Exhibit 4.7
================================================================================
COMMUNITY FINANCIAL GROUP, INC.,
AS ISSUER
INDENTURE
DATED AS OF SEPTEMBER 7, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ BANK AND TRUST COMPANY, OF CONNECTICUT, NATIONAL
ASSOCIATION,
AS TRUSTEE
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
DUE 2030
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I. DEFINITIONS .................................................. 1
Section 1.1. Definitions ........................................... 1
ARTICLE II. DEBT SECURITIES ............................................. 8
Section 2.1. Authentication and Dating ............................. 8
Section 2.2. Form of Trustee's Certificate of Authentication ....... 8
Section 2.3. Form and Denomination of Debt Securities .............. 9
Section 2.4. Execution of Debt Securities .......................... 9
Section 2.5. Exchange and Registration of Transfer of Debt
Securities ............................................ 9
Section 2.6. Mutilated, Destroyed, Lost or Stolen Debt Securities .. 11
Section 2.7. Temporary Debt Securities ............................. 11
Section 2.8. Payment of Interest and Additional Interest ........... 12
Section 2.9. Cancellation of Debt Securities Paid, etc ............. 13
Section 2.10. Computation of Interest ............................... 13
Section 2.11. Extension of Interest Payment Period .................. 13
Section 2.12. CUSIP Numbers ......................................... 14
ARTICLE III. PARTICULAR COVENANTS OF THE COMPANY ........................ 14
Section 3.1. Payment of Principal, Premium and Interest; Agreed
Treatment of the Debt Securities ...................... 14
Section 3.2. Offices for Notices and Payments, etc ................. 15
Section 3.3. Appointments to Fill Vacancies in Trustee's Office .... 15
Section 3.4. Provision as to Paying Agent .......................... 15
Section 3.5. Certificate to Trustee ................................ 16
Section 3.6. Additional Sums ....................................... 16
Section 3.7. Compliance with Consolidation Provisions .............. 17
Section 3.8. Limitation on Dividends ............................... 17
Section 3.9. Covenants as to the Trust ............................. 17
ARTICLE IV. SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND
THE TRUSTEE ................................................. 18
Section 4.1. Securityholders' Lists ................................ 18
Section 4.2. Preservation and Disclosure of Lists .................. 18
ARTICLE V. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF
DEFAULT ...................................................... 19
Section 5.1. Events of Default ..................................... 19
Section 5.2. Payment of Debt Securities on Default; Suit Therefor .. 20
Section 5.3. Application of Moneys Collected by Trustee ............ 22
Section 5.4. Proceedings by Securityholders ........................ 22
Section 5.5. Proceedings by Trustee ................................ 23
Section 5.6. Remedies Cumulative and Continuing; Delay or Omission
Not a Waiver .......................................... 23
Section 5.7. Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders ........................... 23
i
Section 5.8. Notice of Defaults .................................... 24
Section 5.9. Undertaking to Pay Costs .............................. 24
ARTICLE VI. CONCERNING THE TRUSTEE ...................................... 24
Section 6.1. Duties and Responsibilities of Trustee ................ 24
Section 6.2. Reliance on Documents, Opinions, etc .................. 25
Section 6.3. No Responsibility for Recitals, etc ................... 26
Section 6.4. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Debt Securities ........... 26
Section 6.5. Moneys to be Held in Trust ............................ 27
Section 6.6. Compensation and Expenses of Trustee .................. 27
Section 6.7. Officers' Certificate as Evidence ..................... 27
Section 6.8. Eligibility of Trustee ................................ 28
Section 6.9. Resignation or Removal of Trustee ..................... 28
Section 6.10. Acceptance by Successor Trustee ....................... 29
Section 6.11. Succession by Merger, etc ............................. 30
Section 6.12. Authenticating Agents ................................. 30
ARTICLE VII. CONCERNING THE SECURITYHOLDERS ............................. 31
Section 7.1. Action by Securityholders ............................. 31
Section 7.2. Proof of Execution by Securityholders ................. 31
Section 7.3. Who Are Deemed Absolute Owners ........................ 32
Section 7.4. Debt Securities Owned by Company Deemed Not
Outstanding ........................................... 32
Section 7.5. Revocation of Consents; Future Holders Bound .......... 32
ARTICLE VIII. SECURITYHOLDERS' MEETINGS ................................. 33
Section 8.1. Purposes of Meetings .................................. 33
Section 8.2. Call of Meetings by Trustee ........................... 33
Section 8.3. Call of Meetings by Company or Securityholders ........ 33
Section 8.4. Qualifications for Voting ............................. 33
Section 8.5. Regulations ........................................... 33
Section 8.6. Voting ................................................ 34
Section 8.7. Quorum; Actions ....................................... 34
ARTICLE IX. SUPPLEMENTAL INDENTURES ..................................... 35
Section 9.1. Supplemental Indentures without Consent of
Securityholders ....................................... 35
Section 9.2. Supplemental Indentures with Consent of
Securityholders ....................................... 36
Section 9.3. Effect of Supplemental Indentures ..................... 37
Section 9.4. Notation on Debt Securities ........................... 37
Section 9.5. Evidence of Compliance of Supplemental Indenture to be
Furnished to Trustee .................................. 37
ARTICLE X. REDEMPTION OF SECURITIES ..................................... 37
Section 10.1. Optional Redemption ................................... 37
Section 10.2. Special Event Redemption .............................. 37
Section 10.3. Notice of Redemption; Selection of Debt Securities .... 38
Section 10.4. Payment of Debt Securities Called for Redemption ...... 38
ii
ARTICLE XI. CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE ........... 39
Section 11.1. Company May Consolidate, etc., on Certain Terms ....... 39
Section 11.2. Successor Entity to be Substituted .................... 39
Section 11.3. Opinion of Counsel to be Given to Trustee ............. 40
ARTICLE XII. SATISFACTION AND DISCHARGE OF INDENTURE .................... 40
Section 12.1. Discharge of Indenture ................................ 40
Section 12.2. Deposited Moneys to be Held in Trust by Trustee ....... 40
Section 12.3. Paying Agent to Repay Moneys Held ..................... 41
Section 12.4. Return of Unclaimed Moneys ............................ 41
ARTICLE XIII. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS ................................................. 41
Section 13.1. Indenture and Debt Securities Solely Corporate
Obligations ........................................... 41
ARTICLE XIV. MISCELLANEOUS PROVISIONS ................................... 41
Section 14.1. Successors ............................................ 41
Section 14.2. Official Acts by Successor Entity ..................... 41
Section 14.3. Surrender of Company Powers ........................... 41
Section 14.4. Addresses for Notices, etc ............................ 41
Section 14.5. Governing Law ......................................... 42
Section 14.6. Evidence of Compliance with Conditions Precedent ...... 42
Section 14.7. Non-Business Days ..................................... 42
Section 14.8. Table of Contents, Headings, etc ...................... 42
Section 14.9. Execution in Counterparts ............................. 42
Section 14.10. Separability .......................................... 42
Section 14.11. Assignment ............................................ 43
Section 14.12. Acknowledgment of Rights .............................. 43
ARTICLE XV. SUBORDINATION OF DEBT SECURITIES ............................ 43
Section 15.1. Agreement to Subordinate .............................. 43
Section 15.2. Default on Senior Indebtedness ........................ 43
Section 15.3. Liquidation, Dissolution, Bankruptcy .................. 44
Section 15.4. Subrogation ........................................... 45
Section 15.5. Trustee to Effectuate Subordination ................... 45
Section 15.6. Notice by the Company ................................. 45
Section 15.7. Rights of the Trustee; Holders of Senior
Indebtedness .......................................... 46
Section 15.8. Subordination May Not Be Impaired ..................... 46
Exhibit A Form of Junior Subordinated Deferrable Interest Debenture
iii
THIS INDENTURE, dated as of September 7, 2000, between Community Financial
Group, Inc., an Arkansas corporation (hereinafter sometimes called the
"Company"), and State Street Bank and Trust Company of Connecticut, National
Association, a national banking association organized under the laws of the
United States of America, as debt securities trustee (hereinafter sometimes
called the "Trustee"),
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the issuance of its 10.60% Junior Subordinated Deferrable Interest Debentures
due 2030 (the "Debt Securities") under this Indenture to provide, among other
things, for the execution and authentication, delivery and administration
thereof, the Company has duly authorized the execution of this Indenture; and
WHEREAS, all acts and things necessary to make this Indenture a valid
agreement according to its terms, have been done and performed;
NOW, THEREFORE, This Indenture Witnesseth:
In consideration of the premises, and the purchase of the Debt Securities
by the holders thereof, the Company covenants and agrees with the Trustee for
the equal and proportionate benefit of the respective holders from time to time
of the Debt Securities as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. DEFINITIONS. The terms defined in this Section 1.1 (except as
herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section 1.1. All accounting
terms used herein and not expressly defined shall have the meanings assigned to
such terms in accordance with generally accepted accounting principles and the
term "generally accepted accounting principles" means such accounting principles
as are generally accepted in the United States at the time of any computation.
The words "herein," "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision.
"Additional Interest" means interest, if any, that shall accrue on any
interest on the Debt Securities the payment of which has not been made on the
applicable Interest Payment Date and which shall accrue at the Interest Rate,
compounded semi-annually (to the extent permitted by law).
"Additional Sums" has the meaning set forth in Section 3.6.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Authenticating Agent" means any agent or agents of the Trustee which at
the time shall be appointed and acting pursuant to Section 6.12.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or state
law for the relief of debtors.
"Board of Directors" means the board of directors or the executive
committee or any other duly authorized designated officers of the Company.
1
"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 and delivered to the Trustee.
"Business Day" means any day other than a Saturday, Sunday or any other day
on which banking institutions in New York City or Hartford, Connecticut are
permitted or required by any applicable law to close.
"Capital Securities" means undivided beneficial interests in the assets of
Community Financial Statutory Trust I which rank pari passu with Common
Securities issued by the Trust; provided, however, that upon the occurrence of
an Event of Default (as defined in the Declaration), the rights of holders of
such Common Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights of holders
of such Capital Securities.
"Capital Securities Guarantee" means the guarantee agreement that the
Company enters into with State Street Bank and Trust Company of Connecticut,
National Association, as guarantee trustee, or other Persons that operates
directly or indirectly for the benefit of holders of Capital Securities of the
Trust.
"Capital Treatment Event" means the receipt by the Company of an opinion of
counsel experienced in such matters that, as a result of the occurrence of any
amendment to, or change (including any announced prospective change) in, the
laws of the United States or any political subdivision thereof or therein, or as
the result of any official or administrative pronouncement or action or decision
interpreting or applying such laws, rules or regulations, which amendment or
change is effective or which pronouncement, action or decision is announced on
or after the date of issuance of the Debt Securities, there is more than an
insubstantial risk that the Company will not be entitled to treat an amount
equal to the aggregate Liquidation Amount of the Debt Securities as "Tier 1
Capital" (or the then equivalent thereof) for purposes of the capital adequacy
guidelines of the Federal Reserve, as then in effect and applicable to the
Company; provided, however, that the inability of the Company to treat all or
any portion of the Liquidation Amount of the Debt Securities as Tier 1 Capital
shall not constitute the basis for a Capital Treatment Event if such inability
results from the Company having cumulative preferred stock, minority interests
in consolidated subsidiaries, or any other class of security or interest which
the Federal Reserve now or may hereafter accord Tier 1 Capital treatment in
excess of the amount which may qualify for treatment as Tier 1 Capital under
applicable capital adequacy guidelines for the Federal Reserve; provided
further, however, that the distribution of Debt Securities in connection with
the dissolution of the Trust shall not in and of itself constitute a Capital
Treatment Event unless such dissolution shall have occurred in connection with a
Tax Event or an Investment Company Event.
"Certificate" means a certificate signed by any one of the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company.
"Common Securities" means undivided beneficial interests in the assets of
the Trust which rank pari passu with Capital Securities issued by the Trust;
provided, however, that upon the occurrence of an Event of Default (as defined
in the Declaration), the rights of holders of such Common Securities to payment
in respect of distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights of holders of such Capital Securities.
"Company" means Community Financial Group, Inc., an Arkansas corporation,
and, subject to the provisions of Article XI, shall include its successors and
assigns.
"Comparable Treasury Issue" means with respect to any Special Redemption
Date the United States Treasury security selected by the Quotation Agent as
having a maturity comparable to the Remaining Life that would be utilized, at
the time of selection and in accordance with customary financial
2
practice, in pricing new issues of corporate debt securities of comparable
maturity to the Remaining Life. If no United States Treasury security has a
maturity which is within a period from three months before to three months after
September 7, 2010, the two most closely corresponding United States Treasury
securities, as selected by the Quotation Agent, shall be used as the Comparable
Treasury Issue, and the Treasury Rate shall be interpolated or extrapolated on a
straight-line basis, rounding to the nearest month using such securities.
"Comparable Treasury Price" means (a) the average of five Reference
Treasury Dealer Quotations for such Special Redemption Date, after excluding the
highest and lowest such Reference Treasury Dealer Quotations, or (b) if the
Quotation Agent obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Custodian" means any receiver, trustee, assignee, liquidator, or similar
official under any Bankruptcy Law.
"Debt Security" or "Debt Securities" has the meaning stated in the first
recital of this Indenture.
"Debt Security Register" has the meaning specified in Section 2.5.
"Declaration" means the Amended and Restated Declaration of Trust of the
Trust, as amended or supplemented from time to time.
"Default" means any event, act or condition that with notice or lapse of
time, or both, would constitute an Event of Default.
"Defaulted Interest" has the meaning set forth in Section 2.8.
"Event of Default" means any event specified in Section 5.1, continued for
the period of time, if any, and after the giving of the notice, if any, therein
designated.
"Extension Period" has the meaning set forth in Section 2.11.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Indenture" means this instrument as originally executed or, if amended or
supplemented as herein provided, as so amended or supplemented, or both.
"Institutional Trustee" has the meaning set forth in the Declaration.
"Interest Payment Date," means each March 7 and September 7 during the term
of this Indenture.
"Interest Rate" means 10.60%.
"Investment Company Event" means the receipt by the Company and the Trust
of an opinion of counsel experienced in such matters to the effect that, as a
result of the occurrence of a change in law or regulation or written change
(including any announced prospective change) in interpretation or application of
law or regulation by any legislative body, court, governmental agency or
regulatory authority, there is more than an insubstantial risk that the 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 or prospective
change becomes effective or would become effective, as the case may be, on or
after the date of the issuance of the Debt Securities.
"Liquidation Amount" means the stated amount of $ 1,000 per Trust Security.
3
"Maturity Date" means September 7, 2030.
"Officers' Certificate" means a certificate signed by the [Chairman of the
Board, the Vice Chairman, the President, any Managing Director or any Vice
President, and by the Treasurer, an Assistant Treasurer, the Comptroller, an
Assistant Comptroller, the Secretary or an Assistant Secretary] of the Company,
and delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 14.6 if and to the extent required by the provisions of
such Section.
"Opinion of Counsel" means an opinion in writing signed by legal counsel,
who may be an employee of or counsel to the Company, or may be other counsel
reasonably satisfactory to the Trustee. Each such opinion shall include the
statements provided for in Section 14.6 if and to the extent required by the
provisions of such Section.
The term "outstanding," when used with reference to Debt Securities, means,
subject to the provisions of Section 7.4, as of any particular time, all Debt
Securities authenticated and delivered by the Trustee or the Authenticating
Agent under this Indenture, except:
(a) Debt Securities theretofore canceled by the Trustee or the
Authenticating Agent or delivered to the Trustee for cancellation;
(b) Debt Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or 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 Debt Securities, or portions thereof, are to be
redeemed prior to maturity thereof, notice of such redemption shall have
been given as provided in Article XIV or provision satisfactory to the
Trustee shall have been made for giving such notice;
(c) Debt Securities paid pursuant to Section 2.6 or in lieu of or in
substitution for which other Debt Securities shall have been authenticated
and delivered pursuant to the terms of Section 2.6 unless proof
satisfactory to the Company and the Trustee is presented that any such Debt
Securities are held by bona fide holders in due course; and
(d) Debt Securities held in accordance with Section 7.4 hereof.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Security" of any particular Debt Security means every previous
Debt Security evidencing all or a portion of the same debt as that evidenced by
such particular Debt Security; and, for the purposes of this definition, any
Debt Security authenticated and delivered under Section 2.6 in lieu of a lost,
destroyed or stolen Debt Security shall be deemed to evidence the same debt as
the lost, destroyed or stolen Debt Security.
"Primary Treasury Dealer" means either a nationally recognized primary
United States Government securities dealer or an entity of nationally recognized
standing in matters pertaining to the quotation of treasury securities that is
reasonably acceptable to the Company and the Trustee.
"Principal Office of the Trustee," or other similar term, means the office
of the Trustee, at which at any particular time its corporate trust business
shall be principally administered, which at the time of
4
the execution of this Indenture shall be ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Quotation Agent" means State Street Bank and Trust Company or its
designee, and its successors; provided, however, that if the foregoing shall
cease to be a Primary Treasury Dealer, the Company shall substitute therefor
another Primary Treasury Dealer.
"Redemption Date" has the meaning set forth in Section 10.1.
"Redemption Price" means the price set forth in the following table for any
Redemption Date that occurs within the twelve-month period beginning in the
relevant year indicated below, expressed as the percentage of the principal
amount of the Debt Securities being redeemed:
Year Beginning Percentage
-------------- ----------
September 7, 2010 105.300%
September 7, 2011 104.770%
September 7, 2012 104.240%
September 7, 2013 103.710%
September 7, 2014 103.180%
September 7, 2015 102.650%
September 7, 2016 102.120%
September 7, 2017 101.590%
September 7, 2018 101.060%
September 7, 2019 100.530%
September 7, 2020 and after 100.000%
plus accrued and unpaid interest on such Debt Securities to the Redemption
Date.
"Reference Treasury Dealer" means (i) the Quotation Agent and (ii) any
other Primary Treasury Dealer selected by the Trustee after consultation with
the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Quotation Agent, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) quoted in
writing to the Quotation Agent by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such Redemption Date.
"Remaining Life" means, with respect to any Debt Security, the period from
the Special Redemption Date for such Debt Security to September 7, 2010.
"Responsible Officer" means, with respect to the Trustee, any officer
within the Principal Office of the Trustee, including any vice-president, any
assistant vice-president, any secretary, any assistant
5
secretary, the treasurer, any assistant treasurer, any trust officer or other
officer of the Principal Trust Office of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended from time to
time or any successor legislation.
"Securityholder," "holder of Debt Securities," or other similar terms,
means any Person in whose name at the time a particular Debt Security is
registered on the register kept by the Company or the Trustee for that purpose
in accordance with the terms hereof.
"Senior Indebtedness" means, with respect to the Company, (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of the
Company for money borrowed and (B) indebtedness evidenced by securities,
debentures, notes, bonds or other similar instruments issued by the Company;
(ii) all capital lease obligations of the Company; (iii) all obligations of the
Company issued or assumed as the deferred purchase price of property, all
conditional sale obligations of the Company and all obligations of the Company
under any title retention agreement (but excluding trade accounts payable
arising in the ordinary course of business); (iv) all obligations of the Company
for the reimbursement of any letter of credit, any banker's acceptance, any
security purchase facility, any repurchase agreement or similar arrangement, any
interest rate swap, any other hedging arrangement, any obligation under options
or any similar credit or other transaction; (v) all obligations of the type
referred to in clauses (i) through (iv) above of other Persons for the payment
of which the Company is responsible or liable as obligor, guarantor or
otherwise; and (vi) all obligations of the type referred to in clauses (i)
through (v) above of other Persons secured by any lien on any property or asset
of the Company (whether or not such obligation is assumed by the Company),
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 or pari passu in right of payment to the Debt Securities, except for
(1) any indebtedness between or among the Company and any non-financial
institution Affiliate of the Company and (2) Debt Securities issued pursuant to
this Indenture and guarantees in respect of such Debt Securities. Senior
Indebtedness shall continue to be Senior Indebtedness and be entitled to the
subordination provisions irrespective of any amendment, modification or waiver
of any term of such Senior Indebtedness.
"Special Event" means any of a Capital Treatment Event, an Investment
Company Event or a Tax Event.
"Special Redemption Date" has the meaning set forth in Section 10.2.
"Special Redemption Price" means (a) if the Special Redemption Date is
before September 7, 2010, the greater of (i) 100% of the principal amount of the
Debt Securities, plus accrued and unpaid interest on the Debt Securities to such
Special Redemption Date, or (ii) as determined by a Quotation Agent, the sum of
(A) the present value of the principal amount of the Debt Securities set forth
in the table under the definition of "Redemption Price" for the September 7,
2010 Redemption Date and the present value of interest payable on the Debt
Securities from such Special Redemption Date to September 7, 2010 (the
"Remaining Life"), each discounted to the Special Redemption Date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months at
the Treasury Rate), plus (B) accrued and unpaid interest on the Debt Securities
to such Special Redemption Date, or (b) if the Special Redemption Date is on or
after September 7, 2010, the price for the Debt Securities set forth in the
table under the definition of "Redemption Price" for such Special Redemption
Date.
6
"Subsidiary" means with respect to any Person, (i) any corporation at least
a majority of the outstanding voting stock of which is owned, directly or
indirectly, by such Person or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries, (ii) any general partnership, joint
venture or similar entity, at least a majority of the outstanding partnership or
similar interests of which shall at the time be owned by such Person, or by one
or more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries and (iii) any limited partnership of which such Person or any of
its Subsidiaries is a general partner. For the purposes of this definition,
"voting stock" means shares, interests, participations or other equivalents in
the equity interest (however designated) in such Person having ordinary voting
power for the election of a majority of the directors (or the equivalent) of
such Person, other than shares, interests, participations or other equivalents
having such power only by reason of the occurrence of a contingency.
"Tax Event" means the receipt by the Company and the 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 (including any private letter ruling, technical
advice memorandum, field service advice, regulatory procedure, notice or
announcement, including any notice or announcement of intent to adopt such
procedures or regulations (an "Administrative Action")) or judicial decision
interpreting or applying such laws or regulations, regardless of whether such
Administrative Action or judicial decision is issued to or in connection with a
proceeding involving the Company or the Trust and whether or not subject to
review or appeal, which amendment, clarification, change, Administrative Action
or decision is enacted, promulgated or announced, in each case on or after the
date of issuance of the Debt Securities, there is more than an insubstantial
risk that: (i) the Trust is, or will be within 90 days of the date of such
opinion, subject to United States federal income tax with respect to income
received or accrued on the Debt Securities; (ii) interest payable by the Company
on the Debt Securities is not, or within 90 days of the date of such opinion,
will not be, deductible by the Company, in whole or in part, for United States
federal income tax purposes; or (iii) the Trust is, or will be within 90 days of
the date of such opinion, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
"Treasury Rate" means (i) the yield, under the heading which represents the
average for the week immediately prior to the date of calculation, appearing in
the most recently published statistical release designated H.15 (519) or any
successor publication which is published weekly by the Federal Reserve and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Remaining Life (if no maturity is within three
months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Remaining Life shall be determined
and the Treasury Rate shall be interpolated or extrapolated from such yields on
a straight-line basis, rounding to the nearest month) or (ii) if such release
(or any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such Special Redemption Date. The Treasury Rate shall be calculated by the
Quotation Agent on the third Business Day preceding the Special Redemption Date.
"Trust" shall mean Community Financial Statutory Trust I, a Connecticut
statutory trust, or any other similar trust created for the purpose of issuing
Capital Securities in connection with the issuance of Debt Securities under this
Indenture, of which the Company is the sponsor.
"Trust Securities" means Common Securities and Capital Securities of the
Trust.
7
"Trustee" means the Person identified as "Trustee" in the first paragraph
hereof, and, subject to the provisions of Article VI hereof, shall also include
its successors and assigns as Trustee hereunder.
ARTICLE II.
DEBT SECURITIES
SECTION 2.1. AUTHENTICATION AND DATING. Upon the execution and delivery of
this Indenture, or from time to time thereafter, Debt Securities in an aggregate
principal amount not in excess of $3,093,000 may be executed and delivered by
the Company to the Trustee for authentication, and the Trustee shall thereupon
authenticate and make available for delivery said Debt Securities to or upon the
written order of the Company, signed by [its Chairman of the Board of Directors,
Vice Chairman, the President, one of its Managing Directors or one of its Vice
Presidents and by its Secretary, any Assistant Secretary, Treasurer or any
Assistant Treasurer], without any further action by the Company hereunder. In
authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the
Trustee shall be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon:
(a) a copy of any Board Resolution or Board Resolutions relating thereto
and, if applicable, an appropriate record of any action taken pursuant to such
resolution, in each case certified by the Secretary or an Assistant Secretary of
the Company as the case may be; and
(b) an Opinion of Counsel prepared in accordance with Section 14.6 which
shall also state:
(1) that such Debt Securities, when authenticated and delivered by the
Trustee and issued by the Company in each case in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company
subject to or limited by applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, moratorium and other
statutory or decisional laws relating to or affecting creditors'
rights or the reorganization of financial institutions (including,
without limitation, preference and fraudulent conveyance or transfer
laws), heretofore or hereafter enacted or in effect, affecting the
rights of creditors generally; and
(2) that all laws and requirements in respect of the execution and
delivery by the Company of the Debt Securities, have been complied
with and that authentication and delivery of the Debt Securities by
the Trustee will not violate the terms of this Indenture.
The Trustee shall have the right to decline to authenticate and deliver any
Debt Securities under this Section if the Trustee, being advised in writing by
counsel, determines that such action may not lawfully be taken or if a
Responsible Officer of the Trustee in good faith shall determine that such
action would expose the Trustee to personal liability to existing holders.
The definitive Debt Securities shall be typed, printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Debt Securities, as evidenced by
their execution of such Debt Securities.
SECTION 2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The Trustee's
certificate of authentication on all Debt Securities shall be in substantially
the following form:
8
This is one of the Debt Securities referred to in the within-mentioned
Indenture.
State Street Bank and Trust Company of Connecticut, National Association,
as Trustee
By
---------------------------------
Authorized Signer
SECTION 2.3. FORM AND DENOMINATION OF DEBT SECURITIES. The Debt Securities
shall be in registered, certificated form without coupons and in minimum
denominations of $500,000 and any multiple of $1,000 in excess thereof. Any
attempted transfer of the Debt Securities in a block having an aggregate
principal amount of less than $500,000 shall be deemed to be voided and of no
legal effect whatsoever. Any such purported transferee shall be deemed not to be
a holder of such Debt Securities for any purpose, including, but not limited to
the receipt of payments on such Debt Securities, and such purported transferee
shall be deemed to have no interest whatsoever in such Debt Securities. The Debt
Securities shall be numbered, lettered, or otherwise distinguished in such
manner or in accordance with such plans as the officers executing the same may
determine with the approval of the Trustee as evidenced by the execution and
authentication thereof.
SECTION 2.4. EXECUTION OF DEBT SECURITIES. The Debt Securities shall be
signed in the name and on behalf of the Company by the manual or facsimile
signature of its Chairman of the Board of Directors, Vice Chairman, President,
one of its Managing Directors or one of its Executive Vice Presidents, Senior
Vice Presidents or Vice Presidents and by the manual or facsimile signature of
its Secretary, one of its Assistant Secretaries, its Treasurer or one of its
Assistant Treasurers, under its corporate seal which may be affixed thereto or
printed, engraved or otherwise reproduced thereon, by facsimile or otherwise,
and which need not be attested. Only such Debt Securities as shall bear thereon
a certificate of authentication substantially in the form herein before recited,
executed by the Trustee or the Authenticating Agent by the manual signature of
an authorized signer, shall be entitled to the benefits of this Indenture or be
valid or obligatory for any purpose. Such certificate by the Trustee or the
Authenticating Agent upon any Debt Security executed by the Company shall be
conclusive evidence that the Debt Security so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture.
In case any officer of the Company who shall have signed any of the Debt
Securities shall cease to be such officer before the Debt Securities so signed
shall have been authenticated and delivered by the Trustee or the Authenticating
Agent, or disposed of by the Company, such Debt Securities nevertheless may be
authenticated and delivered or disposed of as though the Person who signed such
Debt Securities had not ceased to be such officer of the Company; and any Debt
Security may be signed on behalf of the Company by such Persons as, at the
actual date of the execution of such Debt Security, shall be the proper officers
of the Company, although at the date of the execution of this Indenture any such
person was not such an officer.
Every Debt Security shall be dated the date of its authentication.
SECTION 2.5. EXCHANGE AND REGISTRATION OF TRANSFER OF DEBT SECURITIES. The
Company shall cause to be kept, at the office or agency maintained for the
purpose of registration of transfer and for exchange as provided in Section 3.2,
a register (the "Debt Security Register") for the Debt Securities issued
hereunder in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration and transfer of all Debt
Securities as in this Article II provided. The Debt Security Register shall be
in written form or in any other form capable of being converted into written
form within a reasonable time.
9
Debt Securities to be exchanged may be surrendered at the principal
corporate trust office of the Trustee or at any office or agency to be
maintained by the Company for such purpose as provided in Section 3.2, and the
Company shall execute, the Company or the Trustee shall register and the Trustee
or the Authenticating Agent shall authenticate and make available for delivery
in exchange therefor the Debt Security or Debt Securities which the
Securityholder making the exchange shall be entitled to receive. Upon due
presentment for registration of transfer of any Debt Security at the principal
corporate trust office of the Trustee or at any office or agency of the Company
maintained for such purpose as provided in Section 3.2, the Company shall
execute, the Company or the Trustee shall register and the Trustee or the
Authenticating Agent shall authenticate and make available for delivery in the
name of the transferee or transferees a new Debt Security for a like aggregate
principal amount. Registration or registration of transfer of any Debt Security
by the Trustee or by any agent of the Company appointed pursuant to Section 3.2,
and delivery of such Debt Security, shall be deemed to complete the registration
or registration of transfer of such Debt Security.
All Debt Securities presented for registration of transfer or for exchange
or payment shall (if so required by the Company or the Trustee or the
Authenticating Agent) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee or the Authenticating Agent duly executed by the holder or his
attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Debt Securities, but the Company or the Trustee may require payment
of a sum sufficient to cover any tax, fee or other governmental charge that may
be imposed in connection therewith.
The Company or the Trustee shall not be required to exchange or register a
transfer of any Debt Security for a period of 15 days next preceding the date of
selection of Debt Securities for redemption.
Notwithstanding anything herein to the contrary, Debt Securities may not be
transferred except in compliance with the restricted securities legend set forth
below (the "Restrictive Securities Legend"), unless otherwise determined by the
Company, upon the advice of counsel expert in securities law, in accordance with
applicable law:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR ANY OTHER
APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY
(A) TO THE COMPANY, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A IN
ACCORDANCE WITH RULE 144A, (C) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION
IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S UNDER
THE SECURITIES ACT, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT THAT IS ACQUIRING THIS CAPITAL SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
10
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE INDENTURE, A
COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY. THE HOLDER OF THIS SECURITY
AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.
SECTION 2.6. MUTILATED, DESTROYED, LOST OR STOLEN DEBT SECURITIES. In case
any Debt Security shall become mutilated or be destroyed, lost or stolen, the
Company shall execute, and upon its written request the Trustee shall
authenticate and deliver, a new Debt Security bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Debt Security, or in lieu of and in substitution for the Debt Security so
destroyed, lost or stolen. In every case the applicant for a substituted Debt
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
such Debt Security and of the ownership thereof.
The Trustee may authenticate any such substituted Debt Security and deliver
the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Debt 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 connected
therewith. In case any Debt Security which has matured or is about to mature or
has been called for redemption in full shall become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a substitute Debt Security,
pay or authorize the payment of the same (without surrender thereof except in
the case of a mutilated Debt Security) if the applicant for such payment 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 case of destruction, loss
or theft, evidence satisfactory to the Company and to the Trustee of the
destruction, loss or theft of such Debt Security and of the ownership thereof.
Every substituted Debt Security issued pursuant to the provisions of this
Section 2.6 by virtue of the fact that any such Debt Security is destroyed, lost
or stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Debt Security shall be found at any
time, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debt Securities duly issued hereunder.
All Debt Securities shall be held and owned upon the express condition that, to
the extent permitted by applicable law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Debt Securities and shall preclude 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.
SECTION 2.7. TEMPORARY DEBT SECURITIES. Pending the preparation of
definitive Debt Securities, the Company may execute and the Trustee shall
authenticate and make available for delivery temporary Debt Securities that are
typed, printed or lithographed. Temporary Debt Securities shall be issuable in
any authorized denomination, and substantially in the form of the definitive
Debt Securities in lieu of which they are issued but with such omissions,
insertions and variations as may be appropriate for temporary Debt Securities,
all as may be determined by the Company. Every such temporary Debt 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 the same effect,
as the definitive Debt Securities. Without unreasonable delay the Company will
execute and deliver to the Trustee or the Authenticating Agent
11
definitive Debt Securities and thereupon any or all temporary Debt Securities
may be surrendered in exchange therefor, at the principal corporate trust office
of the Trustee or at any office or agency maintained by the Company for such
purpose as provided in Section 3.2, and the Trustee or the Authenticating Agent
shall authenticate and make available for delivery in exchange for such
temporary Debt Securities a like aggregate principal amount of such definitive
Debt Securities. Such exchange shall be made by the Company at its own expense
and without any charge therefor except that in case of any such exchange
involving a registration of transfer the Company may require payment of a sum
sufficient to cover any tax, fee or other governmental charge that may be
imposed in relation thereto. Until so exchanged, the temporary Debt Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Debt Securities authenticated and delivered hereunder.
SECTION 2.8. PAYMENT OF INTEREST AND ADDITIONAL INTEREST. Interest at the
Interest Rate and any Additional Interest on any Debt Security that is payable,
and is punctually paid or duly provided for, on any Interest Payment Date for
Debt Securities shall be paid to the Person in whose name said Debt Security (or
one or more Predecessor Securities) is registered at the close of business on
the regular record date for such interest installment except that interest and
any Additional Interest payable on the Maturity Date shall be paid to the Person
to whom principal is paid. In the event that any Debt Security or portion
thereof is called for redemption and the redemption date is subsequent to a
regular record date with respect to any Interest Payment Date and prior to such
Interest Payment Date, interest on such Debt Security will be paid upon
presentation and surrender of such Debt Security.
Any interest on any Debt Security, other than Additional Interest, that is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered holder on the relevant regular record date by virtue
of having been such holder; and such Defaulted Interest shall be paid by the
Company to the Persons in whose names such Debt Securities (or their respective
Predecessor Securities) are registered at the close of business on a special
record date for the payment of such Defaulted Interest, which shall be fixed in
the following manner: the Company shall notify the Trustee in writing at least
25 days prior to the date of the proposed payment of the amount of Defaulted
Interest proposed to be paid on each such Debt Security and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted Interest which
shall not be more than 15 nor less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such special record date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the special record date therefor to be mailed, first class postage prepaid,
to each Securityholder at its address as it appears in the Debt Security
Register, not less than 10 days prior to such special record date. Notice of the
proposed payment of such Defaulted Interest and the special record date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Debt Securities (or their respective Predecessor
Securities) are registered on such special record date and shall be no longer
payable.
The Company may make payment of any Defaulted Interest on any Debt
Securities in any other lawful manner after notice given by the Company to the
Trustee of the proposed payment method; provided, however, the Trustee in its
sole discretion deems such payment method to be practical.
12
Any interest scheduled to become payable on an Interest Payment Date
occurring during an Extension Period shall not be Defaulted Interest and shall
be payable on such other date as may be specified in the terms of such Debt
Securities.
The term "regular record date" as used in this Section shall mean the close
of business on the 15th day next preceding the applicable Interest Payment Date.
Subject to the foregoing provisions of this Section, each Debt Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debt Security shall carry the rights to interest
accrued and unpaid, and to accrue, that were carried by such other Debt
Security.
SECTION 2.9. CANCELLATION OF DEBT SECURITIES PAID, ETC. All Debt Securities
surrendered for the purpose of payment, redemption, exchange or registration of
transfer, shall, if surrendered to the Company or any paying agent, be
surrendered to the Trustee and promptly canceled by it, or, if surrendered to
the Trustee or any Authenticating Agent, shall be promptly canceled by it, and
no Debt Securities shall be issued in lieu thereof except as expressly permitted
by any of the provisions of this Indenture. All Debt Securities canceled by any
Authenticating Agent shall be delivered to the Trustee. The Trustee shall
destroy all canceled Debt Securities unless the Company otherwise directs the
Trustee in writing. If the Company shall acquire any of the Debt Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Debt Securities unless and until the same
are surrendered to the Trustee for cancellation.
SECTION 2.10. COMPUTATION OF INTEREST. The amount of interest payable for
any period will be computed on the basis of a 360-day year of twelve 30-day
months.
SECTION 2.11. EXTENSION OF INTEREST PAYMENT PERIOD. So long as no Event of
Default has occurred and is continuing, the Company shall have the right, from
time to time, and without causing an Event of Default, to defer payments of
interest on the Debt Securities by extending the interest payment period on the
Debt Securities at any time and from time to time during the term of the Debt
Securities, for up to 10 consecutive semi-annual periods (each such extended
interest payment period, an "Extension Period"), during which Extension Period
no interest shall be due and payable. No Extension Period may end on a date
other than an Interest Payment Date. At the end of any such Extension Period the
Company shall pay all interest then accrued and unpaid on the Debt Securities
(together with Additional Interest thereon); provided, however, that no
Extension Period may extend beyond the Maturity Date; provided further, however,
that during any such Extension Period, the Company shall not and shall not
permit any Affiliate to (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any of
the Company's or such Affiliate's capital stock (other than payments of
dividends or distributions to the Company) or make any guarantee payments with
respect to the foregoing or (ii) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Company or any Affiliate that rank pari passu in all respects with or junior in
interest to the Debt Securities (other than, with respect to clauses (i) or (ii)
above, (a) repurchases, redemptions or other acquisitions of shares of capital
stock of the Company in connection with any employment contract, benefit plan or
other similar arrangement with or for the benefit of one or more employees,
officers, directors or consultants, in connection with a dividend reinvestment
or stockholder stock purchase plan or in connection with the issuance of capital
stock of the Company (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into prior
to the applicable Extension Period, (b) as a result of any exchange or
conversion of any class or series of the Company's capital stock (or any capital
stock of a subsidiary of the Company) for any class or series of the Company's
capital stock or of any class or series of the Company's indebtedness for any
class or series of the Company's capital stock, (c) the purchase of
13
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (d) any declaration of a dividend in connection with any
stockholder's rights plan, or the issuance of rights, stock or other property
under any stockholder's rights plan, or the redemption or repurchase of rights
pursuant thereto, (e) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks pari passu with or junior to such stock and any
cash payments in lieu of fractional shares issued in connection therewith, or
(f) payments under the Capital Securities Guarantee). Prior to the termination
of any Extension Period, the Company may further extend such period, provided
that such period together with all such previous and further consecutive
extensions thereof shall not exceed 10 consecutive semi-annual periods, or
extend beyond the Maturity Date. Upon the termination of any Extension Period
and upon the payment of all accrued and unpaid interest and Additional Interest,
the Company may commence a new Extension Period, subject to the foregoing
requirements. No interest or Additional Interest shall be due and payable during
an Extension Period, except at the end thereof, but each installment of interest
that would otherwise have been due and payable during such Extension Period
shall bear Additional Interest to the extent permitted by applicable law. The
Company must give the Trustee notice of its election to begin such Extension
Period at least 5 Business Days prior to the earlier of (i) the date interest on
the Debt Securities would have been payable except for the election to begin
such Extension Period or (ii) the date such interest is payable, but in any
event not less than 5 Business Days prior to such record date. The Trustee shall
give notice of the Company's election to begin a new Extension Period to the
Securityholders.
SECTION 2.12. CUSIP NUMBERS. The Company in issuing the Debt Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use CUSIP numbers in notices of redemption as a convenience to Securityholders;
provided, however, that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Debt Securities
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Debt Securities, and any
such redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee in writing of any change
in the CUSIP numbers.
ARTICLE III.
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.1. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST; AGREED TREATMENT
OF THE DEBT SECURITIES.
(a) The Company covenants and agrees that it will duly and punctually pay
or cause to be paid the principal of and premium, if any, and interest and any
Additional Interest on the Debt Securities at the place, at the respective times
and in the manner provided in this Indenture and the Debt Securities. Each
installment of interest on the Debt Securities may be paid (i) by mailing checks
for such interest payable to the order of the holder of Debt Securities entitled
thereto as they appear on the registry books of the Company if a request for a
wire transfer has not been received by the Company or (ii) by wire transfer to
any account with a banking institution located in the United States designated
in writing by such Person to the paying agent no later than the related record
date. Notwithstanding the foregoing, so long as the holder of this Debt Security
is the Institutional Trustee, the payment of the principal of and interest on
this Debt Security will be made in immediately available funds at such place and
to such account as may be designated by the Institutional Trustee.
(b) The Company will treat the Debt Securities as indebtedness, and the
amounts payable in respect of the principal amount of such Debt Securities as
interest, for all United States federal income tax
14
purposes. All payments in respect of such Debt Securities will be made free and
clear of United States withholding tax to any beneficial owner thereof that has
provided an Internal Revenue Service Form W8 BEN (or any substitute or successor
form) establishing its non-United States status for United States federal income
tax purposes.
(c) The Company has no present intention to exercise its right under
Section 2.11 to defer payments of interest on the Debt Securities by commencing
an Extension Period.
(d) The Company believes that the likelihood that it would exercise its
right under Section 2.11 to defer payments of interest on the Debt Securities by
commencing an Extension Period at any time during which the Debt Securities are
outstanding is remote because of the restrictions that would be imposed on the
Company's ability to declare or pay dividends or distributions on, or to redeem,
purchase or make a liquidation payment with respect to, any of its outstanding
equity and on the Company's ability to make any payments of principal of or
interest on, or repurchase or redeem, any of its debt securities that rank pari
passu in all respects with (or junior in interest to) the Debt Securities.
SECTION 3.2. OFFICES FOR NOTICES AND PAYMENTS, ETC. So long as any of the
Debt Securities remain outstanding, the Company will maintain in Hartford,
Connecticut, an office or agency where the Debt Securities may be presented for
payment, an office or agency where the Debt Securities may be presented for
registration of transfer and for exchange as in this Indenture provided and an
office or agency where notices and demands to or upon the Company in respect of
the Debt Securities or of this Indenture may be served. The Company will give to
the Trustee written notice of the location of any such office or agency and of
any change of location thereof. Until otherwise designated from time to time by
the Company in a notice to the Trustee, or specified as contemplated by Section
2.5, such office or agency for all of the above purposes shall be the office or
agency of the Trustee. In case the Company shall fail to maintain any such
office or agency in Hartford, Connecticut, or shall fail to give such notice of
the location or of any change in the location thereof, presentations and demands
may be made and notices may be served at the principal corporate trust office of
the Trustee.
In addition to any such office or agency, the Company may from time to time
designate one or more offices or agencies outside Hartford, Connecticut, where
the Debt Securities may be presented for registration of transfer and for
exchange in the manner provided in this Indenture, and the Company may from time
to time rescind such designation, as the Company may deem desirable or
expedient; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain any such office or
agency in Hartford, Connecticut, for the purposes above mentioned. The Company
will give to the Trustee prompt written notice of any such designation or
rescission thereof.
SECTION 3.3. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.9, a Trustee, so that there
shall at all times be a Trustee hereunder.
SECTION 3.4. PROVISION AS TO PAYING AGENT.
(a) If the Company shall appoint a paying agent other than the Trustee, it
will cause such paying agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the provision of
this Section 3.4,
(1) that it will hold all sums held by it as such agent for the
payment of the principal of and premium, if any, or interest, if any,
on the Debt Securities (whether such sums have been paid to it by the
Company or by any other obligor on the Debt Securities) in trust for
the benefit of the holders of the Debt Securities;
15
(2) that it will give the Trustee prompt written notice of any failure
by the Company (or by any other obligor on the Debt Securities) to
make any payment of the principal of and premium, if any, or interest,
if any, on the Debt Securities when the same shall be due and payable;
and
(3) that it will, at any time during the continuance of any Event of
Default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent.
(b) If the Company shall act as its own paying agent, it will, on or before
each due date of the principal of and premium, if any, or interest, if any, on
the Debt Securities, set aside, segregate and hold in trust for the benefit of
the holders of the Debt Securities a sum sufficient to pay such principal,
premium or interest so becoming due and will notify the Trustee in writing of
any failure to take such action and of any failure by the Company (or by any
other obligor under the Debt Securities) to make any payment of the principal of
and premium, if any, or interest, if any, on the Debt Securities when the same
shall become due and payable.
Whenever the Company shall have one or more paying agents for the Debt
Securities, it will, on or prior to each due date of the principal of and
premium, if any, or interest, if any, on the Debt Securities, deposit with a
paying agent a sum sufficient to pay the principal, premium or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto and (unless such paying agent is the Trustee) the Company shall
promptly notify the Trustee in writing of its action or failure to act.
(c) Anything in this Section 3.4 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge with respect to the Debt Securities, or for any other reason, pay, or
direct any paying agent to pay to the Trustee all sums held in trust by the
Company or any such paying agent, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 3.4 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 3.4 is subject to
Sections 12.3 and 12.4.
SECTION 3.5. CERTIFICATE TO TRUSTEE. The Company will deliver to the
Trustee on or before 120 days after the end of each fiscal year, so long as Debt
Securities are outstanding hereunder, a Certificate stating that in the course
of the performance by the signers of their duties as officers of the Company
they would normally have knowledge of any default during such fiscal year by the
Company in the performance of any covenants contained herein, stating whether or
not they have knowledge of any such default and, if so, specifying each such
default of which the signers have knowledge and the nature and states thereof.
SECTION 3.6. ADDITIONAL SUMS. If and for so long as the Trust is the holder
of all Debt Securities and the Trust is required to pay any additional taxes,
duties, assessments or other governmental charges as a result of a Tax Event,
the Company will pay such additional amounts ("Additional Sums") on the Debt
Securities as shall be required so that the net amounts received and retained by
the Trust after paying taxes, duties, assessments or other governmental charges
will be equal to the amounts the Trust would have received if no such taxes,
duties, assessments or other governmental charges had been imposed. Whenever in
this Indenture or the Debt Securities there is a reference in any context to the
payment of principal of or interest on the Debt Securities, such mention shall
be deemed to include mention of payments of the Additional Sums provided for in
this paragraph to the extent that, in such context, Additional Sums are, were or
would be payable in respect thereof pursuant to the provisions of this paragraph
and express mention of the payment of Additional Sums (if applicable) in any
provisions hereof shall not be construed as excluding Additional Sums in those
provisions hereof where such express mention is not made; provided, however,
that the deferral of the payment of interest during an Extension
16
Period pursuant to Section 2.11 shall not defer the payment of any Additional
Sums that may be due and payable.
SECTION 3.7. COMPLIANCE WITH CONSOLIDATION PROVISIONS. The Company will
not, while any of the Debt 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 Person unless the provisions of Article XI hereof are
complied with.
SECTION 3.8. LIMITATION ON DIVIDENDS. If Debt Securities are initially
issued to the Trust or a trustee of such trust in connection with the issuance
of Trust Securities by the Trust (regardless of whether Debt Securities continue
to be held by such Trust) and (i) there shall have occurred and be continuing
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 Capital
Securities Guarantee, or (iii) the Company shall have given notice of its
election to defer payments of interest on the Debt Securities by extending the
interest payment period as provided herein and such period, or any extension
thereof, shall be continuing, then the Company shall not, and shall not allow
any Affiliate of the Company to, (x) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company's capital stock or its Affiliates' capital
stock (other than payments of dividends or distributions to the Company) or make
any guarantee payments with respect to the foregoing or (y) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Company or any Affiliate that rank pari passu in all
respects with or junior in interest to the Debt Securities (other than, with
respect to clauses (x) and (y) above, (1) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company in connection with any
employment contract, benefit plan or other similar arrangement with or for the
benefit of one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or stockholder stock purchase plan or in
connection with the issuance of capital stock of the Company (or securities
convertible into or exercisable for such capital stock) as consideration in an
acquisition transaction entered into prior to the applicable Extension Period,
if any, (2) as a result of any exchange or conversion of any class or series of
the Company's capital stock (or any capital stock of a subsidiary of the
Company) for any class or series of the Company's capital stock or of any class
or series of the Company's indebtedness for any class or series of the Company's
capital stock, (3) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, (4) any
declaration of a dividend in connection with any stockholder's rights plan, or
the issuance of rights, stock or other property under any stockholder's rights
plan, or the redemption or repurchase of rights pursuant thereto, (5) any
dividend in the form of stock, warrants, options or other rights where the
dividend stock or the stock issuable upon exercise of such warrants, options or
other rights is the same stock as that on which the dividend is being paid or
ranks pari passu with or junior to such stock and any cash payments in lieu of
fractional shares issued in connection therewith, or (6) payments under the
Capital Securities Guarantee).
SECTION 3.9. COVENANTS AS TO THE TRUST. For so long as the Trust Securities
remain outstanding, the Company shall maintain 100% ownership of the Common
Securities; provided, however, that any permitted successor of the Company under
this Indenture may succeed to the Company's ownership of such Common Securities.
The Company, as owner of the Common Securities, shall cause the Trust (a) to
remain a statutory trust, except in connection with a distribution of Debt
Securities to the holders of Trust Securities in liquidation of the Trust, the
redemption of all of the Trust Securities or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration, (b) to otherwise continue
to be classified as a grantor trust for United States federal income tax
purposes and (c) to cause each holder of Trust Securities to be treated as
owning an undivided beneficial interest in the Debt Securities.
17
ARTICLE IV.
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 4.1. SECURITYHOLDERS' LISTS. The Company covenants and agrees that
it will furnish or caused to be furnished to the Trustee:
(a) on each regular record date for the Debt Securities, a list, in such
form as the Trustee may reasonably require, of the names and addresses of the
Securityholders of the Debt Securities as of such record date; and
(b) at such other times 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;
except that no such lists need be furnished under this Section 4.1 so long as
the Trustee is in possession thereof by reason of its acting as Debt Security
registrar.
SECTION 4.2. PRESERVATION AND DISCLOSURE OF LISTS.
(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
Debt Securities (1) contained in the most recent list furnished to it as
provided in Section 4.1 or (2) received by it in the capacity of Debt Securities
registrar (if so acting) hereunder. The Trustee may destroy any list furnished
to it as provided in Section 4.1 upon receipt of a new list so furnished.
(b) In case three or more holders of Debt Securities (hereinafter referred
to as "applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Debt Security for a period
of at least 6 months preceding the date of such application, and such
application states that the applicants desire to communicate with other holders
of Debt Securities with respect to their rights under this Indenture or under
such Debt Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall
within 5 Business Days after the receipt of such application, at its election,
either:
(1) afford such applicants access to the information preserved at the
time by the Trustee in accordance with the provisions of subsection
(a) of this Section 4.2, or
(2) inform such applicants as to the approximate number of holders of
Debt Securities whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 4.2, and as to the approximate cost
of mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Securityholder whose name and address appear in the information
preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 4.2 a copy of the form of proxy or other
communication which is specified in such request with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within
five days after such tender, the Trustee shall mail to such applicants and file
with the Securities and Exchange Commission, if permitted or required by
applicable law, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the
18
best interests of the holders of all Debt Securities, as the case may be, or
would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If said Commission, as permitted or required by
applicable law, after opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order refusing to sustain any of
such objections or if, after the entry of an order sustaining one or more of
such objections, said Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every holder of Debt Securities, by receiving and holding the
same, agrees with Company and the Trustee that neither the Company nor the
Trustee nor any paying agent shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the holders
of Debt Securities in accordance with the provisions of subsection (b) of this
Section 4.2, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under said subsection (b).
ARTICLE V.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
UPON AN EVENT OF DEFAULT
SECTION 5.1. EVENTS OF DEFAULT. "Event of Default," wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any Court or
any order, rule or regulation of any administrative or governmental body):
(a) the Company defaults in the payment of any interest upon any Debt
Security when it becomes due and payable, and fails to cure 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; or
(b) the Company defaults in the payment of all or any part of the principal
of (or premium, if any, on) any Debt Securities as and when the same shall
become due and payable either at maturity, upon redemption (including redemption
for any sinking fund), by declaration of acceleration or otherwise; or
(c) the Company defaults in the performance of, or breaches, any of its
covenants or agreements in this Indenture or in the terms of the Debt Securities
established as contemplated in this Indenture (other than a covenant or
agreement a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such default or breach for
a period of 60 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the holders
of at least 25% in aggregate principal amount of the outstanding Debt
Securities, a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default" hereunder;
or
(d) a court of competent jurisdiction shall enter a decree or order for
relief in respect of the Company in an involuntary case under any applicable
bankruptcy, insolvency, reorganization or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or for any substantial part of
its property, or ordering the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
19
(e) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency, reorganization or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary case
under any such law, or shall consent to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Company or of any substantial part of its property, or
shall make any general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due; or
(f) the Trust shall have voluntarily or involuntarily liquidated,
dissolved, wound-up its business or otherwise terminated its existence except in
connection with (i) the distribution of the Debt Securities to holders of such
Trust Securities in liquidation of their interests in the Trust, (ii) the
redemption of all of the outstanding Trust Securities or (iii) certain mergers,
consolidations or amalgamations, each as permitted by the Declaration.
If an Event of Default occurs and is continuing with respect to the Debt
Securities, then, and in each and every such case, unless the principal of the
Debt 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 Debt
Securities then outstanding hereunder, by notice in writing to the Company (and
to the Trustee if given by Securityholders), may declare the entire principal of
the Debt Securities and the interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the condition that if, at
any time after the principal of the Debt 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 Company
shall pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Debt Securities and the principal of and
premium, if any, on the Debt Securities which shall have become due otherwise
than by acceleration (with interest upon such principal and premium, if any, and
Additional Interest) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and all other amounts due to the Trustee pursuant
to Section 6.6, and if any and all Events of Default under this Indenture, other
than the non-payment of the principal of or premium, if any, on Debt Securities
which shall have become due by acceleration, shall have been cured, waived or
otherwise remedied as provided herein -- then and in every such case the holders
of a majority in aggregate principal amount of the Debt Securities then
outstanding, by written notice to the Company and to the Trustee, may waive all
defaults and rescind and annul such declaration and its consequences, but no
such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right 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,
the Trustee and the holders of the Debt Securities shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the Trustee and the holders of the Debt
Securities shall continue as though no such proceeding had been taken.
SECTION 5.2. PAYMENT OF DEBT SECURITIES ON DEFAULT; SUIT THEREFOR. The
Company covenants that (a) in case default shall be made in the payment of any
installment of interest upon any of the Debt Securities as and when the same
shall become due and payable, and such default shall have continued for a period
of 30 days, or (b) in case default shall be made in the payment of the principal
of or premium, if any, on any of the Debt Securities as and when the same shall
have become due and payable, whether at maturity of the Debt Securities or upon
redemption or by declaration of acceleration or
20
otherwise -- then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Debt Securities the whole amount
that then shall have become due and payable on all Debt Securities for principal
and premium, if any, or interest, or both, as the case may be, with Additional
Interest accrued on the Debt Securities (to the extent that payment of such
interest is enforceable under applicable law and, if the Debt Securities are
held by the Trust or a trustee of such Trust, without duplication of any other
amounts paid by the Trust or a trustee in respect thereof); and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including a reasonable compensation to the Trustee, its
agents, attorneys and counsel, and any other amounts due to the Trustee under
Section 6.6. In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any actions 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 any other obligor on such
Debt Securities and collect in the manner provided by law out of the property of
the Company or any other obligor on such Debt Securities wherever situated the
moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Debt Securities under
Bankruptcy Law, or in case a receiver or trustee shall have been appointed for
the property of the Company or such other obligor, or in the case of any other
similar judicial proceedings relative to the Company or other obligor upon the
Debt Securities, or to the creditors or property of the Company or such other
obligor, the Trustee, irrespective of whether the principal of the Debt
Securities shall then be due and payable as therein expressed or by declaration
of acceleration or otherwise and irrespective of whether the Trustee shall have
made any demand pursuant to the provisions of this Section 5.2, shall be
entitled and empowered, by intervention in such proceedings or otherwise,
(i) to file and prove a claim or claims for the whole amount of principal
and interest owing and unpaid in respect of the Debt Securities and,
in case of any judicial proceedings,
(ii) to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and
each predecessor Trustee, and their respective agents, attorneys and
counsel, and for reimbursement of all other amounts due to the Trustee
under Section 6.6, and of the Securityholders allowed in such judicial
proceedings relative to the Company or any other obligor on the Debt
Securities, or to the creditors or property of the Company or such
other obligor, unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Debt Securities in any election
of a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or Person
performing similar functions in comparable proceedings,
(iii) to collect and receive any moneys or other property payable or
deliverable on any such claims, and
(iv) to distribute the same after the deduction of its charges and
expenses.
Any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the Securityholders to make such payments to the Trustee,
and, in the event that the Trustee shall consent to the making of such payments
directly to the Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each predecessor
Trustee and their respective agents, attorneys and counsel, and all other
amounts due to the Trustee under Section 6.6.
21
Nothing herein contained shall be construed 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
Debt Securities or the rights of any holder thereof or to authorize the Trustee
to vote in respect of the claim of any Securityholder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under
any of the Debt Securities, may be enforced by the Trustee without the
possession of any of the Debt 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 be for the ratable benefit of the holders of
the Debt Securities.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
holders of the Debt Securities, and it shall not be necessary to make any
holders of the Debt Securities parties to any such proceedings.
SECTION 5.3. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys
collected by the Trustee pursuant to this Article V shall be applied in the
following order, at the date or dates fixed by the Trustee for the distribution
of such moneys, upon presentation of the several Debt Securities in respect of
which moneys have been collected, and stamping thereon the payment, if only
partially paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses incurred by, and reasonable
fees of, the Trustee, its agents, attorneys and counsel, and of all other
amounts due to the Trustee under Section 6.6;
Second: To the payment of all Senior Indebtedness of the Company if and to
the extent required by Article XV;
Third: To the payment of the amounts then due and unpaid upon Debt
Securities for principal (and premium, if any), and interest on the Debt
Securities, in respect of which or for the benefit of which money has been
collected, ratably, without preference or priority of any kind, according to the
amounts due on such Debt Securities for principal (and premium, if any) and
interest, respectively; and
Fourth: The balance, if any, to the Company.
SECTION 5.4. PROCEEDINGS BY SECURITYHOLDERS. No holder of any Debt Security
shall have any right to institute any suit, action or proceeding for any remedy
hereunder, unless such holder previously shall have given to the Trustee written
notice of an Event of Default with respect to the Debt Securities and unless the
holders of not less than 25% in aggregate principal amount of the Debt
Securities then outstanding shall have given the Trustee a written request to
institute such action, suit or proceeding and shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred thereby, and 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; provided, however, that no holder
of Debt Securities shall have any right to prejudice the rights of any other
holder of Debt Securities, obtain priority or preference over any other such
holder or enforce any right under this Indenture except in the manner herein
provided and for the equal, ratable and common benefit of all holders of Debt
Securities.
Notwithstanding any other provisions in this Indenture, however, the right
of any holder of any Debt Security to receive payment of the principal of,
premium, if any, and interest, on such Debt Security when due, or to institute
suit for the enforcement of any such payment, shall not be impaired or affected
without the consent of such holder and by accepting a Debt Security hereunder it
is expressly understood,
22
intended and covenanted by the taker and holder of every Debt Security with
every other such taker and holder and the Trustee, that no one or more holders
of Debt Securities shall have any right in any manner whatsoever by virtue or by
availing itself of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other Debt 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 Debt Securities. For
the protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
SECTION 5.5. PROCEEDINGS BY TRUSTEE. 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 by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this 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.
SECTION 5.6. REMEDIES CUMULATIVE AND CONTINUING; DELAY OR OMISSION NOT A
WAIVER. Except as otherwise provided in Section 2.6, all powers and remedies
given by this Article V 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 Debt
Securities, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or
otherwise established with respect to the Debt Securities, and no delay or
omission of the Trustee or of any holder of any of the Debt Securities to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 5.4, every power and remedy given by this
Article V or by law to the Trustee or to the Securityholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or
by the Securityholders.
No delay or omission of the Trustee or any Securityholder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to any Securityholder may be exercised from time to time, and as often as may
be deemed expedient, by the Trustee (in accordance with its duties under Section
6.1 hereof) or by such holder, as the case may be.
SECTION 5.7. DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY MAJORITY OF
SECURITYHOLDERS. The holders of a majority in aggregate principal amount of the
Debt Securities affected (voting as one class) 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 with respect to such Debt Securities; provided,
however, that (subject to the provisions of Section 6.1) the Trustee shall have
the right to decline to follow any such direction if the Trustee shall determine
that the action so directed would be unjustly prejudicial to the holders not
taking part in such direction or if the Trustee being advised by counsel
determines that the action or proceeding so directed may not lawfully be taken
or if a Responsible Officer of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability.
Prior to any declaration accelerating the maturity of the Debt Securities,
the holders of a majority in aggregate principal amount of the Debt Securities
at the time outstanding may on behalf of the holders of all of the Debt
Securities waive (or modify any previously granted waiver of) any past default
or Event
23
of Default, and its consequences, except a default (a) in the payment of
principal of, premium, if any, or interest on any of the Debt Securities, (b) in
respect of covenants or provisions hereof which cannot be modified or amended
without the consent of the holder of each Debt Security affected, or (c) in
respect of the covenants contained in Section 3.9; provided, however, that if
the Debt Securities are held by the 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 Liquidation Amount of Trust Securities of the Trust shall have
consented to such waiver or modification to such waiver, provided, further, that
if the consent of the holder of each outstanding Debt Security is required, such
waiver shall not be effective until each holder of the Trust Securities of the
Trust 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 Debt 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 Event of Default
or impair any right consequent thereon. Whenever any default or Event of Default
hereunder shall have been waived as permitted by this Section, said default or
Event of Default shall for all purposes of the Debt Securities and this
Indenture be deemed to have been cured and to be not continuing.
SECTION 5.8. NOTICE OF DEFAULTS. The Trustee shall, within 90 days after
the actual knowledge by a Responsible Officer of the Trustee of the occurrence
of a default with respect to the Debt Securities, mail to all Securityholders,
as the names and addresses of such holders appear upon the Debt Security
Register, notice of all defaults with respect to the Debt Securities known to
the Trustee, unless such defaults shall have been cured before the giving of
such notice (the term "defaults" for the purpose of this Section 5.8 being
hereby defined to be the events specified in clauses (a), (b), (c), (d) and (e)
of Section 5.1, not including periods of grace, if any, provided for therein;
provided, however, that, except in the case of default in the payment of the
principal of, premium, if any, or interest on any of the Debt Securities, the
Trustee shall be protected in withholding such notice if and so long as a
Responsible Officer of the Trustee in good faith determines that the withholding
of such notice is in the interests of the Securityholders.
SECTION 5.9. UNDERTAKING TO PAY COSTS. All parties to this Indenture agree,
and each holder of any Debt Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, 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; provided, however, that the provisions of
this Section 5.9 shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Securityholder, or group of Securityholders, holding in
the aggregate more than 10% in principal amount of the Debt Securities
outstanding, 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 Debt
Security against the Company on or after the same shall have become due and
payable.
ARTICLE VI.
CONCERNING THE TRUSTEE
SECTION 6.1. DUTIES AND RESPONSIBILITIES OF TRUSTEE. With respect to the
holders of Debt Securities issued hereunder, the Trustee, prior to the
occurrence of an Event of Default with respect to the Debt Securities and after
the curing or waiving of all Events of Default which may have occurred, with
respect to the Debt Securities, undertakes to perform 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 Debt Securities has occurred (which has not been
cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the
24
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.
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:
(a) prior to the occurrence of an Event of Default with respect to Debt
Securities and after the curing or waiving of all Events of Default which may
have occurred
(1) the duties and obligations of the Trustee with respect to Debt
Securities shall be determined solely by the express provisions of
this Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations with respect to the Debt
Securities as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee, and
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may 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 which 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;
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c) 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
Securityholders pursuant to Section 5.7, 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.
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 ground for believing that the repayment of
such funds or liability is not assured to it under the terms of this Indenture
or indemnity satisfactory to the Trustee against such risk is not reasonably
assured to it.
SECTION 6.2. RELIANCE ON DOCUMENTS, OPINIONS, ETC. Except as otherwise
provided in Section 6.1:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond, note,
debenture 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 an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any Board
Resolution may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
25
(c) the Trustee may consult with counsel of its selection and any advice or
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(d) 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 which may be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted 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; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the occurrence of an
Event of Default with respect to the Debt Securities (that has not been cured or
waived) to exercise with respect to Debt 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;
(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
coupon or other paper or document, unless requested in writing to do so by the
holders of not less than a majority in aggregate principal amount of the
outstanding Debt Securities affected thereby; 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 expense or liability as a condition to so
proceeding;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents (including
any Authenticating Agent) or attorneys, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed by it with due care; and
(h) with the exceptions of defaults under Sections 5.1(a) or 5.1(b), the
Trustee shall not be charged with knowledge of any Default or Event of Default
with respect to the Debt Securities unless a written notice of such Default or
Event of Default shall have been given to the Trustee by the Company or any
other obligor on the Debt Securities or by any holder of the Debt Securities.
SECTION 6.3. NO RESPONSIBILITY FOR RECITALS, ETC. The recitals contained
herein and in the Debt Securities (except in the certificate of authentication
of the Trustee or the Authenticating Agent) shall be taken as the statements of
the Company, and the Trustee and the Authenticating Agent assume no
responsibility for the correctness of the same. The Trustee and the
Authenticating Agent make no representations as to the validity or sufficiency
of this Indenture or of the Debt Securities. The Trustee and the Authenticating
Agent shall not be accountable for the use or application by the Company of any
Debt Securities or the proceeds of any Debt Securities authenticated and
delivered by the Trustee or the Authenticating Agent in conformity with the
provisions of this Indenture.
SECTION 6.4. TRUSTEE, AUTHENTICATING AGENT, PAYING AGENTS, TRANSFER AGENTS
OR REGISTRAR MAY OWN DEBT SECURITIES. The Trustee or any Authenticating Agent or
any paying agent or any transfer agent or any Debt Security registrar, in its
individual or any other capacity, may become the owner or pledgee of Debt
Securities with the same rights it would have if it were not Trustee,
Authenticating Agent, paying agent, transfer agent or Debt Security registrar.
26
SECTION 6.5. MONEYS TO BE HELD IN TRUST. Subject to the provisions of
Section 12.4, all moneys received by the Trustee or any paying agent shall,
until used or applied as herein provided, be held in trust for the purpose for
which they were received, but need not be segregated from other funds except to
the extent required by law. The Trustee and any paying agent shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company. So long as no Event of Default shall have
occurred and be continuing, all interest allowed on any such moneys shall be
paid from time to time upon the written order of the Company, signed by the
[Chairman of the Board of Directors, the President, a Managing Director, a Vice
President the Treasurer or an Assistant Treasurer] of the Company.
SECTION 6.6. COMPENSATION AND EXPENSES OF TRUSTEE. The Company covenants
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, such compensation as shall be agreed to in writing between the
Company and the Trustee (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust), and 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 willful misconduct. The Company also covenants to
indemnify each of the Trustee or any predecessor Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any and
all loss, damage, claim, liability or expense including taxes (other than taxes
based on the income of the Trustee) incurred without negligence or willful
misconduct 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. The obligations of the
Company under this Section 6.6 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 Debt 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 Debt Securities.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(d), Section 5.1(e)
or Section 5.1(f), the expenses (including the reasonable charges and expenses
of its counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the resignation or removal of
the Trustee and the defeasance or other termination of this Indenture.
Notwithstanding anything in this Indenture or any Debt Security to the
contrary, the Trustee shall have no obligation whatsoever to advance funds to
pay any principal of or interest on or other amounts with respect to the Debt
Securities or otherwise advance funds to or on behalf of the Company.
SECTION 6.7. OFFICERS' CERTIFICATE AS EVIDENCE. Except as otherwise
provided in Sections 6.1 and 6.2, 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 omitting 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 or omitted by it under the
provisions of this Indenture upon the faith thereof.
27
SECTION 6.8. ELIGIBILITY OF TRUSTEE. The Trustee hereunder 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 authorized under such laws to exercise
corporate trust powers, having (or whose obligations under this Indenture are
guaranteed by an affiliate 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 6.8 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 records 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 6.8, the Trustee shall resign immediately in
the manner and with the effect specified in Section 6.9.
SECTION 6.9. RESIGNATION OR REMOVAL OF TRUSTEE
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign by giving written notice of such resignation to the Company and by
mailing notice thereof, at the Company's expense, to the holders of the Debt
Securities at their addresses as they shall appear on the Debt Security
Register. Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee or trustees by written instrument, in duplicate,
executed by order of its 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 to the affected
Securityholders, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee, or any Securityholder
who has been a bona fide holder of a Debt Security or Debt Securities for at
least six months may, subject to the provisions of Section 5.9, 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 of the following shall occur --
(1) the Trustee shall fail to comply with the provisions of Section
6.8 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Debt Security or
Debt Securities for at least 6 months, or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.8 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 a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee 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
28
to the successor Trustee, or, subject to the provisions of Section
5.9, any Securityholder who has been a bona fide holder of a Debt
Security or Debt Securities for at least 6 months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint successor Trustee.
(c) Upon prior written notice to the Company and the Trustee, the holders
of a majority in aggregate principal amount of the Debt Securities at the time
outstanding may at any time remove the Trustee and nominate a successor Trustee,
which shall be deemed appointed as successor Trustee unless within 10 Business
Days after such nomination the Company objects thereto, in which case, or in the
case of a failure by such holders to nominate a successor Trustee, the Trustee
so removed or any Securityholder, upon the terms and conditions and otherwise as
in subsection (a) of this Section 6.9 provided, may petition any court of
competent jurisdiction for an appointment of a successor.
(d) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor Trustee as provided in
Section 6.10.
SECTION 6.10. ACCEPTANCE BY SUCCESSOR TRUSTEE. Any successor Trustee
appointed as provided in Section 6.9 shall execute, acknowledge and deliver to
the Company and to its predecessor Trustee an instrument accepting such
appointment hereunder, 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, duties
and obligations with respect to the Debt Securities of its predecessor
hereunder, with like effect as if originally named as Trustee herein; but,
nevertheless, on the written request of the Company or of the successor Trustee,
the Trustee ceasing to act shall, upon payment of any amounts then due it
pursuant to the provisions of Section 6.6, execute and deliver an instrument
transferring to such successor Trustee all the rights and powers of the Trustee
so ceasing to act and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee thereunder. Upon
request of any such successor Trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor Trustee all such rights and powers. Any Trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such Trustee to secure any amounts then due it pursuant to the provisions of
Section 6.6.
If a successor Trustee is appointed, the Company, the retiring Trustee and
the successor Trustee shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Debt Securities as to which the predecessor Trustee is not
retiring shall continue to be vested in the predecessor Trustee, and shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the Trust hereunder by more than
one Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be Trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee.
No successor Trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor Trustee shall be eligible
under the provisions of Section 6.8.
In no event shall a retiring Trustee be liable for the acts or omissions of
any successor Trustee hereunder.
29
Upon acceptance of appointment by a successor Trustee as provided in this
Section 6.10, the Company shall mail notice of the succession of such Trustee
hereunder to the holders of Debt Securities at their addresses as they shall
appear on the Debt Security Register. If the Company fails to mail such notice
within 10 Business Days after the acceptance of appointment by the successor
Trustee, the successor Trustee shall cause such notice to be mailed at the
expense of the Company.
SECTION 6.11. SUCCESSION BY MERGER, ETC. 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 all or substantially
all of the corporate trust business of the Trustee, shall be the successor of
the Trustee hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto; provided such corporation
shall be otherwise eligible and qualified under this Article.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Debt Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee, and deliver such Debt
Securities so authenticated; and in case at that time any of the Debt Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Debt Securities either in the name of any predecessor hereunder or in the
name of the successor Trustee; and in all such cases such certificates shall
have the full force which it is anywhere in the Debt Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or authenticate Debt Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 6.12. AUTHENTICATING AGENTS. There may be one or more
Authenticating Agents appointed by the Trustee upon the request of the Company
with power to act on its behalf and subject to its direction in the
authentication and delivery of Debt Securities issued upon exchange or
registration of transfer thereof as fully to all intents and purposes as though
any such Authenticating Agent had been expressly authorized to authenticate and
deliver Debt Securities; provided, however, that the Trustee shall have no
liability to the Company for any acts or omissions of the Authenticating Agent
with respect to the authentication and delivery of Debt Securities. Any such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States or of any state or territory
thereof or of the District of Columbia authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of at least
$5,000,000 and being 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 the requirements of
such authority, then for the purposes of this Section 6.12 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. If at
any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect herein specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of any Authenticating Agent, shall be the successor
of such Authenticating Agent hereunder, if such successor corporation is
otherwise eligible under this Section 6.12 without the execution or filing of
any paper or any further act on the part of the parties hereto or such
Authenticating Agent.
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
terminate the agency of any Authenticating
30
Agent with respect to the Debt Securities by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible under this Section 6.12, the
Trustee may, and upon the request of the Company shall, promptly appoint a
successor Authenticating Agent eligible under this Section 6.12, shall give
written notice of such appointment to the Company and shall mail notice of such
appointment to all holders of Debt Securities as the names and addresses of such
holders appear on the Debt Security Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all
rights, powers, duties and responsibilities with respect to the Debt Securities
of its predecessor hereunder, with like effect as if originally named as
Authenticating Agent herein.
The Company agrees to pay to any Authenticating Agent from time to time
reasonable compensation for its services. Any Authenticating Agent shall have no
responsibility or liability for any action taken by it as such in accordance
with the directions of the Trustee.
ARTICLE VII.
CONCERNING THE SECURITYHOLDERS
SECTION 7.1. ACTION BY SECURITYHOLDERS. Whenever in this Indenture it is
provided that the holders of a specified percentage in aggregate principal
amount of the Debt 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 specified percentage have joined therein may be evidenced (a) by
any instrument or any number of instruments of similar tenor executed by such
Securityholders in person or by agent or proxy appointed in writing, or (b) by
the record of such holders of Debt Securities voting in favor thereof at any
meeting of such Securityholders duly called and held in accordance with the
provisions of Article VIII, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of such Securityholders or (d)
by any other method the Trustee deems satisfactory.
If the Company shall solicit from the Securityholders any request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such Debt Securities for the
determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, 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 or revocation of the same 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
Debt Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, and for that purpose the outstanding Debt 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 6 months after the record date.
SECTION 7.2. PROOF OF EXECUTION BY SECURITYHOLDERS. Subject to the
provisions of Section 6.1, 6.2 and 8.5, proof of the execution of any instrument
by a Securityholder or his agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
ownership of Debt Securities shall be proved by the Debt Security Register or by
a certificate of the Debt Security
31
registrar. The Trustee may require such additional proof of any matter referred
to in this Section as it shall deem necessary.
The record of any Securityholders' meeting shall be proved in the manner
provided in Section 8.6.
SECTION 7.3. WHO ARE DEEMED ABSOLUTE OWNERS. Prior to due presentment for
registration of transfer of any Debt Security, the Company, the Trustee, any
Authenticating Agent, any paying agent, any transfer agent and any Debt Security
registrar may deem the Person in whose name such Debt Security shall be
registered upon the Debt Security Register to be, and may treat him as, the
absolute owner of such Debt Security (whether or not such Debt Security shall be
overdue) for the purpose of receiving payment of or on account of the principal
of, premium, if any, and interest on such Debt Security and for all other
purposes; and neither the Company nor the Trustee nor any Authenticating Agent
nor any paying agent nor any transfer agent nor any Debt Security registrar
shall be affected by any notice to the contrary. All such payments so made to
any holder for the time being or upon his order shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Debt Security.
SECTION 7.4. DEBT SECURITIES OWNED BY COMPANY DEEMED NOT OUTSTANDING. In
determining whether the holders of the requisite aggregate principal amount of
Debt Securities have concurred in any direction, consent or waiver under this
Indenture, Debt Securities which are owned by the Company or any other obligor
on the Debt Securities or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
other obligor on the Debt Securities shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided, however, that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Debt Securities which a
Responsible Officer of the Trustee actually knows are so owned shall be so
disregarded. Debt Securities so owned which have been pledged in good faith may
be regarded as outstanding for the purposes of this Section 7.4 if the pledgee
shall establish to the satisfaction of the Trustee the pledgee's right to vote
such Debt Securities and that the pledgee is not the Company or any such other
obligor or Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any such other obligor. In
the 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.
SECTION 7.5. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.1, of the taking of any action by the holders of the percentage in aggregate
principal amount of the Debt Securities specified in this Indenture in
connection with such action, any holder (in cases where no record date has been
set pursuant to Section 7.1) or any holder as of an applicable record date (in
cases where a record date has been set pursuant to Section 7.1) of a Debt
Security (or any Debt Security issued in whole or in part in exchange or
substitution therefor) the serial number of which is shown by the evidence to be
included in the Debt Securities the holders of which have consented to such
action may, by filing written notice with the Trustee at the Principal Office of
the Trustee and upon proof of holding as provided in Section 7.2, revoke such
action so far as concerns such Debt Security (or so far as concerns the
principal amount represented by any exchanged or substituted Debt Security).
Except as aforesaid any such action taken by the holder of any Debt Security
shall be conclusive and binding upon such holder and upon all future holders and
owners of such Debt Security, and of any Debt Security issued in exchange or
substitution therefor or on registration of transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon such Debt Security or
any Debt Security issued in exchange or substitution therefor.
32
ARTICLE VIII.
SECURITYHOLDERS' MEETINGS
SECTION 8.1. PURPOSES OF MEETINGS. A meeting of Securityholders may be
called at any time and from time to time pursuant to the provisions of this
Article VIII for any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any default hereunder
and its consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article V;
(b) to remove the Trustee and nominate a successor trustee pursuant to the
provisions of Article VI;
(c) to consent to the execution of an indenture or indentures supplemental
hereto pursuant to the provisions of Section 9.2; or
(d) to take any other action authorized to be taken by or on behalf of the
holders of any specified aggregate principal amount of such Debt Securities
under any other provision of this Indenture or under applicable law.
SECTION 8.2. CALL OF MEETINGS BY TRUSTEE. The Trustee may at any time call
a meeting of Securityholders to take any action specified in Section 8.1, to be
held at such time and at such place as the Trustee shall determine. Notice of
every meeting of the Securityholders, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be mailed to holders of Debt Securities affected at their
addresses as they shall appear on the Debt Securities Register and, if the
Company is not a holder of Debt Securities, to the Company. Such notice shall be
mailed not less than 20 nor more than 180 days prior to the date fixed for the
meeting.
SECTION 8.3. CALL OF MEETINGS BY COMPANY OR SECURITYHOLDERS. In case at any
time the Company pursuant to a Board Resolution, or the holders of at least 10%
in aggregate principal amount of the Debt Securities, as the case may be, then
outstanding, shall have requested the Trustee to call a meeting of
Securityholders, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such request,
then the Company or such Securityholders may determine the time and the place
for such meeting and may call such meeting to take any action authorized in
Section 8.1, by mailing notice thereof as provided in Section 8.2.
SECTION 8.4. QUALIFICATIONS FOR VOTING. To be entitled to vote at any
meeting of Securityholders a Person shall (a) be a holder of one or more Debt
Securities with respect to which the meeting is being held or (b) a Person
appointed by an instrument in writing as proxy by a holder of one or more such
Debt Securities. The only Persons who shall be entitled to be present or to
speak at any meeting of Securityholders shall be the Persons entitled to vote at
such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 8.5. REGULATIONS. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders, in regard to proof of the holding
of Debt Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit.
33
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 8.3, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 7.4, at any meeting each holder of
Debt Securities with respect to which such meeting is being held or proxy
therefor shall be entitled to one vote for each $1,000 principal amount of Debt
Securities held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Debt Security challenged as not
outstanding and ruled by the chairman of the meeting to be not outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of Debt
Securities held by him or instruments in writing as aforesaid duly designating
him as the Person to vote on behalf of other Securityholders. Any meeting of
Securityholders duly called pursuant to the provisions of Section 8.2 or 8.3 may
be adjourned from time to time by a majority of those present, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
SECTION 8.6. VOTING. The vote upon any resolution submitted to any meeting
of holders of Debt Securities with respect to which such meeting is being held
shall be by written ballots on which shall be subscribed the signatures of such
holders or of their representatives by proxy and the serial number or numbers of
the Debt Securities held or represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Securityholders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 8.2. The record
shall show the serial numbers of the Debt Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 8.7. QUORUM; ACTIONS. The Persons entitled to vote a majority in
principal amount of the Debt Securities shall constitute a quorum for a meeting
of Securityholders; provided, however, that if any action is to be taken at such
meeting with respect to a consent, waiver, request, demand, notice,
authorization, direction or other action which may be given by the holders of
not less than a specified percentage in principal amount of the Debt Securities,
the Persons holding or representing such specified percentage in principal
amount of the Debt Securities will constitute a quorum. In the absence of a
quorum within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Securityholders, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the permanent chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the permanent chairman of the meeting prior to the adjournment
of such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 8.2, except that such notice need be given
only once not less than 5 days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the Debt Securities which shall constitute a quorum.
34
Except as limited by the proviso in the first paragraph of Section 9.2, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
holders of a majority in principal amount of the Debt Securities; provided,
however, that, except as limited by the proviso in the first paragraph of
Section 9.2, any resolution with respect to any consent, waiver, request,
demand, notice, authorization, direction or other action which this Indenture
expressly provides may be given by the holders of not less than a specified
percentage in principal amount of the Debt Securities may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid only by the affirmative vote of the holders of a not less than such
specified percentage in principal amount of the Debt Securities.
Any resolution passed or decision taken at any meeting of holders of Debt
Securities duly held in accordance with this Section shall be binding on all the
Securityholders, whether or not present or represented at the meeting.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
SECTION 9.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS.
The Company, when authorized by a Board Resolution, and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto, without the consent of the Securityholders, for one or more of the
following purposes:
(a) to evidence the succession of another Person to the Company, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Company, pursuant to Article XI
hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the holders of Debt Securities
as the Board of Directors shall consider to be for the protection of the holders
of such Debt Securities, and to make the occurrence, or the occurrence and
continuance, of a default in any of such additional covenants, restrictions or
conditions a default or an Event of Default permitting the enforcement of all or
any of the several remedies provided in this Indenture as herein set forth;
provided, however, that in respect of any such additional covenant restriction
or condition such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such
default;
(c) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture; provided that any such action shall not adversely
affect the interests of the holders of the Debt Securities;
(d) to add to, delete from, or revise the terms of Debt Securities,
including, without limitation, any terms relating to the issuance, exchange,
registration or transfer of Debt Securities, including to provide for transfer
procedures and restrictions substantially similar to those applicable to the
Capital Securities as required by Section 2.5 (for purposes of assuring that no
registration of Debt Securities is required under the Securities Act of 1933, as
amended); provided, however, that any such action shall not adversely affect the
interests of the holders of the Debt Securities then outstanding (it being
understood, for purposes of this proviso, that transfer restrictions on Debt
Securities substantially similar to those that were applicable to Capital
Securities shall not be deemed to adversely affect the holders of the Debt
Securities);
35
(e) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Debt Securities and to add to or change
any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11;
(f) to make any change (other than as elsewhere provided in this paragraph)
that does not adversely affect the rights of any Securityholder in any material
respect; or
(g) to provide for the issuance of and establish the form and terms and
conditions of the Debt Securities, to establish the form of any certifications
required to be furnished pursuant to the terms of this Indenture or the Debt
Securities, or to add to the rights of the holders of Debt Securities.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section 9.1
may be executed by the Company and the Trustee without the consent of the
holders of any of the Debt Securities at the time outstanding, notwithstanding
any of the provisions of Section 9.2.
SECTION 9.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS. With
the consent (evidenced as provided in Section 7.1) of the holders of not less
than a majority in aggregate principal amount of the Debt Securities at the time
outstanding affected by such supplemental indenture (voting as a class), the
Company, when authorized by a Board Resolution, and the Trustee may from time to
time and at any time enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the holders of the Debt
Securities; provided, however, that no such supplemental indenture shall without
the consent of the holders of each Debt Security then outstanding and affected
thereby (i) change the fixed maturity of any Debt Security, or reduce the
principal amount thereof or any premium thereon, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption thereof or make the principal thereof or any interest or premium
thereon payable in any coin or currency other than that provided in the Debt
Securities, or impair or affect the right of any Securityholder to institute
suit for payment thereof or impair the right of repayment, if any, at the option
of the holder, or (ii) reduce the aforesaid percentage of Debt Securities the
holders of which are required to consent to any such supplemental indenture;
provided further, however, that if the Debt Securities are held by a 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, however, that if the
consent of the Securityholder of each outstanding Debt Security is required,
such supplemental indenture shall not be effective until each holder of the
Trust Securities shall have consented to such supplemental indenture.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders 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.
36
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, prepared by the
Company, setting forth in general terms the substance of such supplemental
indenture, to the Securityholders as their names and addresses appear upon the
Debt 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.
It shall not be necessary for the consent of the Securityholders under this
Section 9.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 9.3. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article IX, 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 Debt Securities shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and 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.
SECTION 9.4. NOTATION ON DEBT SECURITIES. Debt Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article IX may bear a notation as to any matter provided for
in such supplemental indenture. If the Company or the Trustee shall so
determine, new Debt Securities 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 and executed by the
Company, authenticated by the Trustee or the Authenticating Agent and delivered
in exchange for the Debt Securities then outstanding.
SECTION 9.5. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE
FURNISHED TO TRUSTEE. The Trustee, subject to the provisions of Sections 6.1 and
6.2, shall, in addition to the documents required by Section 14.6, receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant hereto complies with the requirements
of this Article IX. The Trustee shall receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this
Article IX is authorized or permitted by, and conforms to, the terms of this
Article IX and that it is proper for the Trustee under the provisions of this
Article IX to join in the execution thereof.
ARTICLE X.
REDEMPTION OF SECURITIES
SECTION 10.1. OPTIONAL REDEMPTION. The Company shall have the right,
subject to the receipt by the Company of prior approval from the Federal
Reserve, if then required under applicable capital guidelines or policies of the
Federal Reserve, to redeem the Debt Securities, in whole or in part, but in all
cases in a principal amount with integral multiples of $1,000, on any March 7 or
September 7 on or after September 7, 2010 (the "Redemption Date"), at the
Redemption Price.
SECTION 10.2. SPECIAL EVENT REDEMPTION. If a Special Event shall occur and
be continuing, the Company shall have the right, subject to the receipt by the
Company of prior approval from the Federal Reserve if then required under
applicable capital guidelines or policies of the Federal Reserve, to redeem the
Debt Securities in whole, but not in part, at any time, within 90 days following
the occurrence of such Special Event (the "Special Redemption Date") at the
Special Redemption Price. The Company shall appoint a Quotation Agent, which
initially shall be State Street Bank and Trust Company, for the purpose of
performing the services contemplated in, or by reference in, the definition of
Special
37
Redemption Price. Any error in the calculation of the Special Redemption Price
by the Quotation Agent or the Trustee may be corrected at any time by notice
delivered to the Company and the holders of the Debt Securities. Subject to the
corrective rights set forth above, all certificates, communications, opinions,
determinations, calculations, quotations and decisions given, expressed, made or
obtained for the purposes of the provisions relating to the payment and
calculation of the Special Redemption Price on the Debt Securities by the
Trustee or the Quotation Agent, as the case may be, shall (in the absence of
willful default, bad faith or manifest error) be final, conclusive and binding
on the holders of the Debt Securities and the Company, and no liability shall
attach (except as provided above) to the Trustee or the Quotation Agent in
connection with the exercise or non-exercise by any of them of their respective
powers, duties and discretion.
SECTION 10.3. NOTICE OF REDEMPTION; SELECTION OF DEBT SECURITIES. In case
the Company shall desire to exercise the right to redeem all, or, as the case
may be, any part of the Debt Securities, it shall cause to be mailed a notice of
such redemption at least 30 and not more than 60 days prior to the Redemption
Date or the Special Redemption Date to the holders of Debt Securities so to be
redeemed as a whole or in part at their last addresses as the same appear on the
Debt Security Register. Such mailing shall be by first class mail. The notice if
mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the holder receives such notice. In any case, failure
to give such notice by mail or any defect in the notice to the holder of any
Debt Security designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Debt Security.
Each such notice of redemption shall specify the CUSIP number, if any, of
the Debt Securities to be redeemed, the Redemption Date or the Special
Redemption Date, as applicable, the Redemption Price, the Special Redemption
Price or the method by which such Special Redemption Price is to be calculated,
as applicable, at which Debt Securities are to be redeemed, the place or places
of payment, that payment will be made upon presentation and surrender of such
Debt Securities, that interest accrued to the date fixed for redemption will be
paid as specified in said notice, and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. If less
than all the Debt Securities are to be redeemed the notice of redemption shall
specify the numbers of the Debt Securities to be redeemed. In case the Debt
Securities are to be redeemed in part only, the notice of redemption shall state
the portion of the principal amount thereof to be redeemed and shall state that
on and after the date fixed for redemption, upon surrender of such Debt
Security, a new Debt Security or Debt Securities in principal amount equal to
the unredeemed portion thereof will be issued.
Prior to 10:00 a.m. New York City time on the Redemption Date or Special
Redemption Date, as applicable, the Company will deposit with the Trustee or
with one or more paying agents an amount of money sufficient to redeem on the
Redemption Date or the Special Redemption Date, as applicable, all the Debt
Securities so called for redemption at the appropriate Redemption Price or
Special Redemption Price, together with accrued interest to the Redemption Date
or Special Redemption Date, as applicable.
If all, or less than all, the Debt Securities are to be redeemed, the
Company will give the Trustee notice not less than 45 nor more than 60 days,
respectively, prior to the Redemption Date or Special Redemption Date, as
applicable, as to the aggregate principal amount of Debt Securities to be
redeemed and the Trustee shall select, in such manner as in its sole discretion
it shall deem appropriate and fair, the Debt Securities or portions thereof (in
integral multiples of $1,000) to be redeemed.
SECTION 10.4. PAYMENT OF DEBT SECURITIES CALLED FOR REDEMPTION. If notice
of redemption has been given as provided in Section 10.3, the Debt Securities or
portions of Debt Securities with respect to which such notice has been given
shall become due and payable on the Redemption Date or Special Redemption Date,
as applicable, and at the place or places stated in such notice at the
applicable
38
Redemption Price or Special Redemption Price, together with interest accrued to
the Redemption Date or Special Redemption Date, as applicable, and on and after
said date (unless the Company shall default in the payment of such Debt
Securities at the Redemption Price or Special Redemption Price, as applicable,
together with interest accrued to said date) interest on the Debt Securities or
portions of Debt Securities so called for redemption shall cease to accrue. On
presentation and surrender of such Debt Securities at a place of payment
specified in said notice, such Debt Securities or the specified portions thereof
shall be paid and redeemed by the Company at the applicable Redemption Price or
Special Redemption Price, together with interest accrued thereon to the
Redemption Date or Special Redemption Date, as applicable.
Upon presentation of any Debt Security redeemed in part only, the Company
shall execute and the Trustee shall authenticate and make available for delivery
to the holder thereof, at the expense of the Company, a new Debt Security or
Debt Securities of authorized denominations, in principal amount equal to the
unredeemed portion of the Debt Security so presented.
ARTICLE XI.
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 11.1. COMPANY MAY CONSOLIDATE, ETC., ON CERTAIN TERMS. Nothing
contained in this Indenture or in the Debt Securities shall prevent any
consolidation or merger of the Company with or into any other Person (whether or
not affiliated with the Company) or successive consolidations or mergers in
which the Company or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or other disposition of the
property of the Company or its successor or successors as an entirety, or
substantially as an entirety, to any other Person (whether or not affiliated
with the Company, or its successor or successors) authorized to acquire and
operate the same; provided, however, that the Company hereby covenants and
agrees that, upon any such consolidation, merger (where the Company is not the
surviving corporation), sale, conveyance, transfer or other disposition, the due
and punctual payment of the principal of (and premium, if any) and interest on
all of the Debt Securities in accordance with their terms, according to their
tenor, and the due and punctual performance and observance of all the covenants
and conditions of this Indenture to be kept or performed by the Company, shall
be expressly assumed by supplemental indenture satisfactory in form to the
Trustee executed and delivered to the Trustee by the entity formed by such
consolidation, or into which the Company shall have been merged, or by the
entity which shall have acquired such property.
SECTION 11.2. SUCCESSOR ENTITY TO BE SUBSTITUTED. In case of any such
consolidation, merger, sale, conveyance, transfer or other disposition and upon
the assumption by the successor entity, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of and premium, if any, and interest on all of
the Debt Securities and the due and punctual performance and observance of all
of the covenants and conditions of this Indenture to be performed or observed by
the Company, such successor entity shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the Company, and
thereupon the predecessor entity shall be relieved of any further liability or
obligation hereunder or upon the Debt Securities. Such successor entity
thereupon may cause to be signed, and may issue in its own name, any or all of
the Debt Securities issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee or the Authenticating Agent;
and, upon the order of such successor entity instead of the Company and subject
to all the terms, conditions and limitations in this Indenture prescribed, the
Trustee or the Authenticating Agent shall authenticate and deliver any Debt
Securities which previously shall have been signed and delivered by the officers
of the Company, to the Trustee or the Authenticating Agent for authentication,
and any Debt Securities which such successor entity thereafter shall cause to be
signed and delivered to the Trustee or the Authenticating Agent for that
purpose. All the Debt Securities so issued shall in all respects have the same
legal rank and benefit under
39
this Indenture as the Debt Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Debt
Securities had been issued at the date of the execution hereof.
SECTION 11.3. OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, shall receive, in addition to
the Opinion of Counsel required by Section 9.5, an Opinion of Counsel as
conclusive evidence that any consolidation, merger, sale, conveyance, transfer
or other disposition, and any assumption, permitted or required by the terms of
this Article XI complies with the provisions of this Article XI.
ARTICLE XII.
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 12.1. DISCHARGE OF INDENTURE. When
(a) the Company shall deliver to the Trustee for cancellation all Debt
Securities theretofore authenticated (other than any Debt Securities
which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.6) and not theretofore
canceled, or
(b) all the Debt Securities not theretofore canceled or delivered to the
Trustee for cancellation shall have become due and payable, or are by
their terms to become due and payable within 1 year or are to be
called for redemption within 1 year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and the Company
shall deposit with the Trustee, in trust, funds, which shall be
immediately due and payable, sufficient to pay at maturity or upon
redemption all of the Debt Securities (other than any Debt Securities
which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.6) not theretofore
canceled or 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 moneys for the payment of
principal of, and premium, if any, or interest on the Debt Securities
(1) theretofore repaid to the Company in accordance with the
provisions of Section 12.4, or (2) paid to any state or to the
District of Columbia pursuant to its unclaimed property or similar
laws,
and if in the case of either clause (a) or clause (b) the Company shall also pay
or cause to be paid all other sums payable hereunder by the Company, then this
Indenture shall cease to be of further effect except for the provisions of
Sections 2.5, 2.6, 3.1, 3.2, 3.4, 6.6, 6.8 and 12.4 hereof shall survive until
such Debt Securities shall mature and be paid. Thereafter, Sections 6.6 and 12.4
shall survive, and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with, and at the cost and expense
of the Company, shall execute proper instruments acknowledging satisfaction of
and discharging this Indenture. The Company agrees to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred by the Trustee
in connection with this Indenture or the Debt Securities.
SECTION 12.2. DEPOSITED MONEYS TO BE HELD IN TRUST BY TRUSTEE. Subject to
the provisions of Section 12.4, all moneys deposited with the Trustee pursuant
to Section 12.1 shall be held in trust in a non-interest bearing account and
applied by it to the payment, either directly or through any paying agent
(including the Company if acting as its own paying agent), to the holders of the
particular Debt Securities for the payment of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal, and premium, if any, and interest.
40
SECTION 12.3. PAYING AGENT TO REPAY MONEYS HELD. Upon the satisfaction and
discharge of this Indenture all moneys then held by any paying agent of the Debt
Securities (other than the Trustee) shall, upon demand of the Company, be repaid
to it or paid to the Trustee, and thereupon such paying agent shall be released
from all further liability with respect to such moneys.
SECTION 12.4. RETURN OF UNCLAIMED MONEYS. Any moneys deposited with or paid
to the Trustee or any paying agent for payment of the principal of, and premium,
if any, or interest on Debt Securities and not applied but remaining unclaimed
by the holders of Debt Securities for 2 years after the date upon which the
principal of, and premium, if any, or interest on such Debt Securities, as the
case may be, shall have become due and payable, shall, subject to applicable
escheatment laws, be repaid to the Company by the Trustee or such paying agent
on written demand; and the holder of any of the Debt Securities shall thereafter
look only to the Company for any payment which such holder may be entitled to
collect, and all liability of the Trustee or such paying agent with respect to
such moneys shall thereupon cease.
ARTICLE XIII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 13.1. INDENTURE AND DEBT SECURITIES SOLELY CORPORATE OBLIGATIONS.
No recourse for the payment of the principal of or premium, if any, or interest
on any Debt Security, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in this Indenture or in any supplemental indenture, or in any such
Debt Security, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, employee, officer
or director, as such, past, present or future, of the Company or of any
successor Person of the Company, either directly or through the Company or any
successor Person of the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise,
it being expressly understood that all such liability is hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issue of the Debt Securities.
ARTICLE XIV.
MISCELLANEOUS PROVISIONS
SECTION 14.1. SUCCESSORS. All the covenants, stipulations, promises and
agreements in this Indenture contained by the Company shall bind its successors
and assigns whether so expressed or not.
SECTION 14.2. OFFICIAL ACTS BY SUCCESSOR ENTITY. 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 like board, committee, officer or
other authorized Person of any entity that shall at the time be the lawful
successor of the Company.
SECTION 14.3. SURRENDER OF COMPANY POWERS. The Company by instrument in
writing executed by authority of at least 2/3 (two-thirds) of its Board of
Directors and delivered to the Trustee may surrender any of the powers reserved
to the Company and thereupon such power so surrendered shall terminate both as
to the Company, and as to any permitted successor.
SECTION 14.4. ADDRESSES FOR NOTICES, ETC. Any notice, consent, direction,
request, authorization, waiver or demand which by any provision of this
Indenture is required or permitted to be given, made, furnished or served by the
Trustee or by the Securityholders on or to the Company may be given or served in
writing by being deposited postage prepaid by registered or certified mail in a
post
41
office letter box addressed (until another address is filed by the Company, with
the Trustee for the purpose) to the Company, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇. Any notice, consent, direction,
request, authorization, waiver or demand by any Securityholder or the Company to
or upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made in writing at the office of the Trustee,
addressed to the Trustee, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Square, Hartford,
Connecticut, 06103 Attention: Vice President, Corporate Trust Department, with a
copy to State Street Bank and Trust Company, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Corporate Trust Department. Any notice,
consent, direction, request, authorization, waiver or demand on or to any
Securityholder shall be deemed to have been sufficiently given or made, for all
purposes, if given or made in writing at the address set forth in the Debt
Security Register.
SECTION 14.5. GOVERNING LAW. This Indenture and each Debt Security shall be
deemed to be a contract made under the law of the State of New York, and for all
purposes shall be governed by and construed in accordance with the law of said
State, without regard to conflict of laws principles thereof.
SECTION 14.6. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. 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 in the opinion of the signers all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
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.
SECTION 14.7. NON-BUSINESS DAYS. In any case where the date of payment of
interest on or principal of the Debt Securities will be a day that is not a
Business Day, the payment of such interest on or principal of the Debt
Securities need not be made on such date but may be made on the next succeeding
Business Day, except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on the original date
of payment, and no interest shall accrue for the period from and after such
date.
SECTION 14.8. TABLE OF CONTENTS, HEADINGS, ETC. The table of contents and
the titles and headings of the articles and sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 14.9. EXECUTION IN 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.
SECTION 14.10. SEPARABILITY. In case any one or more of the provisions
contained in this Indenture or in the Debt Securities shall for any reason be
held to be invalid, illegal or unenforceable in
42
any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of this Indenture or of such Debt Securities, but this
Indenture and such Debt Securities shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
SECTION 14.11. ASSIGNMENT. The Company will have the right at all times to
assign any of its rights or obligations under this Indenture to a direct or
indirect wholly owned Subsidiary of the Company, provided that, in the event of
any such assignment, the Company will remain liable for all such obligations.
Subject to the foregoing, 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.
SECTION 14.12. ACKNOWLEDGMENT OF RIGHTS. The Company agrees that, with
respect to any Debt Securities held by the Trust or the Institutional Trustee of
the Trust, if the Institutional Trustee of the Trust fails to enforce its rights
under this Indenture as the holder of Debt Securities held as the assets of such
Trust after the holders of a majority in Liquidation Amount of the Capital
Securities of such Trust have so directed such Institutional Trustee, a holder
of record of such Capital Securities may, to the fullest extent permitted by
law, institute legal proceedings directly against the Company to enforce such
Institutional Trustee's rights under this Indenture without first instituting
any legal proceedings against such trustee or any other Person. Notwithstanding
the foregoing, 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 premium,
if any) or principal on the Debt Securities on the date such interest (or
premium, if any) or principal is otherwise payable (or in the case of
redemption, on the redemption date), the Company agrees that a holder of record
of Capital Securities of the Trust may directly institute a proceeding against
the Company for enforcement of payment to such holder directly of the principal
of (or premium, if any) or interest on the Debt Securities having an aggregate
principal amount equal to the aggregate Liquidation Amount of the Capital
Securities of such holder on or after the respective due date specified in the
Debt Securities.
ARTICLE XV.
SUBORDINATION OF DEBT SECURITIES
SECTION 15.1. AGREEMENT TO SUBORDINATE. The Company covenants and agrees,
and each holder of Debt Securities by such Securityholder's acceptance thereof
likewise covenants and agrees, that all Debt Securities shall be issued subject
to the provisions of this Article XV; and each holder of a Debt Security,
whether upon original issue or upon transfer or assignment thereof, accepts and
agrees to be bound by such provisions.
The payment by the Company of the principal of, and premium, if any, and
interest on all Debt Securities 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 Indebtedness of the Company, whether
outstanding at the date of this Indenture or thereafter incurred.
No provision of this Article XV shall prevent the occurrence of any default
or Event of Default hereunder.
SECTION 15.2. DEFAULT ON SENIOR INDEBTEDNESS. 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 Indebtedness of the Company
following any grace period, or in the event that the maturity of any Senior
Indebtedness of the Company 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 Debt Securities.
43
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 15.2, such payment shall, subject to Section 15.7, 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.
SECTION 15.3. LIQUIDATION, DISSOLUTION, BANKRUPTCY. 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 Debt Securities. 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, which the Securityholders or the Trustee would be
entitled to receive from the Company, except for the provisions of this Article
XV, 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 Securityholders or by the Trustee under this Indenture if received by
them or it, directly to the holders of Senior Indebtedness (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 Securityholders
or to the Trustee.
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 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,
as their respective interests may appear, as calculated by the Company, for
application to the payment of all Senior Indebtedness, 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.
For purposes of this Article XV, 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
subordinated at least to the extent provided in this Article XV with respect to
the Debt Securities to the payment of all Senior Indebtedness, 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
44
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 X 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 X of this Indenture. Nothing in Section 15.2 or in this Section shall
apply to claims of, or payments to, the Trustee under or pursuant to Section 6.6
of this Indenture.
SECTION 15.4. SUBROGATION. Subject to the payment in full of all Senior
Indebtedness, the Securityholders shall be subrogated to the rights of the
holders of such Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company, applicable to such Senior
Indebtedness until the principal of (and premium, if any) and interest on the
Debt Securities shall be paid in full. 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 Securityholders or the Trustee would
be entitled except for the provisions of this Article XV, and no payment over
pursuant to the provisions of this Article XV to or for the benefit of the
holders of such Senior Indebtedness by Securityholders or the Trustee, shall, as
between the Company, its creditors other than holders of Senior Indebtedness of
the Company, and the holders of the Debt Securities be deemed to be a payment or
distribution by the Company to or on account of such Senior Indebtedness. It is
understood that the provisions of this Article XV are and are intended solely
for the purposes of defining the relative rights of the holders of the
Securities, on the one hand, and the holders of such Senior Indebtedness, on the
other hand.
Nothing contained in this Article XV or elsewhere in this Indenture or in
the Debt Securities is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the holders of the
Debt Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the holders of the Debt Securities the principal of
(and premium, if any) and interest on the Debt Securities as and when the same
shall become due and payable in accordance with their terms, or is intended to
or shall affect the relative rights of the holders of the Debt Securities and
creditors of the Company, other than the holders of Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or the holder of any Debt
Security from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
XV of the holders of such Senior Indebtedness in respect of cash, property or
securities of the Company, received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to in
this Article XV, the Trustee, subject to the provisions of Article VI of this
Indenture, and the Securityholders shall be entitled to conclusively rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Securityholders, for the purposes of ascertaining the Persons
entitled to participate in such distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article XV.
SECTION 15.5. TRUSTEE TO EFFECTUATE SUBORDINATION. Each Securityholder by
such Securityholder's acceptance thereof authorizes and directs the Trustee on
such Securityholder's behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article XV and
appoints the Trustee such Securityholder's attorney-in-fact for any and all such
purposes.
SECTION 15.6. NOTICE BY THE COMPANY. The Company shall give prompt written
notice to a Responsible Officer of the Trustee at the Principal Office of the
Trustee of any fact known to the
45
Company that would prohibit the making of any payment of monies to or by the
Trustee in respect of the Debt Securities pursuant to the provisions of this
Article XV. Notwithstanding the provisions of this Article XV 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
monies to or by the Trustee in respect of the Debt Securities pursuant to the
provisions of this Article XV, unless and until a Responsible Officer of the
Trustee at the Principal Office 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 Article VI of this 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 at least 2 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 Debt Security), 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 2 Business Days prior to such date.
The Trustee, subject to the provisions of Article VI of this 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 (or a
trustee or representative on behalf of such holder), to establish that such
notice has been given by a holder of such Senior Indebtedness or a trustee or
representative 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 Article XV, 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 XV, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 15.7. RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR INDEBTEDNESS. The
Trustee in its individual capacity shall be entitled to all the rights set forth
in this Article XV 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.
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article XV, 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 Article VI of this Indenture, the Trustee shall not be
liable to any holder of such Senior Indebtedness if it shall pay over or deliver
to Securityholders, 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
XV or otherwise.
Nothing in this Article XV shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.6.
SECTION 15.8. SUBORDINATION MAY NOT BE IMPAIRED. No right of any present or
future holder of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company, or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company, with the
terms,
46
provisions and covenants of this Indenture, regardless of any knowledge thereof
that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Securityholders, without
incurring responsibility to the Securityholders and without impairing or
releasing the subordination provided in this Article XV or the obligations
hereunder of the holders of the Debt Securities to the holders of such Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, such
Senior Indebtedness, or otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any agreement under which
such Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company, and any other Person.
[SIGNATURE PAGE FOLLOWS THIS PAGE]
47
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers thereunto duly authorized, as of the
day and year first above written.
COMMUNITY FINANCIAL GROUP, INC.
By /s/ Illegible
-------------------------------------
Name: Illegible
Title: PRESIDENT
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Trustee
By /s/ Illegible
-------------------------------------
Name: Illegible
Title: Vice President
47-A
FORM OF JUNIOR SUBORDINATED DEBENTURE
[FORM OF FACE OF SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR ANY OTHER
APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY
(A) TO THE COMPANY, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A IN
ACCORDANCE WITH RULE 144A, (C) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION
IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S UNDER
THE SECURITIES ACT, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANY'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH
MAY BE OBTAINED FROM THE COMPANY. THE HOLDER OF THIS SECURITY AGREES THAT IT
WILL COMPLY WITH THE FOREGOING RESTRICTIONS.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATE AND OTHER INFORMATION AS MAY BE REQUIRED BY
THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
10.60% Junior Subordinated Deferrable Interest Debenture
of
Community Financial Group, Inc.
Community Financial Group, Inc., an Arkansas corporation (the "Company"
which term includes any successor Person under the Indenture hereinafter
referred to), for value received promises to pay to State Street Bank and Trust
Company of Connecticut, National Association, not in its individual capacity but
solely as Institutional Trustee for Community Financial Statutory Trust I (the
"Holder") or registered assigns, the principal sum of Three Million Ninety Three
Thousand ($3,093,000) on September 7, 2030, and to pay interest on said
principal sum from September 7, 2000, or from the most recent interest payment
date (each such date, an "Interest Payment Date") to which interest has been
paid or duly provided for, semi-annually (subject to deferral as set forth
herein) in arrears on March 7 and September 7 of each year commencing March 7,
2001, at an annual rate equal to 10.60% until the principal hereof
A-1-1
shall have become due and payable, and on any overdue principal and (without
duplication and to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at an annual rate equal
to 10.60% compounded semi-annually. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year of twelve
30-day months. In the event that any date on which interest is payable on this
Debt Security is not a Business Day, then payment of interest payable on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay), except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Debt
Security (or one or more Predecessor Securities, as defined in said Indenture)
is registered at the close of business on the Record Date for such interest
installment, which shall be the close of business on the 15th day next preceding
such Interest Payment Date. Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the registered holders
on such Record Date and may be paid to the Person in whose name this Debt
Security (or one or more Predecessor Debt Securities) is registered at the close
of business on a special record date to be fixed by the Trustee for the payment
of such defaulted interest, notice whereof shall be given to the registered
holders of the Debt Securities not less than 10 days prior to such special
record date, all as more fully provided in the Indenture. The principal of and
interest on this Debt Security shall be payable at the office or agency of the
Trustee (or other paying agent appointed by the Company) maintained for that
purpose in any coin or currency of the United States of America that at the time
of payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made by check mailed to the registered
holder at such address as shall appear in the Debt Security Register if a
request for a wire transfer by such holder has not been received by the Company
or by wire transfer to an account appropriately designated by the holder hereof.
Notwithstanding the foregoing, so long as the holder of this Debt Security is
the Institutional Trustee, the payment of the principal of and interest on this
Debt Security will be made in immediately available funds at such place and to
such account as may be designated by the Trustee.
So long as no Event of Default has occurred and is continuing, the Company
shall have the right, from time to time, and without causing an Event of
Default, to defer payments of interest on the Debt Securities by extending the
interest payment period on the Debt Securities at any time and from time to time
during the term of the Debt Securities, for up to 10 consecutive semi-annual
periods (each such extended interest payment period, an "Extension Period"),
during which Extension Period no interest shall be due and payable. No Extension
Period may end on a date other than an Interest Payment Date. At the end of any
such Extension Period the Company shall pay all interest then accrued and unpaid
on the Debt Securities (together with Additional Interest thereon); provided,
however, that no Extension Period may extend beyond the Maturity Date; provided
further, however, that during any such Extension Period, the Company shall not
and shall not permit any Affiliate to (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company's or such Affiliate's capital stock (other
than payments of dividends or distributions to the Company) or make any
guarantee payments with respect to the foregoing or (ii) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Company or any Affiliate that rank pari passu in all
respects with or junior in interest to the Debt Securities (other than, with
respect to clauses (i) and (ii) above, (a) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company in connection with any
employment contract, benefit plan or other similar arrangement with or for the
benefit of one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or stockholder stock purchase plan or in
connection with the issuance of capital stock of the Company (or securities
convertible into or exercisable for such capital stock) as consideration in an
acquisition transaction entered into prior to the applicable Extension Period,
(b) as a result of any exchange or conversion of any class or series of the
A-1-2
Company's capital stock (or any capital stock of a subsidiary of the Company)
for any class or series of the Company's capital stock or of any class or series
of the Company's indebtedness for any class or series of the Company's capital
stock, (c) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (d) any declaration of a
dividend in connection with any stockholder's rights plan, or the issuance of
rights, stock or other property under any stockholder's rights plan, or the
redemption or repurchase of rights pursuant thereto, (e) any dividend in the
form of stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options or other rights is the
same stock as that on which the dividend is being paid or ranks pari passu with
or junior to such stock and any cash payments in lieu of fractional shares
issued in connection therewith, or (f) payments under the Capital Securities
Guarantee). Prior to the termination of any Extension Period, the Company may
further extend such period, provided that such period together with all such
previous and further consecutive extensions thereof shall not exceed 10
consecutive semi-annual periods, or extend beyond the Maturity Date. Upon the
termination of any Extension Period and upon the payment of all accrued and
unpaid interest and Additional Interest, the Company may commence a new
Extension Period, subject to the foregoing requirements. No interest or
Additional Interest shall be due and payable during an Extension Period, except
at the end thereof, but each installment of interest that would otherwise have
been due and payable during such Extension Period shall bear Additional
Interest. The Company must give the Trustee notice of its election to begin such
Extension Period at least five Business Days prior to the earlier of (i) the
date interest on the Debt Securities would have been payable except for the
election to begin such Extension Period or (ii) the date such interest is
payable, but in any event not less than five Business Days prior to such record
date.
The indebtedness evidenced by this Debt Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Indebtedness, and this Debt Security is issued
subject to the provisions of the Indenture with respect thereto. Each holder of
this Debt Security, by accepting the same, (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. Each holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
This Debt Security 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.
Capitalized terms used and not defined in this Debt Security shall have the
meanings assigned in the Indenture dated as of the date of this Debt Security
between the Trustee and the Company.
A-1-3
IN WITNESS WHEREOF, the Company has duly executed this certificate.
COMMUNITY FINANCIAL GROUP, INC.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Dated:
------------------------------
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities referred to in the within-mentioned
Indenture.
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as
Trustee
By:
------------------------------------
Authorized Officer
A-1-4