) the Company shall have given notice of
its election to defer payments of interest on such Securities through an
Extended Interest Payment Period as provided in the Indenture and such period,
or any extension thereof, shall be continuing, then (a) the Company shall not
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase or make a liquidation payment with respect to, any of its
capital stock, and (b) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities issued by the Company which rank pari passu with or
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junior in interest to the Debentures or make any guarantee payments with respect
to any guarantee by the Company of the debt securities of any subsidiary of the
Company if such guarantee ranks pari passu with or junior in interest to the
Subordinated Debentures (other than (a) dividends or distributions in common
stock, (b) any declaration of a dividend in connection with the implementation
of a shareholders' rights plan, or the issuance of stock under any such plan in
the future or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under the Preferred Securities Guarantee, and (d) purchases of
common stock related to rights under any of the Company's benefit plans for its
directors, officers or employees).
5.7 COVENANTS AS TO NCBE TRUST.
(a) For so long as the Trust Securities of NCBE Trust remain
outstanding, the Company will (i) maintain 100% direct or indirect
ownership of the Common Securities of NCBE Trust; provided, however,
that any permitted successor of the Company under this Indenture may
succeed to the Company's ownership of the Common Securities, (ii) not
voluntarily dissolve, wind up or liquidate NCBE Trust, except upon
prior approval of the Federal Reserve (if such approval is then so
required under applicable capital guidelines or policies of the
Federal Reserve), (iii) use its reasonable efforts, consistent with
the terms of the Trust Agreement, to cause NCBE Trust (a) to remain a
grantor trust, except in connection with a distribution of Securities,
the redemption of all of the Trust Securities or certain mergers,
consolidations or amalgamations, each as permitted by the Trust
Agreement, and (b) to otherwise continue not to be treated as an
association taxable as a corporation or partnership for United States
federal income tax purposes, and (iv) to use its reasonable efforts,
consistent with the terms of the Trust Agreement, to cause each holder
of Trust Securities to be treated as owning an undivided beneficial
interest in the Securities.
(b) If the Debentures are to be issued as a Global Debenture in
connection with the distribution of the Debentures to the holders of
the Preferred Securities upon a Dissolution Event, the Company will
use its best efforts to list such Debentures on the Nasdaq National
Market or on such other exchange as the Preferred Securities are then
approved for quotation or listed.
6. SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE
TRUSTEE.
6.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
SECURITYHOLDERS. The Company will furnish or cause to be furnished to the
Trustee (a) on a quarterly basis on each Regular Record Date a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
Holders of Securities as of such Regular Record Date, provided that the Company
shall not be obligated to furnish or cause to be furnished such list at any time
that the list shall not differ in any respect from the most recent list
furnished to the Trustee by the Company (in the event the Company fails to
provide such list on a quarterly basis, the Trustee shall be entitled to rely on
the most recent list provided by the Company); and (b) at such other times
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as the Trustee may request in writing within 30 days after the receipt by the
Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished; provided, however,
that, in either case, no such list need be furnished when the Trustee shall be
the Security Registrar.
6.2 PRESERVATION OF INFORMATION; COMMUNICATIONS WITH
SECURITYHOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses
of the Holders of Securities contained in the most recent list
furnished to it as provided in Section 6.1 and as to the names and
addresses of Holders of Securities received by the Trustee in its
capacity as Security Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided
in Section 6.1 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in
Section 312(b) of the Trust Indenture Act with other Securityholders
with respect to their rights under this Indenture or under the
Securities.
6.3 REPORTS BY THE COMPANY.
(a) The Company covenants and agrees to file with the Trustee,
within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) that the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents
and other reports pursuant to either of such Sections, then to file
with the Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports that
may be required pursuant to Section 13 of the Exchange Act in respect
of a security listed on a national securities exchange as may be
prescribed from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee
and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the
Company with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and
regulations.
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(c) The Company covenants and agrees to transmit by mail, first
class postage prepaid, or reputable over-night delivery service that
provides for evidence of receipt, to the Securityholders, as their
names and addresses appear upon the Security Register, within 30 days
after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section as may be required
by rules and regulations prescribed from time to time by the
Commission.
6.4 REPORTS BY THE TRUSTEE.
(a) On or before July 15 in each year in which any of the
Securities are Outstanding, the Trustee shall transmit by mail, first
class postage prepaid, to the Securityholders, as their names and
addresses appear upon the Security Register, a brief report dated as
of the preceding May 15, if and to the extent required under Section
313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c) of
the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with the
Company, with each stock exchange upon which any Securities are listed
(if so listed) and also with the Commission. The Company agrees to
notify the Trustee when any Securities become listed on any stock
exchange.
7. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT.
7.1 EVENTS OF DEFAULT.
(a) Whenever used herein with respect to the Debentures, "Event
of Default" means any one or more of the following events that has
occurred and is continuing:
(1) the Company defaults in the payment of any installment
of interest upon any of the Debentures, as and when the same
shall become due and payable, and continuance of such default for
a period of 30 days; provided, however, that a valid extension of
an interest payment period by the Company in accordance with the
terms of this Indenture shall not constitute a default in the
payment of interest for this purpose;
(2) the Company defaults in the payment of the principal
of (or premium, if any, on) any of the Debentures as and when the
same shall become due and payable, whether at the Scheduled
Maturity Date, upon redemption, by declaration of acceleration or
otherwise; provided, however,
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that a valid extension of the Maturity Date of such Securities in
accordance with Section 2.2 of this Indenture shall not constitute
a default in the payment of principal or premium, if any;
(3) the Company fails to observe or perform in any material
respect any other of its covenants or agreements with respect to
the Debentures for a period of 90 days after the date on which
written notice of such failure, requiring the same to be remedied
and stating that such notice is a "Notice of Default" hereunder,
shall have been given to the Company by the Trustee, by registered
or certified mail, or to the Company and the Trustee by the holders
of at least 25% in aggregate principal amount of the Debentures at
the time Outstanding;
(4) the Company, pursuant to or within the meaning of any
Bankruptcy Law, (i) commences a voluntary case, (ii) consents to
the entry of an order for relief against it in an involuntary
case, (iii) consents to the appointment of a Custodian of it or
for all or substantially all of its property, or (iv) makes a
general assignment for the benefit of its creditors;
(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (i) is for relief against
the Company in an involuntary case, (ii) appoints a Custodian of
the Company for all or substantially all of its property, or
(iii) orders the liquidation of the Company, and, in any such
case, the order or decree remains unstayed and in effect for 90
days; or
(6) NCBE Trust shall have voluntarily or involuntarily
dissolved, wound-up its business or otherwise terminated its
existence except in connection with (i) the distribution of
Securities to holders of Trust Securities in liquidation of their
interests in NCBE Trust, (ii) the redemption of all of the
outstanding Trust Securities of NCBE Trust or (iii) certain
mergers, consolidations or amalgamations, each as permitted by
the Trust Agreement.
(b) In each and every such case, unless the principal of all the
Securities shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities then Outstanding hereunder, by notice in
writing to the Company (and to the Trustee if given by such
Securityholders) may declare the principal of all the Securities to be
due and payable immediately, and upon any such declaration, subject to
the provisions of Article 16 of this Indenture, the same shall become
and shall be immediately due and payable, notwithstanding anything to
the contrary other than Article 16 contained in this Indenture or in
the Securities.
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(c) At any time after the principal of the Securities shall have
been so declared due and payable, and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered
as hereinafter provided, the Holders of a majority in aggregate
principal amount of the Securities then Outstanding hereunder, by
written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if: (i) the Company has paid or
deposited with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities and the principal of
(and premium, if any, on) any and all Debentures that shall have
become due otherwise than by acceleration (with interest upon such
principal and premium, if any, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of
interest, at the rate per annum expressed in the Debentures to the
date of such payment or deposit) and the amount payable to the Trustee
under Section 9.7, and (ii) any and all Events of Default under the
Indenture, other than the nonpayment of principal on Debentures that
shall not have become due by their terms, shall have been remedied or
waived as provided in Section 7.6.
(d) No such rescission and annulment shall extend to or shall
affect any subsequent default or impair any right consequent thereon.
(e) In case the Trustee shall have proceeded to enforce any
right with respect to the Debentures under this Indenture and such
proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the
Company and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of
the Company and the Trustee shall continue as though no such
proceedings had been taken.
7.2 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
(a) The Company covenants that (1) in case it shall default in
the payment of any installment of interest on any of the Securities,
and such default shall have continued for a period of 90 Business
Days, or (2) in case it shall default in the payment of the principal
of (or premium, if any, on) any of the Securities when the same shall
have become due and payable, whether at the Scheduled Maturity Date of
the Securities, upon redemption, upon declaration of acceleration or
otherwise, then, upon demand of the Trustee, the Company will pay to
the Trustee, for the benefit of the Holders of the Securities, the
whole amount that then shall have been become due and payable on all
such Securities for principal (and premium, if any) or interest, or
both, as the case may be, with interest upon the overdue principal
(and premium, if any) and (to the extent that payment of such interest
is enforceable under applicable law and, if the Securities are held by
NCBE Trust or a trustee of such trust, without duplication of any
other amounts paid by NCBE Trust or a trustee in respect thereof) upon
overdue installments of interest at the rate per annum expressed
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in the Securities; and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection, and the
amount payable to the Trustee under Section 9.7.
(b) If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due
and unpaid, and may prosecute any such action or proceeding to
judgment or final decree, and may enforce any such judgment or final
decree against the Company or other obligor upon the Securities and
collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or other obligor
upon the Securities, wherever situated.
(c) In case there shall be pending proceedings for the
bankruptcy or for the reorganization of the Company or any other
obligor on the Securities under any applicable Bankruptcy Law, or in
case a Custodian shall have been appointed for the property of the
Company or such obligor, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the
Securities, or to the creditors or property of the Company or such
other obligor, the Trustee shall have power to intervene in such
proceedings and take any action therein that may be permitted by the
court and shall (except as may be otherwise provided by law) be
entitled to file such proofs of claim and other papers and documents
as may be necessary or advisable in order to have the claims of the
Trustee and of the Holders of the Securities allowed for the entire
amount due and payable by the Company under the Indenture at the date
of institution of such proceedings and for any additional amount that
may become due and payable by the Company after such date, and to
collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 9.7; and
any receiver, assignee or trustee in bankruptcy or reorganization is
hereby authorized by each of the Holders of the Securities to make
such payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to such
Securityholders, to pay to the Trustee any amount due it under
Section 9.7.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to
Securities, may be enforced by the Trustee without the possession of
any of such Securities, or the production thereof at any trial or
other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after
provision for payment to the Trustee of any amounts due under
Section 9.7, be for the ratable benefit of the Holders of the
Securities.
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(e) In case of an Event of Default hereunder, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it
by this Indenture by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any of such
rights, either at law or in equity or in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement
contained in the Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
(f) Nothing contained herein shall be deemed to authorize the
Trustee to authorize or consent to 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.
7.3 APPLICATION OF MONEY COLLECTED. Any money collected by the
Trustee pursuant to this Article 7 with respect to the Securities shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such moneys on account of principal (or premium,
if any) or interest, upon presentation of the Securities and notation thereon of
the amount of the payment, if only partially paid, and upon surrender thereof if
fully paid:
(a) FIRST: To the payment of costs and expenses of collection
and of all amounts payable to the Trustee under Section 9.7;
(b) SECOND: To the payment of all Senior Indebtedness of the
Company if and to the extent required by Article 16;
(c) THIRD: To the payment of the amounts then due and unpaid
upon Securities for principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively; and
(d) FOURTH: To the Company.
7.4 LIMITATION ON SUITS.
(a) No Holder of any Security shall have any right by virtue or
by availing of any provision of this Indenture to institute any suit,
action or proceeding in equity or at law upon or under or with respect
to this Indenture or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless (i) such Holder previously
shall have given to the Trustee written notice of an Event of Default
and of the continuance thereof with respect to the Securities
specifying such Event of Default, as hereinbefore provided; (ii) the
Holders of not less than 25% in
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aggregate principal amount of the Securities then Outstanding shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as trustee hereunder; (iii) such Holder or
Holders shall have offered to the Trustee such reasonable indemnity as
it may require against the costs, expenses and liabilities to be
incurred therein or thereby; and (iv) the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity, shall have
failed to institute any such action, suit or proceeding and during such
60 day period, the Holders of a majority in aggregate principal amount
of the Securities then Outstanding do not give the Trustee a direction
inconsistent with the request. The Company and the Trustee acknowledge
that, pursuant to Section 15.13 of this Indenture, the holders of
Preferred Securities may institute legal proceedings directly against
the Company to enforce the Property Trustee's rights under this
Indenture in the circumstances and subject to the limitations set forth
therein.
(b) Notwithstanding anything contained herein to the contrary,
the right of any Holder of any Security to receive payment of the
principal of (and premium, if any) and interest on such Security, as
therein provided, on or after the respective due dates expressed in
such Security (or in the case of redemption, on the Redemption Date),
or to institute suit for the enforcement of any such payment on or
after such respective dates or Redemption Date, shall not be impaired
or affected without the consent of such Holder, and by accepting a
Security hereunder, it is expressly understood, intended and
covenanted by the taker and Holder of every Security with every other
such taker and Holder and the Trustee, that no one or more Holders of
Securities shall have any right in any manner whatsoever by virtue or
by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the Holders of any other of such Securities,
or to obtain or seek to obtain priority over or preference to any
other such Holder, 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.
7.5 RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER.
(a) All powers and remedies given by this Article 7 to the
Trustee or to the Securityholders shall, to the extent permitted by
law, be deemed cumulative and not exclusive of any other powers and
remedies available to the Trustee or the Holders of the Securities, by
judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture
or otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee or of any Holder of any
of the Securities to exercise any right or power accruing upon any
Event of Default occurring and continuing as aforesaid shall impair
any such right or power, or shall
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be construed to be a waiver of any such default or on acquiescence
therein; and, subject to the provisions of Section 7.4, every power and
remedy given by this Article 7 or by law to the Trustee or the
Securityholders may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Securityholders.
7.6 CONTROL BY SECURITYHOLDERS; WAIVER OF DEFAULTS. The
Holders of a majority in aggregate principal amount of the Securities at the
time Outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee; provided, however, that such
direction shall not be in conflict with any rule of law or with this Indenture.
Subject to the provisions of Section 9.1, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith shall, by a
Responsible Officer or Officers of the Trustee, determine that the proceeding so
directed would involve the Trustee in personal liability. The Holders of a
majority in aggregate principal amount of the Securities at the time Outstanding
may, on behalf of the Holders of all of the Securities, waive any past default
in the performance of any of the covenants contained herein and its
consequences, except (i) a default in the payment of the principal of, or
premium, if any, or interest on, any of the Securities (provided that defaults
relating to declaration of acceleration of Securities are subject to the terms
of Section 7.1(c)), or (ii) in respect of a covenant or provision hereof which
under Section 11.2 cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected; provided, however, that if the
Debentures are held by NCBE Trust or a trustee of such trust, such waiver or
modification to such waiver shall not be effective until the holders of a
majority in aggregate liquidation amount of Trust Securities shall have
consented to such waiver or modification to such waiver; provided further, that
if the consent of the Holder of each Outstanding Security is required, such
waiver shall not be effective until each holder of the Trust Securities shall
have consented to such waiver. Upon any such waiver, the default covered thereby
shall be deemed to be cured for all purposes of this Indenture and the Company,
the Trustee and the Holders of the Securities shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
7.7 UNDERTAKING TO PAY COSTS. All parties to this Indenture,
and each Holder of any Securities by such Holder's acceptance thereof, shall be
deemed to have agreed that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Securityholder or
group of Securityholders holding more than 10% in aggregate principal amount of
the Outstanding Debentures, or to any suit instituted by any Securityholder for
the enforcement of the payment of the principal of (or premium, if any) or
interest on any Debentures on or after the respective due dates expressed in
such Debentures or established pursuant to this Indenture.
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8. FORM OF DEBENTURE AND ORIGINAL ISSUE.
8.1 FORM OF DEBENTURE. The Debentures and the Trustee's
Certificate of Authentication to be endorsed thereon are to be substantially in
the forms contained as Exhibits A, B and C to this Indenture, attached hereto
and incorporated herein by reference.
8.2 ORIGINAL ISSUE OF DEBENTURES. Debentures in the aggregate
principal amount of $___________ may, upon execution of this Indenture, be
executed by the Company and delivered to the Trustee for authentication. If the
Underwriters exercise their Option and there is an Option Closing Date (as such
terms are defined in the Trust Agreement), then on such Option Closing Date,
Debentures in the additional aggregate principal amount of
$_____________________ may be executed by the Company and delivered to the
Trustee for authentication. In either such event, the Trustee shall thereupon
authenticate and deliver said Debentures to or upon the written order of the
Company, signed by its Chairman of the Board, its President, or any Vice
President and its Treasurer or an Assistant Treasurer, without any further
action by the Company.
9. CONCERNING THE TRUSTEE.
9.1 CERTAIN DUTIES AND RESPONSIBILITIES OF TRUSTEE.
(a) The Trustee prior to the occurrence of an Event of Default
with respect to the Securities and after the curing of all Events of
Default with respect to the Debentures that may have occurred, shall
undertake to perform with respect to the Securities of such series
such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants shall be read into this Indenture
against the Trustee. In case an Event of Default with respect to the
Debentures has occurred (that has not been cured or waived), the
Trustee shall exercise with respect to Debentures 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) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with
respect to the Debentures and after the curing or waiving of all
such Events of Default with respect to the Debentures that may
have occurred:
(A) the duties and obligations of the Trustee shall
with respect to the Debentures be determined solely by the
express provisions of this Indenture, and the Trustee shall
not be liable with respect to the Debentures except for the
performance of such duties
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and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(B) in the absence of bad faith on the part of the
Trustee, the Trustee may with respect to the Debentures
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved
that the Trustee, was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
majority in principal amount of the Debentures at the time
Outstanding relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under
this Indenture with respect to the Debentures; and
(4) none of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or
powers, if there is reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured to
it under the terms of this Indenture or adequate indemnity
against such risk is not reasonably assured to it.
9.2 NOTICE OF DEFAULTS. Within 90 days after actual knowledge
by a Responsible Officer of the Trustee of the occurrence of any default
hereunder with respect to the Securities, the Trustee shall transmit by mail to
all Holders of Securities, as their names and addresses appear in the Security
Register, notice of such default, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal or (or premium, if any) or interest (including any Additional
Sums) on any Security, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee or a trust
committee of the directors and/or Responsible Officers of the Trustee determines
in good faith that the withholding of such notice is in the interests of the
Holders of such
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Securities; and provided, further, that in the case of any default of the
character specified in Section 7.1(a)(3), no such notice to Holders of
Securities shall be given until at least 30 days after the occurrence
thereof. For the purposes of this Section, the term "default" means any
event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to the Securities.
9.3 CERTAIN RIGHTS OF TRUSTEE. Except as otherwise provided in
Section 9.1:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond, security or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board Resolution
or an instrument signed in the name of the Company by the President or
any Vice President and by the Secretary or an Assistant Secretary or
the Treasurer or an Assistant Treasurer thereof (unless other evidence
in respect thereof is specifically prescribed herein);
(c) The Trustee shall not be deemed to have knowledge of a
default or an Event of Default, other than an Event of Default
specified in Section 7.1(a) (1) or (2), unless and until it receives
written notification of such Event of Default from the Company or by
Holders of at least 25% of the aggregate principal amount of the
Securities at the time Outstanding;
(d) The Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered or omitted hereunder in good faith and in reliance thereon;
(e) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders, pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that may be incurred therein or
thereby; nothing contained herein shall, however, relieve the Trustee
of the obligation, upon the occurrence of an Event of Default with
respect to the Securities (that has not been cured or waived) to
exercise with respect to the Securities such of the rights and powers
vested in it by this Indenture, and to 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;
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(f) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(g) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, security, or other papers or documents unless
requested in writing so to do by the Holders of not less than a
majority in principal amount of the Outstanding Securities affected
thereby (determined as provided in Section 10.4); provided, however,
that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable
indemnity against such costs, expenses or liabilities as a condition
to so proceeding. The reasonable expense of every such examination
shall be paid by the Company or, if paid by the Trustee, shall be
repaid by the Company upon demand; and
(h) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
9.4 TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OR
SECURITIES.
(a) The recitals contained herein and in the Securities shall be
taken as the statements of the Company and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Securities or of the proceeds
of such Securities, or for the use or application of any moneys paid
over by the Trustee in accordance with any provision of this
Indenture, or for the use or application of any moneys received by any
Paying Agent other than the Trustee.
9.5 MAY HOLD SECURITIES. The Trustee or any Paying Agent or
Security Registrar, in its individual or any other capacity, may become the
owner or pledgee of Securities with the same rights it would have if it were not
Trustee, Paying Agent or Security Registrar.
9.6 MONIES HELD IN TRUST. Subject to the provisions of
Section 13.4, all monies received by the Trustee shall, until used or applied as
herein provided, be held in trust for
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the purposes for which they were received, but need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any monies received by it hereunder except such
as it may agree with the Company to pay thereon.
9.7 COMPENSATION AND REIMBURSEMENT.
(a) The Company covenants and agrees to pay to the Trustee, and
the Trustee shall be entitled to, such reasonable compensation (which
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), as the Company and the
Trustee may from time to time agree in writing, for all services
rendered by it in the execution of the trusts hereby created and in
the exercise and performance of any of the powers and duties hereunder
of the Trustee, and, except as otherwise expressly provided herein,
the Company will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its counsel and of all Persons not regularly in its
employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Company also covenants to
indemnify the Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on the part of the
Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
defending itself against any claim of liability in the premises.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness shall
be secured by a lien prior to that of the Securities upon all property
and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities.
9.8 RELIANCE ON OFFICERS' CERTIFICATION. Except as otherwise
provided in Section 9.1 whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting to take any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted to be taken by
it under the provisions of this Indenture upon the faith thereof.
9.9 DISQUALIFICATION: CONFLICTING INTERESTS. If the Trustee
has or shall acquire any "conflicting interest" within the meaning of
Section 310(b) of the Trust Indenture Act,
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the Trustee and the Company shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
9.10 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall at all
times be a Trustee with respect to the Debentures issued hereunder which shall
at all times be a corporation organized and doing business under the laws of the
United States of America or any State or Territory thereof or of the District of
Columbia, or a corporation or other Person permitted to act as trustee by the
Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal, State,
Territorial, or District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. The Company may not, nor may any Person
directly or indirectly controlling, controlled by, or under common control with
the Company, serve as Trustee. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 9.11.
9.11 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) The Trustee or any successor hereafter appointed may at any
time resign with respect to the Securities by giving written notice
thereof to the Company and by transmitting notice of resignation by
mail, first class postage prepaid, to the Securityholders, as their
names and addresses appear upon the Security Register. Upon receiving
such notice of resignation, the Company shall promptly appoint a
successor trustee with respect to Securities by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of
which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall have been
so appointed and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor trustee with respect to Securities, or any Securityholder
who has been a bona fide Holder of a Security or Securities for at
least six months may, subject to the provisions of Section 9.10, on
behalf of himself and all others similarly situated, petition any such
court for the appointment of a successor trustee. Such court may
thereupon after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
(1) the Trustee shall fail to comply with the provisions
of Section 9.9 after written request therefor by the Company or
by any Securityholder who has been a bona fide Holder of a
Security or Securities for at least six months; or
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(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.10 and shall fail to resign
after written request therefor by the Company or by any such
Securityholder; or
(3) the Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or commence a voluntary
bankruptcy proceeding, or a receiver of the Trustee or of its
property shall be appointed or consented to, or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, the Company
may remove the Trustee with respect to all Securities and appoint
a successor trustee by written instrument, in duplicate, executed
by order of the Board of Directors, one copy of which instrument
shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section 9.9,
unless the Trustee's duty to resign is stayed as provided herein,
any Securityholder who has been a bona fide Holder of a Security
or Securities for at least six months may, on behalf of that
Holder and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of
the Securities at the time Outstanding may at any time remove the
Trustee by so notifying the Trustee and the Company and may appoint a
successor Trustee with the consent of the Company.
(d) Any resignation or removal of the Trustee and appointment of
a successor trustee with respect to the Securities pursuant to any of
the provisions of this Section shall become effective upon acceptance
of appointment by the successor trustee as provided in Section 9.12.
9.12 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor trustee
with respect to the Securities, every such successor trustee so
appointed shall execute, acknowledge and deliver to the Company and to
the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
to such successor trustee all the rights, powers, and trusts of
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the retiring Trustee and shall duly assign, transfer and deliver to such
successor trustee all property and money held by such retiring Trustee
hereunder.
(b) Upon request of any such successor trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor trustee all such rights,
powers and trusts referred to in paragraph (a) of this Article 9, as
the case may be.
(c) No successor trustee shall accept its appointment unless at
the time of such acceptance such successor trustee shall be qualified
and eligible under this Article 9.
(d) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage
prepaid, to the Securityholders, as their names and addresses appear
upon the Security Register. If the Company fails to transmit such
notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.
9.13 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to substantially all of the corporate trust business of
the Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 9.9 and eligible
under the provisions of Section 9.10, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
9.14 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship described in Section 311(b) of the Trust Indenture
Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent included therein.
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10. CONCERNING THE SECURITYHOLDERS.
10.1 EVIDENCE OF ACTION BY SECURITYHOLDERS.
(a) Whenever in this Indenture it is provided that the Holders
of a majority or specified percentage in aggregate principal amount of
the Securities may take any action (including the making of any demand
or request, the giving of any notice, consent or waiver or the taking
of any other action), the fact that at the time of taking any such
action the Holders of such majority or specified percentage have
joined therein may be evidenced by any instrument or any number of
instruments of similar tenor executed by such Holders of Securities in
person or by agent or proxy appointed in writing.
(b) If the Company shall solicit from the Securityholders any
request, demand, authorization, direction, notice, consent, waiver or
other action, the Company may, at its option, as evidenced by an
Officers' Certificate, fix in advance a record date for the
determination of Securityholders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other
action, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other action may be given before or after
the record date, but only the Securityholders of record at the close
of business on the record date shall be deemed to be Securityholders
for the purposes of determining whether Securityholders of the
requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other action, and for that purpose the
Outstanding Securities shall be computed as of the record date;
provided, however, that no such authorization, agreement or consent by
such Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
10.2 PROOF OF EXECUTION BY SECURITYHOLDERS. Subject to the
provisions of Article 9, proof of the execution of any instrument by a
Securityholder (such proof will not require notarization) or his agent or
proxy and proof of the holding by any Person of any of the Securities shall
be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b) The ownership of Securities shall be proved by the Security
Register or by a certificate of the Security Registrar thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
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10.3 WHO MAY BE DEEMED OWNERS. Prior to the due presentment
for registration of transfer of any Security, the Company, the Trustee, any
Paying Agent and any Security Registrar may deem and treat the Person in
whose name such Security shall be registered upon the Security Register as
the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notice of ownership or writing thereon made
by anyone other than the Security Registrar) for the purpose of receiving
payment of or on account of the principal of, premium, if any, and (subject
to Section 2.3) interest on such Security and for all other purposes; and
neither the Company nor the Trustee nor any Paying Agent nor any Security
Registrar shall be affected by any notice to the contrary.
10.4 CERTAIN SECURITIES OWNED BY COMPANY DISREGARDED. In
determining whether the Holders of the requisite aggregate principal amount
of Securities have concurred in any direction, consent of waiver under this
Indenture, the Securities that are owned by the Company or any other obligor
on the Securities or by any Person directly or indirectly controlling or
controlled by or under common control with the Company or any other obligor
on the Securities shall be disregarded and deemed not to be Outstanding for
the purpose of any such determination, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver, only Securities that the Trustee actually knows
are so owned shall be so disregarded. The Securities so owned that have been
pledged in good faith may be regarded as Outstanding for the purposes of this
Section, if the pledgee shall establish to the satisfaction of the Trustee
the pledgee's right so to act with respect to such Securities and that the
pledgee is not a Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any such other
obligor. In case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee.
10.5 ACTIONS BINDING ON FUTURE SECURITYHOLDERS. At any time
prior to (but not after) the evidencing to the Trustee, as provided in
Section 10.1, of the taking of any action by the Holders of the majority or
other specified percentage in aggregate principal amount of the Securities in
connection with such action, any Holder of a Security that is shown by the
evidence to be included in the Securities the Holders of which have consented
to such action may, by filing written notice with the Trustee, and upon proof
of holding as provided in Section 10.2, revoke such action so far as concerns
such Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security, and of any Security issued in exchange
therefor, on registration of transfer thereof or in place thereof,
irrespective of whether or not any notation in regard thereto is made upon
such Security. Any action taken by the Holders of the majority or other
specified percentage in aggregate principal amount of the Securities in
connection with such action shall be conclusively binding upon the Company,
the Trustee and the Holders of all the Securities.
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11. SUPPLEMENTAL INDENTURES.
11.1 SUPPLEMENTAL INDENTURES WITHOUT THE CONSENT OF SECURITY
HOLDERS.
(a) In addition to any supplemental indenture otherwise
authorized by this Indenture, the Company and the Trustee may from
time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect), without the consent of the
Securityholders, for one or more of the following purposes:
(1) to cure any ambiguity, defect, or inconsistency
herein, in the Securities;
(2) to comply with Article 9;
(3) to provide for uncertificated Securities in addition
to or in place of certificated Securities;
(4) to add to the covenants of the Company for the benefit
of the Holders of all of the Securities or to surrender any right
or power herein conferred upon the Company;
(5) to add to, delete from, or revise the conditions,
limitations, and restrictions on the authorized amount, terms, or
purposes of issue, authentication, and delivery of Securities, as
herein set forth;
(6) to make any change that does not adversely affect the
rights of any Securityholder in any material respect;
(7) to provide for the issuance of and establish the form
and terms and conditions of the Securities, to establish the form
of any certifications required to be furnished pursuant to the
terms of this Indenture, or to add to the rights of the holders
of Securities; or
(8) qualify or maintain the qualification of the Indenture
under the Trust Indenture Act; or
(9) to evidence a merger or consolidation involving the
Company.
(b) The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, and to make any
further appropriate agreements and stipulations that may be therein
contained, but the Trustee shall not
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be obligated to enter into any such supplemental indenture that
affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
(c) Any supplemental indenture authorized by the provisions of
this Section may be executed by the Company and the Trustee without
the consent of the Holders of any of the Securities at the time
Outstanding, notwithstanding any of the provisions of Section 11.2.
11.2 SUPPLEMENT INDENTURES WITH CONSENT OF SECURITYHOLDERS.
(a) With the consent (evidenced as provided in Section 10.1) of
the Holders of not less than a majority in aggregate principal amount
of the Securities at the time Outstanding, the Company, when
authorized by Board Resolutions, and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture
Act as then in effect) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any
manner not covered by Section 11.1 the rights of the Holders of the
Securities under this Indenture; provided, however, that no such
supplemental indenture shall without the consent of the Holders of
each Debenture then Outstanding and affected thereby, (i) extend
(other than in accordance with Section 2.2) the Scheduled Maturity
Date of any Securities, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or
reduce any premium payable upon the redemption thereof, or (ii) reduce
the aforesaid percentage of Securities, the Holders of which are
required to consent to any such supplemental indenture; provided
further, that if the Debentures are held by NCBE Trust or a trustee of
such trust, such supplemental indenture shall not be effective until
the Holders of a majority in liquidation amount of Trust Securities
shall have consented to such supplemental indenture; provided further,
that if the consent of the Holder of each Outstanding Security is
required, such supplemental indenture shall not be effective until
each Holder of the Trust Securities shall have consented to such
supplemental indenture.
(b) It shall not be necessary for the consent of the
Securityholders affected thereby under this Section to approve the
particular form of any proposed supplemental indenture, but it shall
be sufficient if such consent shall approve the substance thereof.
11.3 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution
of any supplemental indenture pursuant to the provisions of this Article 11
or otherwise authorized pursuant to this Indenture, this Indenture shall be
and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the Holders of
Securities shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and
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amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
11.4 SECURITIES AFFECTED BY SUPPLEMENTAL INDENTURES.
Securities affected by a supplemental indenture, authenticated and delivered
after the execution of such supplemental indenture pursuant to the provisions
of this Article or otherwise authorized pursuant to this Indenture, may bear
a notation in form approved by the Company, provided such form meets the
requirements of any exchange upon which the Securities may be listed as to
any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of that series so modified as to conform, in the
opinion of the Board of Directors of the Company, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the
Securities then Outstanding.
11.5 EXECUTION OF SUPPLEMENTAL INDENTURES.
(a) Upon the request of the Company, accompanied by their Board
Resolutions authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the
consent of Securityholders required to consent thereto as aforesaid,
the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the
Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion but shall
not be obligated to enter into such supplemental indenture. The
Trustee, subject to the provisions of Section 9.1, may receive an
Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Section is authorized or permitted
by, and conforms to, the terms of this Section and that it is proper
for the Trustee under the provisions of this Section to join in the
execution thereof.
(b) Promptly after the execution by the Company and the Trustee
of any supplemental indenture pursuant to the provisions of this
Section, the Trustee shall transmit by mail, first class postage
prepaid, a notice, setting forth in general terms the substance of
such supplemental indenture, to the Securityholders as their names and
addresses appear upon the Security Register. Any failure of the
Trustee to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such
supplemental indenture.
12. SUCCESSOR CORPORATION.
12.1 COMPANY MAY CONSOLIDATE, ETC. Nothing contained in this
Indenture or in any of the Securities shall prevent any consolidation or
merger of the Company with or into any other corporation or corporations
(whether or not affiliated with the Company, as the case may be), or
successive consolidations or mergers in which the Company, as the case may
be, or its successor or successors shall be a party or parties, or shall
prevent any sale, conveyance, transfer or
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other disposition of the property of the Company, as the case may be, or its
successor or successors as an entirety, or substantially as an entirety, to
any other corporation (whether or not affiliated with the Company, as the
case may be, or its successor or successors) authorized to acquire and
operate the same; provided, however, the Company hereby covenants and agree
that, (i) upon any such consolidation, merger, sale, conveyance, transfer or
other disposition, the due and punctual payment, in the case of the Company,
of the principal of (premium, if any) and interest on all of the Debentures,
according to their terms and the due and punctual performance and observance
of all the covenants and conditions of this Indenture to be kept or performed
by the Company as the case may be, shall be expressly assumed, by
supplemental indentures (which shall conform to the provisions of the Trust
Indenture Act, as then in effect) satisfactory in form to the Trustee
executed and delivered to the Trustee by the entity formed by such
consolidation, or into which the Company, as the case may be, shall have been
merged, or by the entity which shall have acquired such property; (ii) in
case the Company consolidates with or merges into another Person or conveys
or transfers its properties and assets substantially then as an entirety to
any Person, the successor Person is organized under the laws of the United
States of any state or the District of Columbia, and (iii) immediately after
giving effect thereto, no Event of Default, and no event which, after notice
or lapse of time or both, would become an Event of Default, shall have
occurred and be continuing.
12.2 SUCCESSOR CORPORATION SUBSTITUTED.
(a) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition and upon the assumption by the successor
corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of, in the case of
the Company, the due and punctual payment of the principal of,
premium, if any, and interest on all of the Debentures Outstanding and
the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Company, as the
case may be, such successor corporation shall succeed and be
substituted for the Company with the same effect as if it had been
named as the Company herein, and thereupon the predecessor corporation
shall be relieved of all obligations and covenants under this
Indenture and the Securities.
(b) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition such changes in phraseology and form
(but not in substance) may be made in the Securities thereafter to be
issued as may be appropriate.
(c) Nothing contained in this Indenture or in any of the
Securities shall prevent the Company from merging into itself or
acquiring by purchase or otherwise all or any part of the property of
any other Person (whether or not affiliated with the Company).
12.3 EVIDENCE OF CONSOLIDATION, ETC. TO TRUSTEE. The Trustee,
subject to the provisions of Section 9.1 may receive an Opinion of Counsel as
conclusive evidence that any
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such consolidation, merger, sale, conveyance, transfer or other disposition,
and any such assumption, complies with the provisions of this Article 12.
13. SATISFACTION AND DISCHARGE.
13.1 SATISFACTION AND DISCHARGE OF INDENTURE. If at any
time: (a) the Company shall have delivered to the Trustee for cancellation
all Securities theretofore authenticated (other than any Securities that
shall have been destroyed, lost or stolen and that shall have been replaced
or paid as provided in Section 2.9) and not theretofore canceled or (b) all
such Securities not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit or cause to be deposited with the
Trustee, in trust, funds in form of money or Governmental Obligations or a
combination thereof, in an amount sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay at maturity or upon
redemption all Securities (other than any Securities that shall have been
destroyed, lost or stolen and that shall have been replaced or paid as
provided in Section 2.9) not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or
to become due to such date of maturity or Redemption Date, as the case may
be, but excluding, however, the amount of any funds theretofore repaid to the
Company in accordance with the provisions of Section 13.4 or paid to any
State or other governmental entity pursuant to its unclaimed property or
similar laws, and if in either case the Company shall also pay or cause to be
paid all other sums payable hereunder with respect to the Company, then this
Indenture shall thereupon cease to be of further effect except for the
provisions of Sections 2.3, 2.7, 2.9, 5.1, 5.2, 5.3 and 9.10, that shall
survive until the date of maturity or Redemption Date, as the case may be,
and Sections 9.7 and 13.4, that shall survive to such date and thereafter,
and the Trustee, on demand of the Company and at the cost and expense of the
Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture.
13.2 DEPOSITED MONEY TO BE HELD IN TRUST. All money or
Governmental Obligations deposited with the Trustee pursuant to Section 13.1
shall be held in trust and shall be available for payment as due, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent), to the Holders of the Securities for the payment or redemption
of which such money or Governmental Obligations have been deposited with the
Trustee.
13.3 PAYMENT OF MONIES HELD BY PAYING AGENTS. In connection
with the satisfaction and discharge of this Indenture all money or
Governmental Obligations then held by any Paying Agent under the provisions
of this Indenture shall, upon demand of the Company, be paid to the Trustee
and thereupon such Paying Agent shall be released from all further liability
with respect to such money or Governmental Obligations.
13.4 REPAYMENT TO COMPANY. Any money or Governmental
Obligations deposited with any Paying Agent or the Trustee, or then held by
the Company in trust for payment of principal of or premium or interest on
the Securities that are not applied but remain unclaimed by
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the Holders of such Securities for at least two years after the date upon
which the principal of (and premium, if any) or interest on such Securities
shall have respectively become due and payable, shall be repaid to the
Company, upon written request by the Company, on March 31 of each year or (if
then held by the Company) shall be discharged from such trust; and thereupon
the Paying Agent and the Trustee shall be released from all further liability
with respect to such money or Governmental Obligations, and the Holder of any
of the Securities entitled to receive such payment shall thereafter, as an
unsecured general creditor, look only to the Company for the payment thereof.
14. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.
14.1 NO RECOURSE. No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Security, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or future as
such, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the creation
of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in
any of the Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Securities.
15. MISCELLANEOUS PROVISIONS.
15.1 EFFECT ON SUCCESSORS AND ASSIGNS. All the covenants,
stipulations, promises and agreements in this Indenture contained by or on
behalf of the Company shall bind its respective successors and assigns,
whether so expressed or not.
15.2 ACTIONS BY SUCCESSORS. Any act or proceeding by any
provision of this Indenture authorized or required to be done or performed by
any board, committee or officer of the Company shall and may be done and
performed with like force and effect by the corresponding board, committee or
officer of any corporation that shall at the time be the lawful sole
successor of the Company.
15.3 SURRENDER OF COMPANY POWERS. The Company by instrument
in writing executed by authority of its Board of Directors and delivered to
the Trustee may surrender
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any of the powers reserved to the Company, and thereupon such power so
surrendered shall terminate both as to the Company, as the case may be, and
as to any successor corporation.
15.4 NOTICES. Except as otherwise expressly provided herein
any notice or demand that by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Holders of
Securities to or on the Company may be given or served by being deposited
first class postage prepaid in a post-office letterbox addressed (until
another address is filed in writing by the Company with the Trustee), as
follows: National City Bancshares, Inc., 000 Xxxx Xxxxxx, X.X. Xxx 000,
Xxxxxxxxxx, Xxxxxxx 00000-0000, Attention: Chairman of the Board. Any
notice, election, request or demand by the Company or any Securityholder to
or upon the Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if received in writing at the Corporate Trust Office of the
Trustee.
15.5 GOVERNING LAW. This Indenture and each Security shall
be deemed to be a contract made under the internal laws of the State of
Indiana and for all purposes shall be construed in accordance with the laws
of said State.
15.6 TREATMENT OF DEBENTURES AS DEBT. It is intended that
the Debentures will be treated as indebtedness and not as equity for federal
income tax purposes. The provisions of this Indenture shall be interpreted to
further this intention.
15.7 COMPLIANCE CERTIFICATES AND OPINIONS.
(a) Upon any application or demand by the Company to the Trustee
to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the case
of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional
certificate or opinion need be furnished.
(b) Each certificate and opinion of the Company provided for in
this Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant in this Indenture shall include (1) a
statement that the Person making such certificate or opinion has read
such covenant or condition; (2) 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; (3) 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 (4) a statement as to whether or not, in
the opinion of such Person, such condition or covenant has been
complied with.
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15.8 PAYMENTS ON BUSINESS DAYS. In any case where the date
of maturity of interest or principal (and premium, if any) of any Security or
the date of redemption of any Security shall not be a Business Day, then
payment of interest or principal (and premium, if any) may be made on the
next succeeding Business Day with the same force and effect as if made on the
nominal date of maturity or redemption, and no interest shall accrue for the
period after such nominal date to such next succeeding Business Day.
15.9 CONFLICT WITH TRUST INDENTURE ACT. If and to the
extent that any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
15.10 COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
15.11 SEVERABILITY. In case any one or more of the
provisions contained in this Indenture or in the Securities of any series
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provisions of this Indenture or of such Securities, but this Indenture
and such Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
15.12 ASSIGNMENT. This Indenture is binding upon and inures
to the benefit of the parties hereto and their respective successors and
assigns. This Indenture may not otherwise be assigned by the parties hereto.
15.13 ACKNOWLEDGMENT OF RIGHTS. The Company acknowledges
that, with respect to any Debentures held by NCBE Trust or a trustee of such
trust, if the Property Trustee fails to enforce its rights under this
Indenture as the Holder of the Debentures, any Holder of Preferred Securities
may, to the extent permitted by law, institute legal proceedings directly
against the Company to enforce such Property Trustee's rights under this
Indenture without first instituting any legal proceedings against such
Property Trustee or any other person or entity. Notwithstanding Section 7.4,
if an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest or principal on
the Securities on the date such interest or principal is otherwise payable
(or in the case of redemption, on the Redemption Date), the Company
acknowledges that a Holder of Preferred Securities may directly institute a
proceeding for enforcement of payment to such Holder of the principal of or
interest on the Securities having a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such Holder on or after the
respective due date specified in the Securities. This Indenture may not be
amended to remove the foregoing direct right of action without the prior
written consent of all Holders of Preferred Securities. The Company shall
have a right of set-off under this Indenture for any payment so made to such
Holder.
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16. SUBORDINATION OF SECURITIES.
16.1 AGREEMENT TO SUBORDINATE.
(a) The Company covenants and agrees, and each Holder of
Debentures issued hereunder by such Holder's acceptance thereof
likewise covenants and agrees, that all Debentures shall be issued
subject to the provisions of this Article 16; and each Holder of a
Debenture, whether upon original issue or upon transfer or assignment
thereof, accepts and agrees to be bound by such provisions.
(b) The payment by the Company of the principal of, premium, if
any, and interest on all Debentures issued hereunder shall, to the
extent and in the manner hereinafter set forth, be subordinated and
junior in right of payment to the prior payment in full of all Senior
Debt and Additional Senior Obligations, whether outstanding at the
date of this Indenture or thereafter incurred.
(c) No provision of this Article 16 shall prevent the occurrence
of any default or Event of Default hereunder.
16.2 DEFAULT ON SENIOR DEBT OR ADDITIONAL SENIOR OBLIGATIONS.
(a) In the event and during the continuation of any default by
the Company in the payment of principal, premium, interest or any
other payment due on any Senior Debt or Additional Senior Obligations
of the Company, as the case may be, or in the event that the maturity
of any Senior Debt or Additional Senior Obligations of the Company
(collectively, "Senior Indebtedness"), as the case may be, has been
accelerated because of a default, then, in either case, no payment
shall be made by the Company with respect to the principal (including
redemption and sinking fund payments) of, or premium, if any, or
interest on the Debentures.
(b) In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee when such payment is
prohibited by the preceding paragraph of this Section 16.2, such
payment shall be held in trust for the benefit of, and shall be paid
over or delivered to, the holders of Senior Indebtedness or their
respective representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the
extent that the holders of the Senior Indebtedness (or their
representative or representatives or a trustee) notify the Trustee in
writing within 90 days of such payment of the amounts then due and
owing on the Senior Indebtedness and only the amounts specified in
such notice to the Trustee shall be paid to the holders of Senior
Indebtedness.
16.3 LIQUIDATION; DISSOLUTION; BANKRUPTCY.
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(a) Upon any payment by the Company or distribution of assets of
the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or
liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other
proceedings, all amounts due upon all Senior Indebtedness of the Company
shall first be paid in full, or payment thereof provided for in money in
accordance with its terms, before any payment is made by the Company on
account of the principal (and premium, if any) or interest on the
Debentures; and upon any such dissolution or winding-up or liquidation
or reorganization, any payment by the Company, or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities, to which the Holders of the Debentures or the Trustee would
be entitled to receive from the Company, except for the provisions of
this Article 16, shall be paid by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making
such payment or distribution, or by the Holders of the Debentures or by
the Trustee under the Indenture if received by them or it, directly to
the holders of Senior Indebtedness of the Company (pro rata to such
holders on the basis of the respective amounts of Senior Indebtedness
held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay such Senior Indebtedness in full,
in money or money's worth, after giving effect to any concurrent payment
or distribution to or for the holders of such Senior Indebtedness,
before any payment or distribution is made to the Holders of Debentures
or to the Trustee.
(b) In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited by the
foregoing, shall be received by the Trustee before all Senior
Indebtedness of the Company is paid in full, or provision is made for
such payment in money in accordance with its terms, such payment or
distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Senior Indebtedness or
their representative or representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, and their respective
interests may appear, as calculated by the Company, for application to
the payment of all Senior Indebtedness of the Company, as the case may
be, remaining unpaid to the extent necessary to pay such Senior
Indebtedness in full in money in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the
benefit of the holders of such Senior Indebtedness.
(c) For purposes of this Article 16, the words "cash, property
or securities" shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or securities of the Company or
any other corporation provided for by a plan of reorganization or
readjustment, the payment of which is
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subordinated at least to the extent provided in this Article 16 with
respect to the Debentures to the payment of all Senior Indebtedness of
the Company, as the case may be, that may at the time be outstanding,
provided that (i) such Senior Indebtedness is assumed by the new
corporation, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the holders of such Senior
Indebtedness are not, without the consent of such holders, altered by
such reorganization or readjustment. The consolidation of the Company
with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or
transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided
for in Article 12 of this Indenture shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this
Section if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article 12 of this Indenture. Nothing in Section
16.2 or in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 9.7 of the Indenture.
16.4 SUBROGATION.
(a) Subject to the payment in full of all Senior Indebtedness of
the Company, the rights of the holders of the Debentures shall be
subrogated to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of cash, property or securities of
the Company, as the case may be, applicable to such Senior
Indebtedness until the principal of (and premium, if any) and interest
on the Debentures shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of such
Senior Indebtedness of any cash, property or securities to which the
Holders of the Debentures or the Trustee would be entitled except for
the provisions of this Article 16, and no payment over pursuant to the
provisions of this Article 16 to or for the benefit of the holders of
such Senior Indebtedness by Holders of the Debentures or the Trustee,
shall, as between the Company, its creditors other than holders of
Senior Indebtedness of the Company, and the Holders of the Debentures,
be deemed to be a payment by the Company to or on account of such
Senior Indebtedness. It is understood that the provisions of this
Article 16 are and are intended solely for the purposes of defining
the relative rights of the Holders of the Debentures, on the one hand,
and the holders of such Senior Indebtedness on the other hand.
(b) Nothing contained in this Article 16 or elsewhere in this
Indenture or in the Debentures is intended to or shall impair, as
between the Company, its creditors (other than the holders of Senior
Indebtedness of the Company), and the Holders of the Debentures, the
obligations of the Company, which is absolute and unconditional, to
pay to the Holders of the Debentures the principal of (and premium, if
any) and interest on the Debentures as and when the same shall become
due and payable in accordance with their terms, or is intended to or
shall affect the relative
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rights of the Holders of the Debentures and creditors of the Company, as
the case may be, other than the holders of Senior Indebtedness of the
Company, as the case may be, nor shall anything herein or therein
prevent the Trustee or the Holder of any Debenture from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article 16 of the
holders of such Senior Indebtedness in respect of cash, property or
securities of the Company, as the case may be, received upon the
exercise of any such remedy.
(c) Upon any payment or distribution of assets of the Company
referred to in this Article 16, the Trustee, subject to the provisions
of Article 9 of the Indenture, and the Holders of the Debentures shall
be entitled to conclusively rely upon any order or decree made by any
court of competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidation
trustee, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of the Debentures, for the
purposes of ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, as the case may be, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article 16.
16.5 TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder of
Debentures by such Holder's acceptance thereof authorizes and directs the
Trustee on such Holder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article 16 and
appoints the Trustee such Holder's attorney-in-fact for any and all such
purposes.
16.6 NOTICE BY THE COMPANY.
(a) The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the Company
that would prohibit the making of any payment of money to or by the
Trustee in respect of the Debentures pursuant to the provisions of
this Article 16. Notwithstanding the provisions of this Article 16 or
any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that would
prohibit the making of any payment of money to or by the Trustee in
respect of the Debentures pursuant to the provisions of this
Article 16, unless and until a Responsible Officer of the Trustee
shall have received written notice thereof from the Company or a
holder or holders of Senior Indebtedness or from any trustee therefor;
and before the receipt of any such written notice, the Trustee,
subject to the provisions of Section 9.1 of the Indenture, shall be
entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice
provided for in this Section 16.6 at least two Business Days prior to
the date upon which by the terms hereof any money may become payable
for any purpose (including, without limitation, the payment of the
principal of (or premium, if any) or interest on any
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Debenture), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purposes for which they
were received, and shall not be affected by any notice to the contrary
that may be received by it within two Business Days prior to such date.
(b) The Trustee, subject to the provisions of Section 9.1 of the
Indenture, shall be entitled to conclusively rely on the delivery to
it of a written notice by a Person representing himself to be a holder
of Senior Indebtedness of the Company, as the case may be (or a
trustee on behalf 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 or holders. In the event that the Trustee
determines in good faith that further evidence is required with
respect to the right of any Person as a holder of such Senior
Indebtedness to participate in any payment or distribution pursuant to
this Section 16, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the
amount of such Senior Indebtedness held by such Person, the extent to
which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such
Person under this Article 16, and, if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
16.7 RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR INDEBTEDNESS.
(a) The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article 16 in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder. The Trustee's
right to compensation and reimbursement of expenses as set forth in
Section 9.7 shall not be subject to the subordination provisions of
this Article 16.
(b) With respect to the holders of Senior Indebtedness of the
Company, the Trustee undertakes to perform or to observe only such of
its covenants and obligations as are specifically set forth in this
Article 16, and no implied covenants or obligations with respect to
the holders of such Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of such Senior Indebtedness and,
subject to the provisions of Section 9.1 of the Indenture, the Trustee
shall not be liable to any holder of such Senior Indebtedness if it
shall pay over or deliver to Holders of Debentures, the Company or any
other Person money or assets to which any holder of such Senior
Indebtedness shall be entitled by virtue of this Article 16 or
otherwise.
16.8 SUBORDINATION MAY NOT BE IMPAIRED.
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(a) No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company, as the case may be,
or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Company, as the case may be, with the
terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof that any such holder may have or otherwise be
charged with.
(b) Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company may, at
any time and from time to time, without the consent of or notice to
the Trustee or the Holders of the Debentures, without incurring
responsibility to the Holders of the Debentures and without impairing
or releasing the subordination provided in this Article 16 or the
obligations hereunder of the Holders of the Debentures to the holders
of such Senior Indebtedness, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the time of
payment of, or renew or alter, such Senior Indebtedness, or otherwise
amend or supplement in any manner such Senior Indebtedness or an
instrument evidencing the same or any agreement under which such
Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise
securing such Senior Indebtedness; (iii) release any Person liable in
any manner for the collection of such Senior Indebtedness; and
(iv) exercise or refrain from exercising any rights against the
Company, as the case may be, and any other Person.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
NATIONAL CITY BANCSHARES, INC.
By:_____________________________________________
Xxxxxxx X. Xxxxxxx, Chairman of the Board and
Chief Executive Officer
ATTEST:
___________________________________
Xxxxxxx X. Xxxxxxx, Xx., Secretary
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Trustee
By:________________________________________
Name:______________________________________
Title:_____________________________________
STATE OF INDIANA )
) SS:
COUNTY OF VANDERBURGH )
The foregoing instrument was acknowledged before me this ____ day of
________, 1998 by Xxxxxxx X. Xxxxxxx, as Chairman of the Board and Chief
Executive Officer of National City Bancshares, Inc., an Indiana corporation, on
behalf of the corporation.
___________________________________
Notary Public
My commission expires:
____________________.
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STATE OF DELAWARE )
) SS:
COUNTY OF __________ )
The foregoing instrument was acknowledged before me this ____ day of
________, 1998 by _______________, as _________________________ of Wilmington
Trust Company, a Delaware banking corporation, on behalf of the corporation.
_______________________________________
Notary Public
My commission expires:
___________________.
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EXHIBIT A
(FORM OF FACE OF DEBENTURE)
No. ____________________ $ ______________________ CUSIP No. _______-__-_
NATIONAL CITY BANCSHARES, INC.
___% SUBORDINATED DEBENTURE
DUE MARCH 31, 2028
National City Bancshares, Inc., an Indiana corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to,
________________ (the Holder), or registered assigns, the principal sum of
_______________ Dollars ($_______) at March 31, 2028, which date may be (1)
extended one or more times at the option of the Company to a date not later
than March 31, 2037, subject to the prior approval of the Board of Governors
of the Federal Reserve System (the Federal Reserve) if then required under
applicable capital guidelines or policies of the Federal Reserve (Federal
Reserve Approval), or (2) shortened (a) by redemption at the option of the
Company on or after March 31, 2003, subject to Federal Reserve Approval, or
(b) by declaration of acceleration, notice of redemption (including
redemption following a Tax Event, Investment Company Event, or Capital Event,
as described in the Indenture), or otherwise. The Debenture shall bear
interest on the principal amount hereof at the rate of ___% per annum (the
Coupon Rate) from __________, 1998, until the principal hereof becomes due
and payable, and on any overdue principal, and (to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment
of interest at the Coupon Rate, compounded quarterly, payable (subject to the
provisions of the Indenture governing Extended Interest Payment Periods)
quarterly in arrears on March 31, June 30, September 30 and December 31 of
each year (each an Interest Payment Date) commencing on June 30, 1998, to the
Person in whose name such Debenture or any Predecessor Security is
registered, at the close of business on the Regular Record Date for such
interest installment. The amount of interest payable for any period will be
computed on the basis of a 360-day year consisting of twelve 30-day months
and, for any period of less than a full calendar month, the number of days
elapsed in such month. In the event that any date on which interest is
payable on the Debentures is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any
such delay) with the same force and effect as if made on the date such
payment was originally payable. The principal and the interest on this
Debenture shall be payable at the office or agency of the Company maintained
for that purpose; provided, however, that payment of interest may be made at
the option of the Company by check mailed to the registered holder (as
defined in the Indenture) at such address as shall appear in the Security
Register or by wire transfer to an account maintained by the Holder as
specified in the Security Register. Notwithstanding the foregoing, so long as
the Holder of this Debenture is the Property Trustee, the payment of the
principal and interest on this Debenture will be made at such place and to
such account as may be designated by the Property Trustee.
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The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness (as defined in the
Indenture), and this Debenture is issued subject to the provisions of the
Indenture with respect thereto. Each Holder of this Debenture, by accepting
the same, (a) agrees to and shall be bound by such provisions, (b) authorizes
and directs the Trustee on his or her behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his or her attorney-in-fact for any and
all such purposes. No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein provided shall
at any time in any way be prejudiced or impaired by any act or failure to act
on the part of the Company, as the case may be, or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the
Company, as the case may be, with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have
or otherwise be charged with.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Trustee.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated ___________, 1998
NATIONAL CITY BANCSHARES, INC.
By:______________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
Attest:
By: _____________________________
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Secretary
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EXHIBIT B
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures described in the within-mentioned
Indenture.
Dated:_________________
WILMINGTON TRUST COMPANY, ___________________________________
not in its individual capacity, Authenticating Agent
but solely as Trustee
or
By:_________________________ By:__________________________________
Authorized Signatory
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EXHIBIT C
(FORM OF REVERSE OF DEBENTURE)
_____% SUBORDINATED DEBENTURE
(CONTINUED)
This Debenture is one of the subordinated debentures of the Company
(herein sometimes referred to as the "Debentures"), specified in the Indenture,
all issued or to be issued under and pursuant to an Indenture dated as of
_______________, 1998 (the "Indenture") duly executed and delivered between the
Company and Wilmington Trust Company, as Trustee (the "Trustee"), to which
Indenture reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the
Company, and the Holders of the Debentures and the holders of Senior
Indebtedness. The Debentures are limited in aggregate principal amount as
specified in the Indenture.
The Company shall have the right to redeem this Debenture at the
option of the Company, without premium or penalty, in whole or in part at any
time on or after March 31, 2003, or at any time in certain circumstances upon
the occurrence of a Special Event, at a Redemption Price equal to 100% of the
principal amount to be redeemed plus any accrued and unpaid interest thereon to
the date of such redemption. Any redemption pursuant to this paragraph shall be
made upon not less than 30 days' nor more than 60 days' notice, at the
Redemption Price.
In case an Event of Default shall have occurred and be continuing, the
principal of all of the Debentures may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of Debentures not less than a
majority in aggregate principal amount of the Debentures at the time
Outstanding to execute supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or of modifying in any
manner the rights of the Holders of the Debentures; provided, however, that
no such supplemental indenture shall without the consent of each Holder of an
Outstanding Debenture affected thereby (i) extend (other than in accordance
with the Indenture's provisions for an Extended Maturity Date) the Scheduled
maturity of the Debentures or reduce the principal amount thereof, or reduce
the rate or extend the time of payment of interest thereon, or reduce any
premium payable upon the redemption thereof, or (ii) reduce the aforesaid
percentages of Debentures, the Holders of which are required to consent to
any such supplemental indenture. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of the
Debentures at the time Outstanding to, under certain circumstances, rescind
and annul a declaration that the principal of the Debentures shall become
payable following an Event of Default, and its consequences. Any such consent
or waiver by the registered Holder of this Debenture (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such
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Holder and upon all future Holders and owners of this Debenture and of any
Debenture issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at
the rate and in the money herein prescribed.
The Company, as further described in the Indenture, shall have the
right at any time during the term of the Debentures and from time to time to
defer payments of interest by extending the interest payment period of such
Debentures for up to 20 consecutive quarters including the first such
calendar quarter during such period (each, an Extended Interest Payment
Period); provided that no Extended Interest Payment Period shall extend
beyond the Maturity Date or end on a date other than an Interest Payment
Date. At the end of the Extended Interest Payment Period, the Company shall
calculate and pay all interest accrued and unpaid, including any Additional
Sums and Compounded Interest (together, Deferred Interest) that shall be
payable to the holders of the Debentures in whose names the Debentures are
registered in the Security Register on the Regular Record Date preceding the
end of the Extended Interest Payment Period. Before the termination of any
Extended Interest Payment Period, the Company may further extend such period,
provided such period including the first calendar quarter thereof and all
previous and further extensions thereof shall not exceed 20 consecutive
quarters or extend beyond the Maturity Date. At the termination of any such
Extended Interest Payment Period and upon the payment of all Deferred
Payments then due, the Company may commence a new Extended Interest Payment
Period. The Company may prepay at any time, without premium or penalty, all
or any portion of the Deferred Interest accrued during an Extended Interest
Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferrable by the Holder hereof on
the Security Register, upon surrender of this Debenture for registration of
transfer at the office or agency of the Company maintained for that purpose,
accompanied (if required by the Company or Securities Registrar) by a written
instrument or instruments of transfer in form satisfactory to the Company or
the Security Registrar, duly executed by the Holder hereof or his attorney
duly authorized in writing, and thereupon there shall be delivered in the
name of the transferee or transferees a new Debenture or Debentures for a
like aggregate principal amount. No service charge shall be made for any such
transfer, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any Paying Agent and the Security
Registrar may deem and treat the Holder hereof as the absolute owner hereof
(whether or not this Debenture shall be overdue and notwithstanding any
notice of ownership or writing hereon made by anyone other than the Security
Registrar) for the purpose of receiving payment of or on account of the
principal hereof and interest due hereon and
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for all other purposes, and neither the Company nor the Trustee nor any
Paying Agent nor any Security Registrar shall be affected by any notice to
the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise, it being understood that all
obligations hereunder and under the Indenture are solely corporate
obligations, and all such liability being, by the acceptance hereof as a
condition of and as part of the consideration for the issuance hereof,
expressly waived and released.
In connection with a Dissolution Event with respect to NCBE Capital
Trust I, this Debenture may become exchangeable for a Global Debenture of
like aggregate principal amount or for debentures to be exchanged for Non
Book-Entry Preferred Securities with aggregate liquidation amounts equal to
the exchangeable aggregate principal amount.
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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