EXHIBIT 4.6
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SUBORDINATED INDENTURE
BANK OF THE OZARKS, INC.,
as Issuer
to
FMB TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
__% Subordinated Debentures
Dated as of _________, 1999
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS.......................................................................................... 1
ARTICLE II
REGISTRATION and EXCHANGE OF THE SUBORDINATED DEBENTURES
Section 2.01. Designation and Principal Amount.................................................. 8
Section 2.02. Maturity.......................................................................... 8
Section 2.03. Form and Payment.................................................................. 9
Section 2.04. Global Subordinated Debenture..................................................... 9
Section 2.05. Interest.......................................................................... 11
Section 2.06. Execution, Authentication, Delivery and Dating.................................... 12
Section 2.07. Registration and Transfer......................................................... 12
Section 2.08. Mutilated, Destroyed, Lost and Stolen Subordinated Debentures..................... 13
Section 2.09. CUSIP Numbers..................................................................... 14
ARTICLE III
REDEMPTION OF SUBORDINATED DEBENTURES
Section 3.01. Redemption........................................................................ 14
Section 3.02. Special Event Redemption.......................................................... 14
Section 3.03. Optional Redemption by Company.................................................... 15
Section 3.04. Notice of Redemption.............................................................. 15
Section 3.05. Payment Upon Redemption........................................................... 16
Section 3.06. No Sinking Fund................................................................... 17
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
Section 4.01. Extension of Interest Payment Period.............................................. 17
Section 4.02. Notice of Extension............................................................... 17
Section 4.03. Limitation of Transactions During Extension....................................... 18
TABLE OF CONTENTS
(continued)
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ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
Section 5.01. Payment of Principal and Interest......................................................... 18
Section 5.02. Maintenance of Agency..................................................................... 18
Section 5.03. Paying Agents............................................................................. 19
Section 5.04. Appointment to Fill Vacancy in Office of Trustee.......................................... 20
Section 5.05. Compliance with Consolidation Provisions.................................................. 20
Section 5.06. Restrictions on Certain Payments.......................................................... 20
Section 5.07. Covenants as to the Trust................................................................. 20
ARTICLE VI
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 6.01. Company to Furnish Trustee Names and Addresses of Securityholders......................... 21
Section 6.02. Preservation of Information; Communications with Securityholders.......................... 21
Section 6.03. Reports by the Company.................................................................... 22
Section 6.04. Reports by the Trustee.................................................................... 22
ARTICLE VII
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 7.01. Events of Default......................................................................... 23
Section 7.02. Collection of Indebtedness and Suits for Enforcement by Trustee........................... 24
Section 7.03. Application of Moneys Collected........................................................... 26
Section 7.04. Limitation on Suits....................................................................... 26
Section 7.05. Rights and Remedies Cumulative; Delay or Omission Not Waiver.............................. 27
Section 7.06. Control by Securityholders................................................................ 27
Section 7.07. Undertaking to Pay Costs.................................................................. 28
ARTICLE VIII
FORM OF SUBORDINATED DEBENTURE AND ORIGINAL ISSUE
Section 8.01. Form of Subordinated Debenture............................................................ 28
Section 8.02. Original Issue of Subordinated Debentures................................................. 28
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TABLE OF CONTENTS
(continued)
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ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.01. Certain Duties and Responsibilities of the Trustee........................................ 29
Section 9.02. Notice of Defaults........................................................................ 30
Section 9.03. Certain Rights of Trustee................................................................. 30
Section 9.04. Trustee not Responsible for Recitals or Issuance of the Subordinated Debentures........... 31
Section 9.05. May Hold Subordinated Debentures.......................................................... 32
Section 9.06. Moneys Held in Trust...................................................................... 32
Section 9.07. Compensation and Reimbursement............................................................ 32
Section 9.08. Reliance on Officers' Certificate......................................................... 33
Section 9.09. Disqualification; Conflicting Interests................................................... 33
Section 9.10. Corporate Trustee Required; Eligibility................................................... 33
Section 9.11. Resignation and Removal; Appointment of Successor......................................... 33
Section 9.12. Acceptance of Appointment by Successor.................................................... 35
Section 9.13. Merger, Conversion, Consolidation or Succession to Business............................... 35
Section 9.14. Preferential Collection of Claims Against the Company..................................... 35
Section 9.15. Appointment of Authenticating Agent....................................................... 36
ARTICLE X
CONCERNING THE SECURITYHOLDERS
Section 10.01. Evidence of Action by Securityholders..................................................... 37
Section 10.02. Proof of Execution by Securityholders..................................................... 38
Section 10.03. Who May be Deemed Owners.................................................................. 38
Section 10.04. Certain Subordinated Debentures Owned by Company Disregarded.............................. 38
Section 10.05. Actions Binding on Future Securityholders................................................. 39
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without the Consent of Securityholders............................ 39
Section 11.02. Supplemental Indentures With Consent of Securityholders................................... 40
Section 11.03. Effect of Supplemental Indentures......................................................... 40
Section 11.04. Subordinated Debentures Affected by Supplemental Indentures............................... 40
Section 11.05. Execution of Supplemental Indentures...................................................... 41
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TABLE OF CONTENTS
(continued)
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ARTICLE XII
SUCCESSOR CORPORATION
Section 12.01. Company May Consolidate, Etc.............................................................. 41
Section 12.02. Successor Substituted..................................................................... 41
Section 12.03. Evidence of Consolidation, etc., to Trustee............................................... 42
ARTICLE XIII
SATISFACTION AND DISCHARGE
Section 13.01. Satisfaction and Discharge of Indenture................................................... 42
Section 13.02. Discharge of Obligations.................................................................. 43
Section 13.03. Deposited Moneys to be Held in Trust...................................................... 43
Section 13.04. Payment of Moneys held by Paying Agents................................................... 43
Section 13.05. Repayment to Company...................................................................... 43
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01. No Recourse............................................................................... 43
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01. Effect on Successors and Assigns.......................................................... 44
Section 15.02. Actions by Successor...................................................................... 44
Section 15.03. Surrender of Company Powers............................................................... 44
Section 15.04. Notices................................................................................... 44
Section 15.05. Governing Law............................................................................. 45
Section 15.06. Treatment of Subordinated Debentures as Debt.............................................. 45
Section 15.07. Compliance Certificates and Opinions...................................................... 45
Section 15.08. Payments on Business Days................................................................. 45
Section 15.09. Conflict with Trust Indenture Act......................................................... 45
Section 15.10. Counterparts.............................................................................. 45
Section 15.11. Separability.............................................................................. 46
Section 15.12. Assignment................................................................................ 46
Section 15.13. Acknowledgment of Rights.................................................................. 46
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TABLE OF CONTENTS
(continued)
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ARTICLE XVI
SUBORDINATION OF SUBORDINATED DEBENTURES
Section 16.01. Agreement to Subordinate.................................................................. 46
Section 16.02. Default on Senior and Subordinated Debt................................................... 47
Section 16.03. Liquidation; Dissolution; Bankruptcy...................................................... 47
Section 16.04. Subrogation............................................................................... 48
Section 16.05. Trustee to Effectuate Subordination....................................................... 49
Section 16.06. Notice by the Company..................................................................... 49
Section 16.07. Rights of the Trustee; Holders of Senior and Subordinated Debt............................ 50
Section 16.08. Subordination May Not be Impaired......................................................... 50
EXHIBIT A FORM OF SUBORDINATED DEBENTURE
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BANK OF THE OZARKS, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939,
AS AMENDED, AND SUBORDINATED INDENTURE,
DATED AS OF ____________, 1999
Trust Indenture Act Section Subordinated Indenture Section
310(a) 9.09
310(b) 9.08; 9.10
310(c) Inapplicable
311(a) 9.14
311(b) 9.14
311(c) Inapplicable
312(a) 6.01; 6.02(a)
312(b) 6.02
313(a) 6.04(a)
313(b) 6.04(b)
313(c) 6.04(a); 6.04(b)
313(d) 6.04(c)
314(a) 6.03
314(b) Inapplicable
314(c) 15.07(a)
314(d) Inapplicable
314(e) 15.07(b)
314(f) Inapplicable
315(a) 9.01(a); 9.03
315(b) 9.02
315(c) 9.01(a)
315(d) 9.01(b)
315(e) 7.07
316(a) 7.06; 10.04
316(b) 7.04
316(c) 2.05(a); 6.01
317(a) 7.02
317(b) 5.03
318 15.09
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Subordinated Indenture.
SUBORDINATED INDENTURE (the "Indenture"), dated as of __________, 1999,
between BANK OF THE OZARKS, INC., an Arkansas corporation (the "Company") and
FMB TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as
trustee (the "Trustee");
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the execution and delivery of this Indenture to provide for the issuance of its
securities to be known as its __% Subordinated Debentures due _______________,
2029 (hereinafter referred to as the "Subordinated Debentures"), the form and
substance of such Subordinated Debentures and the terms, provisions and
conditions thereof to be set forth as provided in this Indenture; and
WHEREAS, Bank of the Ozarks Trust, a Delaware statutory business trust (the
"Trust"), has offered to the public $_____[A]___ aggregate liquidation amount of
its __% Cumulative Trust Preferred Securities (the "Preferred Securities"),
representing preferred undivided beneficial interests in the assets of the Trust
and proposes to invest the proceeds from such offering, together with the
proceeds of the issuance and sale by the Trust to the Company of $__[B]___
aggregate liquidation amount of its __% Common Securities, in $_[A]+[B]__
aggregate principal amount of the Subordinated Debentures; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this Indenture and has satisfied all requirements necessary to make this
Indenture a valid instrument in accordance with its terms, and to make the
Subordinated Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company; and
WHEREAS, to provide the terms and conditions upon which the Subordinated
Debentures are to be authenticated, issued and delivered, the Company has duly
authorized the execution, delivery and performance of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of the
Subordinated Debentures by the holders thereof, it is mutually covenanted and
agreed as follows for the equal and ratable benefit of the holders of
Subordinated Debentures:
ARTICLE I
DEFINITIONS
The terms defined in this Section (except as in this Indenture otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section and shall include the plural as
well as the singular. All other terms used in this Indenture that are defined in
the Trust Indenture Act of 1939, as amended, or that are by reference in said
Trust Indenture Act defined in the Securities Act of 1933, as amended (except as
herein otherwise expressly provided or unless the context otherwise requires),
shall have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act as in force at
the date of the execution of this Indenture.
"25% Capital Limitation" means the limitation imposed by the FRB that the
proceeds of certain qualifying securities like the Preferred Securities will
qualify as Tier 1 capital of the issuer up to an amount not to exceed 25% of the
Issuer's Tier 1 capital, or any subsequent limitation adopted by the FRB.
"Accelerated Maturity Date" means, if the Company elects to accelerate the
Maturity Date in accordance with Section 2.02, the date selected by the Company
which is prior to the Scheduled Maturity Date, but is after ___________, 2004.
"Additional Sums" shall have the meaning set forth in Section 2.05(c).
"Administrative Trustees" has the meaning set forth in the Trust Agreement.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person, (d) a partnership in which the specified Person is a
general partner, (e) any officer or director of the specified Person, and (f) if
the specified Person is an individual, any entity of which the specified Person
is an officer, director or general partner.
"Authenticating Agent" means an authenticating agent with respect to the
Subordinated Debentures appointed by the Trustee pursuant to Section 9.15.
"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 of the Company or any
duly authorized committee of such Board.
"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.
"Business Day" means any day other than a day on which federal or state
banking institutions in the State of Delaware are authorized or obligated by
law, executive order or regulation to close or a day on which the Trustee is
closed.
"Capital Treatment Event" means the reasonable determination by the Company
that, as a result of any amendment to, or change (including any proposed change)
in, the laws (or any regulations thereunder) of the United States or any
political subdivision thereof or therein, or as a result of any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such proposed
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change, pronouncement or decision is announced on or after the date of issuance
of the Preferred Securities under the Trust Agreement, there is more than an
insubstantial risk of impairment of the Company's ability to treat the Preferred
Securities (or any substantial portion thereof) as tier I Capital (or the then
equivalent thereof), except for the 25% Capital Limitation, for purposes of any
then applicable capital adequacy guidelines of the FRB, as then in effect and
applicable to the Company.
"Certificate" means a certificate signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company. The Certificate need not comply with the provisions of Section
15.07.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Securities" means common undivided beneficial interests in the
assets of the Trust which rank pari passu with Preferred Securities issued by
the Trust; provided, however, that upon the occurrence of an Event of Default,
the rights of holders of Common Securities to payment in respect of
Distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Preferred Securities.
"Company" means Bank of the Ozarks, Inc., a corporation duly organized and
existing under the laws of the State of Arkansas, and, subject to the provisions
of Article XII, shall also include its successors and assigns.
"Compounded Interest" shall have the meaning set forth in Section 4.01.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at FMB Trust Company, National
Association, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate
Trust Services.
"Coupon Rate" shall have the meaning set forth in Section 2.05(a).
"Custodian" means any receiver, trustee, assignee, liquidator, or similar
official under any Bankruptcy Law.
"Debt" means with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent, (a) every
obligation of such Person for money borrowed; (b) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (c) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (d) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (e) every capital lease obligation of such Person; and (f) every
obligation of the type referred to in clauses (a) through (e) of another Person
and all dividends of another
3
Person the payment of which, in either case, such Person has guaranteed or for
which such Person is responsible or liable, directly or indirectly, as obligor
or otherwise.
"Default" means any event, act or condition that with notice or lapse of
time, or both, would constitute an Event of Default.
"Deferred Interest" shall have the meaning set forth in Section 4.01.
"Depositary" means, with respect to Subordinated Debentures issued as a
Global Subordinated Debenture, The Depository Trust Company, New York, New York,
another clearing agency, or any successor registered as a clearing agency under
the Exchange Act, or other applicable statute or regulation, which, in each
case, shall be designated by the Company pursuant to either Section 2.01 or
2.04.
"Dissolution Event" means that as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance with
the Trust Agreement and the Subordinated Debentures held by the Property Trustee
are to be distributed to the holders of the Trust Securities issued by the Trust
pro rata in accordance with the Trust Agreement.
"Distributions" shall have the meaning set forth in the Trust Agreement.
"Event of Default" shall have the meaning set forth in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 4.01.
"FRB" means the Board of Governors of the Federal Reserve System.
"Global Subordinated Debenture" has the meaning specified in Section
2.04(a) and complying with the form of debenture attached as Exhibit A to this
---------
Indenture, evidencing all Outstanding Subordinated Debentures, issued to and
registered in the name of the Depositary or its nominee, all in accordance with
this Indenture.
"Governmental Obligations" means securities that are (a) direct obligations
of the United States of America for the payment of which its full faith and
credit is pledged or (b) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America that, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on any
such Governmental Obligation held by such custodian for the account of the
holder of such depositary receipt; provided, however, that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
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"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.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into in accordance with the terms hereof.
"Interest Payment Date," when used with respect to any installment of
interest on the Subordinated Debentures, means the date specified in the
Subordinated Debenture as the fixed date on which an installment of interest
with respect to the Subordinated Debentures is due and payable.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"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 a change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in Investment
Company Act Law"), 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, which Change in Investment Company Act Law
becomes effective on or after the date of original issuance of the Preferred
Securities under the Trust Agreement.
"Liquidation Amount" means the stated amount of $10.00 per Trust Security.
"Maturity Date" shall have the meaning set forth in Section 2.02.
"Non Book-Entry Preferred Securities" shall have the meaning set forth in
Section 2.04(a).
"Officers' Certificate" means a certificate signed by the Chief Executive
Officer, the President or a Vice President and by the Chief Accounting Officer
or the Controller or an Assistant Controller or the Secretary or an Assistant
Secretary of the Company that is delivered to the Trustee in accordance with the
terms hereof. Each such certificate shall include the statements provided for in
Section 15.07, if and to the extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of legal counsel, who may
be an employee of or counsel for the Company, that is delivered to the Trustee
in accordance with the terms hereof. Each such opinion shall include the
statements provided for in Section 15.07, if and to the extent required by the
provisions thereof.
"Outstanding," when used with reference to Subordinated Debentures means,
subject to the provisions of Section 10.04, as of any particular time, all
Subordinated Debentures theretofore authenticated and delivered by the Trustee
under this Indenture, except (a) Subordinated Debentures theretofore canceled by
the Trustee or any paying agent, or delivered to the Trustee or any paying agent
for cancellation; (b) Subordinated Debentures or portions thereof for the
payment or redemption of which moneys or Governmental Obligations in the
necessary amount shall have been deposited in trust with the Trustee or with any
paying agent (other than
5
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 Subordinated Debentures or portions of such Subordinated Debentures are to
be redeemed prior to the maturity thereof, notice of such redemption shall have
been given as provided in Article III, or provision satisfactory to the Trustee
shall have been made for giving such notice; and (c) Subordinated Debentures in
lieu of or in substitution for which other Subordinated Debentures shall have
been authenticated and delivered pursuant to the terms of Section 2.08.
"Person" means any individual, corporation, partnership, joint venture,
joint-stock company, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Subordinated Debenture" means every previous Subordinated
Debenture evidencing all or a portion of the same debt as that evidenced by such
particular Subordinated Debenture; and, for the purposes of this definition, any
Subordinated Debenture authenticated and delivered under Section 2.08 in lieu of
a lost, destroyed or stolen Subordinated Debenture shall be deemed to evidence
the same debt as the lost, destroyed or stolen Subordinated Debenture.
"Preferred Securities" means preferred undivided beneficial interests in
the assets of the Trust which rank pari passu with Common Securities issued by
the Trust; provided, however, that upon the occurrence of an Event of Default,
the rights of holders of Common Securities to payment in respect of
Distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Preferred Securities.
"Preferred Securities Certificate" has the meaning set forth in the Trust
Agreement.
"Preferred Securities Guarantee" means any guarantee that the Company may
enter into with the Property Trustee or other Persons that operates directly or
indirectly for the benefit of holders of Preferred Securities of the Trust.
"Property Trustee" has the meaning set forth in the Trust Agreement.
"Redemption Price" means the amount equal to 100% of the principal amount
of Subordinated Debentures to be redeemed plus any accrued and unpaid interest
thereon to the date of the redemption of such Subordinated Debentures.
"Responsible Officer" means any officer within the Corporate Trust Office
of the Property Trustee with direct responsibility for the administration of
this Trust Agreement and also means, with respect to a particular corporate
trust matter, any other officer of the Property Trustee to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Scheduled Maturity Date" means _________, 2029.
"Securities" or "Security" means any debt securities or debt, as the case
may be, authenticated and delivered under this Indenture.
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"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 2.07.
"Securityholder," "Holder," "Registered Holder," or other similar term,
means the Person or Persons in whose name or names particular Subordinated
Debentures shall be registered in the Securities Register.
"Senior and Subordinated Debt" means the principal of (and premium, if any)
and interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on
Debt of 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 in right of payment to the Subordinated Debentures
or to other Debt which is pari passu with, or subordinated to, the Subordinated
Debentures; provided, however, that Senior and Subordinated Debt shall not be
deemed to include (a) any Debt of the Company which when incurred and without
respect to any election under section 1111(b) of the United States Bankruptcy
Code of 1978, as amended, was without recourse to the Company, (b) any Debt of
the Company to any of its Subsidiaries, (c) any Debt to any employee of the
Company, (d) the Preferred Securities Guarantee, and (e) any other Securities
issued pursuant to this Indenture.
"Special Event" means a Tax Event, an Investment Company Event or a Capital
Treatment Event.
"Subordinated Debentures" means the __% Subordinated Debentures due 2029
authenticated and delivered under this Indenture.
"Subsidiary" means, with respect to any Person, (a) any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person, or by one or more of its Subsidiaries,
or by such Person and one or more of its Subsidiaries, (b) any general
partnership, joint venture or similar entity, at least a majority of whose
outstanding partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person and one or more
of its Subsidiaries, and (c) any limited partnership of which such Person or any
of its Subsidiaries is a general partner.
"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 or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of issuance of
the Subordinated Debentures there is more than an insubstantial risk that (a)
interest payable by the Company on the Subordinated Debentures is not, or within
90 days after the date of such Opinion of Counsel will not be, deductible by the
Company, in whole or in part, for United States federal income tax purposes, (b)
the Trust is, or will be within 90 days after the date of such Opinion of
Counsel, subject to United States federal income tax with respect to income
received or accrued on the Subordinated Debentures, or (c)
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the Trust is, or will be within 90 days after the date of such Opinion of
Counsel, subject to more than a de minimis amount of other taxes, duties,
assessments or other governmental charges.
"Trust" means Bank of the Ozarks Trust, a Delaware statutory business trust
created for the purpose of issuing Trust Securities in connection with the
issuance of Subordinated Debentures under this Indenture.
"Trust Agreement" means the Bank of the Ozarks Trust Amended and Restated
Trust Agreement, dated as of ___________, 1999, as amended from time to time.
"Trustee" means the Person identified as "Trustee" in the preamble to this
Indenture and, subject to the provisions of Article IX, shall also include its
successors and assigns, and, if at any time there is more than one Person acting
in such capacity hereunder, "Trustee" shall mean each such Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date of execution of this Indenture; provided, however, that in the event
the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture
Act" means, to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"Trust Securities" means Common Securities and Preferred Securities of the
Trust.
"Voting Stock" as applied to stock of any Person, means shares, interests,
participations or other equivalents in the equity interest (however designated)
in such Person having ordinary voting power for the election of a majority of
the directors (or the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by reason of the
occurrence of a contingency.
ARTICLE II
REGISTRATION AND EXCHANGE OF THE SUBORDINATED DEBENTURES
Section 2.01. Designation and Principal Amount. There is hereby authorized
a series of Securities designated the "__% Subordinated Debentures due 2029,"
limited in aggregate principal amount to $________________, which amount shall
be as set forth in any written order of the Company for the authentication and
delivery of Subordinated Debentures pursuant to Section 8.02 of this Indenture.
Section 2.02. Maturity.
(a) The Maturity Date will be either:
(i) the Scheduled Maturity Date; or
(ii) if the Company elects to accelerate the Maturity Date
to be a date prior to the Scheduled Maturity Date in accordance with
Section 2.02(b), the Accelerated Maturity Date.
8
(b) The Company may, at any time before the day which is 90 days
before the Scheduled Maturity Date, elect to shorten the Maturity Date only
once to the Accelerated Maturity Date, provided that the Company has
received the prior approval of the FRB, if then required under applicable
capital guidelines, policies or regulations of the FRB, but in no case
shall such Accelerated Maturity Date be a date before __________, 2004.
(c) If the Company elects to accelerate the Maturity Date in
accordance with Section 2.02(b), the Company shall give notice to the
Registered Holders of the Subordinated Debentures, the Property Trustee and
the Trustee of the acceleration of the Maturity Date and the Accelerated
Maturity Date at least 90 days before the Accelerated Maturity Date.
Section 2.03. Form And Payment. Except as provided in Section 2.04, the
Subordinated Debentures shall be issued in fully registered certificated form
without interest coupons. Principal and interest on the Subordinated Debentures
issued in certificated form will be payable, the transfer of such Subordinated
Debentures will be registrable and such Subordinated Debentures will be
exchangeable for Subordinated Debentures bearing identical terms and provisions
at the office or agency of the Trustee; provided, however, that payment of
interest may be made at the option of the Company by check mailed to the Holder
at such address as shall appear in the Securities Register. Notwithstanding the
foregoing, so long as the Holder of any Subordinated Debentures is the Property
Trustee, the payment of the principal of and interest (including Compounded
Interest and Additional Sums, if any) on such Subordinated Debentures held by
the Property Trustee will be made at such place and to such account as may be
designated by the Property Trustee.
Section 2.04. Global Subordinated Debenture.
(a) In connection with a Dissolution Event:
(i) the Subordinated Debentures in certificated form may be
presented to the Trustee by the Property Trustee in exchange for a
Global Subordinated Debenture in an aggregate principal amount equal
to the aggregate principal amount of all outstanding Subordinated
Debentures (a "Global Subordinated Debenture"), to be registered in
the name of the Depositary, or its nominee, and delivered by the
Trustee to the Depositary for crediting to the accounts of its
participants pursuant to the instructions of the Administrative
Trustees. The Company upon any such presentation shall execute a
Global Subordinated Debenture in such aggregate principal amount and
deliver the same to the Trustee for authentication and delivery in
accordance with this Indenture. Payments on the Subordinated
Debentures issued as a Global Subordinated Debenture will be made to
the Depositary; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Subordinated Debentures in certificated form
may be presented to the Trustee by the Property Trustee and any
Preferred Securities Certificate which represents Preferred Securities
other than Preferred Securities held by the Depositary or its nominee
("Non Book-Entry Preferred Securities") will be
9
deemed to represent beneficial interests in Subordinated Debentures
presented to the Trustee by the Property Trustee having an aggregate
principal amount equal to the aggregate Liquidation Amount of the Non
Book-Entry Preferred Securities until such Preferred Securities
Certificates are presented to the Securities Registrar for transfer or
reissuance at which time such Preferred Securities Certificates will
be canceled and a Subordinated Debenture, registered in the name of
the holder of the Preferred Securities Certificate or the transferee
of the holder of such Preferred Securities Certificate, as the case
may be, with an aggregate principal amount equal to the aggregate
Liquidation Amount of the Preferred Securities Certificate canceled,
will be executed by the Company and delivered to the Trustee for
authentication and delivery in accordance with this Indenture. On
issue of such Subordinated Debentures, Subordinated Debentures with an
equivalent aggregate principal amount that were presented by the
Property Trustee to the Trustee will be deemed to have been canceled.
(b) A Global Subordinated Debenture may be transferred, in whole but
not in part, only to another nominee of the Depositary, or to a successor
Depositary selected or approved by the Company or to a nominee of such successor
Depositary.
(c) If (i)(A) at any time the Depositary notifies the Company that it
is unwilling or unable to continue as Depositary or (B) at any time the
Depositary for such series shall no longer be registered or in good standing
under the Exchange Act or other applicable statute or regulation, and a
successor Depositary for such series is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such condition,
as the case may be, or (ii) there shall have occurred and be continuing an Event
of Default, the Company will execute, and the Trustee, upon written notice from
the Company, will authenticate and deliver in exchange for such Global
Subordinated Debenture the Subordinated Debentures in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Subordinated Debenture. In
addition, the Company may at any time determine that the Subordinated Debentures
shall no longer be represented by a Global Subordinated Debenture. In such event
the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will authenticate and
deliver in exchange for such Global Subordinated Debenture the Subordinated
Debentures in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Subordinated Debenture. Upon the exchange of the Global
Subordinated Debenture for such Subordinated Debentures in definitive registered
form without coupons, in authorized denominations, the Global Subordinated
Debenture shall be canceled by the Trustee. Such Subordinated Debentures in
definitive registered form issued in exchange for the Global Subordinated
Debenture shall be registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Subordinated Debentures to the Depositary for delivery to the Persons in
whose names such Subordinated Debentures are so registered.
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Section 2.05. Interest.
(a) Each Subordinated Debenture will bear interest at the rate of
__% per annum (the "Coupon Rate") from the original date of issuance until
the principal thereof becomes due and payable, and on any overdue principal
and (to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the Coupon Rate,
compounded quarterly, payable (subject to the provisions of Article IV)
quarterly in arrears on March 31, June 30, September 30 and December 31 in
each year, commencing on [June 30], 1999. If any date on which interest is
otherwise payable on the Subordinated Debentures is not a Business Day,
then the payment of such interest shall be 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, payment of such interest shall be on the immediately
preceding Business Day, in each case with the same force and effect as if
made on such date (each such date, an "Interest Payment Date"). Interest
shall be payable to the Person in whose name such Subordinated Debenture or
any Predecessor Subordinated Debenture is registered at the close of
business on the regular record date for such interest installment, which,
in respect of (i) Subordinated Debentures of which the Property Trustee is
the Holder and the Preferred Securities are in book-entry-only form or (ii)
a Global Subordinated Debenture, shall be the close of business on the
Business Day next preceding that Interest Payment Date. Notwithstanding the
foregoing sentence, if (A) the Subordinated Debentures are held by the
Property Trustee and the Preferred Securities are no longer in book-entry
only form or (B) the Subordinated Debentures are not held by the Property
Trustee and are not represented by a Global Subordinated Debenture, the
record date for such interest installment shall be the first day of the
month in which such payment is to be made. The amount of each interest
payment due with respect to the Subordinated Debentures will include
amounts accrued through the date the interest payment is due.
(b) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for any
period shorter than a full quarterly period for which interest is computed
will be computed on the basis of the actual number of days elapsed in such
a quarterly period. In the event that any date on which interest is payable
on the Subordinated Debentures is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day which
is a Business Day (and without any interest or other payment in respect of
any such delay), 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.
(c) If, at any time while the Property Trustee is the Holder of
any Subordinated Debentures, the Trust or the Property Trustee is required
to pay any taxes, duties, assessments or governmental charges of whatever
nature (other than withholding taxes) imposed by the United States, or any
other taxing authority, then, in any case, the Company will pay as
additional interest ("Additional Sums") on the Subordinated Debentures held
by the Property Trustee such additional amounts as shall be required so
11
that the net amounts received and retained by the Trust and the Property
Trustee after paying such taxes, duties, assessments or other governmental
charges will be equal to the amounts the Trust and the Property Trustee
would have received had no such taxes, duties, assessments or other
government charges been imposed.
Section 2.06. Execution, Authentication, Delivery and Dating. The
Subordinated Debentures shall be executed on behalf of the Company by its Chief
Executive Officer, its President or any Vice President and attested by its
Secretary or Assistant Secretary. The signature of any of these officers on the
Subordinated Debentures may be manual or facsimile.
Subordinated Debentures bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Subordinated
Debentures or did not hold such offices at the date of such Subordinated
Debentures.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Subordinated Debentures executed by the
Company to the Trustee for authentication, together with a Company order for the
authentication and delivery of such Subordinated Debentures. The Trustee in
accordance with such Company order shall authenticate and deliver such
Subordinated Debentures.
Upon the initial issuance, each Subordinated Debenture shall be dated
__________, 1999, and thereafter Subordinated Debentures issued hereunder shall
be dated the date of their authentication.
No Subordinated Debenture shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Subordinated Debenture a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Subordinated Debenture shall be conclusive evidence, and
the only evidence, that such Subordinated Debenture has been duly authenticated
and delivered hereunder and is entitled to the benefits of this Indenture.
Section 2.07. Registration and Transfer. The Company shall cause to be kept
at the Corporate Trust Office of the Trustee a register (the register maintained
in such office or any other office or agency pursuant to Section 5.02 being
herein sometimes referred to as the "Securities Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of the Subordinated Debentures and transfers of the
Subordinated Debentures. The Trustee is hereby appointed "Securities Registrar"
for the purpose of registering the Subordinated Debentures and transfers of the
Subordinated Debentures as herein provided.
Upon surrender for registration of transfer of any Subordinated Debenture
at an office or agency of the Company designated pursuant to Section 5.02 for
such purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, a new
Subordinated Debenture of the authorized denomination.
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All Subordinated Debentures issued upon any registration of transfer of
Subordinated Debentures shall be valid obligations of the Company, evidencing
the same debt and entitled to the same benefits under this Indenture as the
Subordinated Debentures surrendered upon such registration of transfer.
Every Subordinated Debenture presented or surrendered for registration of
transfer shall be duly endorsed for transfer (if so required by the Company or
the Trustee), or shall be accompanied by a written instrument of transfer in
form satisfactory to the Company and the Securities Registrar duly executed by
the Holder thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made for any registration of transfer of
Subordinated Debentures, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer of Subordinated Debentures.
The Company shall not be required to issue or register the transfer of any
Subordinated Debenture during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of Subordinated
Debentures selected for redemption pursuant to Article III and ending at the
close of business on the day of such mailing.
Section 2.08. Mutilated, Destroyed, Lost and Stolen Subordinated
Debentures. If any mutilated Subordinated Debenture is surrendered to the
Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Subordinated Debenture of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence to
their satisfaction of the destruction, loss or theft of any Subordinated
Debenture and (b) such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of notice to the Company or the
Trustee that such Subordinated Debenture has been acquired by a bona fide
purchaser, the Company shall execute and upon its written request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Subordinated Debenture, a new Subordinated Debenture of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Subordinated
Debenture has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Subordinated Debenture, pay such
Subordinated Debenture.
Upon the issuance of any new Subordinated Debenture under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Subordinated Debenture issued pursuant to this Section in lieu of
any destroyed, lost or stolen Subordinated Debenture shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Subordinated
13
Debenture shall be at any time enforceable by anyone, and shall be entitled to
all of the benefits of this Indenture.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Subordinated Debentures.
Section 2.09. CUSIP Numbers. The Company in issuing the Debentures may use
"CUSIP" numbers (if then generally in use), and, if so, the Indenture Trustee
shall use such "CUSIP" number provided to it by the Company in notices of
redemption as a convenience to Holders; provided, that any such notice may state
that no representation is made as to the correctness of such number either as
printed on the Debentures or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Debentures, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Indenture Trustee
of any change in CUSIP numbers.
ARTICLE III
REDEMPTION OF SUBORDINATED DEBENTURES
Section 3.01. Redemption. Subject to the Company having received prior
approval of the FRB, if then required under the applicable capital guidelines,
regulations or policies of the FRB, the Company may redeem the Subordinated
Debentures in accordance with this Article III.
Section 3.02. Special Event Redemption. Subject to the Company having
received the prior approval of the FRB, if then required under the applicable
capital guidelines or policies of the FRB, if a Special Event has occurred and
is continuing, then, notwithstanding Section 3.03, the Company shall have the
right upon not less than 30 days' nor more than 60 days' notice to the Holders
of the Subordinated Debentures to redeem the Subordinated Debentures, in whole
but not in part, for cash within 90 days following the occurrence of such
Special Event (the "90-Day Period") at the Redemption Price, provided that if at
the time there is available to the Company the opportunity to eliminate, within
the 90-Day Period, the Tax Event by taking some ministerial action ("Ministerial
Action"), such as filing a form or making an election, or pursuing some other
similar reasonable measure which has no adverse effect on the Company, the Trust
or the Holders of the Trust Securities issued by the Trust, the Company shall
pursue such Ministerial Action in lieu of redemption, and, provided, further,
that the Company shall have no right to redeem the Subordinated Debentures while
the Trust is pursuing any Ministerial Action to eliminate the Tax Event
(however, the 90-Day Period shall be tolled while the Trust is pursuing any such
Ministerial Action). The Redemption Price shall be paid prior to 1:00 p.m.,
Little Rock, Arkansas, time, on the date of such redemption or such earlier time
as the Company determines, provided that the Company shall deposit with the
Trustee an amount sufficient to pay the Redemption Price by 11:00 a.m., Little
Rock, Arkansas, time, on the date such Redemption Price is to be paid.
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Section 3.03. Optional Redemption by Company.
(a) Except as otherwise may be specified in this Indenture, the
Company shall have the right to redeem the Subordinated Debentures, in
whole or in part, from time to time, on or after ____________, 2004, at the
Redemption Price. Any redemption pursuant to this Section 3.03 will be made
upon not less than 30 days' nor more than 60 days' notice to the Holders of
the Subordinated Debentures, at the Redemption Price. If the Subordinated
Debentures are only partially redeemed pursuant to this Section 3.03, the
Subordinated Debentures will be redeemed pro rata or by lot or by any other
method utilized by the Trustee; provided, that if at the time of redemption
the Subordinated Debentures are registered as a Global Subordinated
Debenture, the Depositary shall determine, in accordance with its
procedures, the principal amount of such Subordinated Debentures held by
each Holder of Subordinated Debentures to be redeemed. The Redemption Price
shall be paid prior to 1:00 p.m., Little Rock, Arkansas time, on the date
of such redemption or at such earlier time as the Company determines
provided that the Company shall deposit with the Trustee an amount
sufficient to pay the Redemption Price by 11:00 a.m., Little Rock, Arkansas
time, on the date such Redemption Price is to be paid.
(b) If a partial redemption of the Subordinated Debentures would
result in the delisting of the Preferred Securities issued by the Trust
from the NASDAQ National Market or any national securities exchange or
other organization on which the Preferred Securities may then be listed, if
any, the Company shall not be permitted to effect such partial redemption
and may only redeem the Subordinated Debentures in whole or in part to such
extent as would not cause such delisting.
Section 3.04. Notice of Redemption.
(a) In case the Company shall desire to exercise such right to
redeem all or, as the case may be, a portion of the Subordinated Debentures
in accordance with the right reserved so to do, the Company shall, or shall
cause the Trustee to, give notice of such redemption to Holders of the
Subordinated Debentures to be redeemed by mailing, first class postage
prepaid, a notice of such redemption not less than 30 days and not more
than 60 days before the date fixed for redemption to such Holders at their
last addresses as they shall appear upon the Securities Register. Any
notice that is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Registered Holder
receives the notice. In any case, failure duly to give such notice to the
Holder of any Subordinated Debenture designated for redemption in whole or
in part, or any defect in the notice, shall not affect the validity of the
proceedings for the redemption of any other Subordinated Debentures. In the
case of any redemption of Subordinated Debentures prior to the expiration
of any restriction on such redemption provided elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with any such restriction.
Each such notice of redemption shall specify the date fixed for
redemption and the Redemption Price, and shall state that payment of the
Redemption Price of such Subordinated Debentures to be redeemed will be
made at the office or agency of the
15
Company in Little Rock, Arkansas, upon presentation and surrender of such
Subordinated Debentures, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, that from and after
said date interest will cease to accrue. If less than all the Subordinated
Debentures are to be redeemed, the notice to the Holders of Subordinated
Debentures to be redeemed in whole or in part shall specify the particular
Subordinated Debentures to be so redeemed. In case any Subordinated
Debenture is to be redeemed in part only, the notice that relates to such
Subordinated Debenture shall state the portion of the principal amount
thereof to be redeemed, and shall state that on and after the redemption
date, upon surrender of such Subordinated Debenture, a new Subordinated
Debenture or Subordinated Debentures in principal amount equal to the
unredeemed portion thereof shall be issued to the Holder.
(b) If less than all the Subordinated Debentures are to be redeemed,
the Company shall give the Trustee at least 45 days' notice in advance of
the date fixed for redemption as to the aggregate principal amount of
Subordinated Debentures to be redeemed, and thereupon the Trustee shall
select, by lot or in such other manner as it shall deem appropriate and
fair in its discretion and that may provide for the selection of a portion
or portions (equal to twenty-five dollars U.S. ($25) or any integral
multiple thereof), the Subordinated Debentures to be redeemed and shall
thereafter promptly notify the Company in writing of the numbers of the
Subordinated Debentures to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its Chief Executive Officer, its President
or any Vice President, instruct the Trustee or any paying agent to call all or
any part of the Subordinated Debentures for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be in the
name of the Company or in the name of the Trustee or the paying agent, as the
Trustee or such paying agent may deem advisable. In any case in which notice of
redemption is to be given by the Trustee or any such paying agent, the Company
shall deliver or cause to be delivered to, or permit to remain with, the Trustee
or such paying agent, as the case may be, such Securities Register, transfer
books or other records, or suitable copies or extracts therefrom, sufficient to
enable the Trustee or such paying agent to give any notice by mail that may be
required under the provisions of this Section.
Section 3.05. Payment Upon Redemption.
(a) If the giving of notice of redemption shall have been
completed as above provided, the Subordinated Debentures or portions of
Subordinated Debentures to be redeemed specified in such notice shall
become due and payable on the date and at the place stated in such notice
at the Redemption Price (which includes interest accrued to the date fixed
for redemption) and interest on such Subordinated Debentures or portions of
Subordinated Debentures shall cease to accrue on and after the date fixed
for redemption, unless the Company shall default in the payment of such
Redemption Price with respect to any such Subordinated Debentures or
portions thereof. On presentation and surrender of such Subordinated
Debentures on or after the date fixed for redemption at the place of
payment specified in the notice, such Subordinated Debentures shall be paid
and redeemed at the Redemption Price (which includes the interest accrued
thereon
16
to the date fixed for redemption)(but if the date fixed for redemption is
an Interest Payment Date, the interest installment payable on such date
shall be payable to the Registered Holder at the close of business on the
applicable record date pursuant to Section 2.05(a)).
(b) Upon presentation of any Subordinated Debenture that is to be
redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Subordinated Debenture is
presented shall deliver to the Holder thereof, at the expense of the
Company, a new Subordinated Debenture or Subordinated Debentures of
authorized denominations in principal amount equal to the unredeemed
portion of the Subordinated Debenture so presented.
Section 3.06. No Sinking Fund. The Subordinated Debentures are not
entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
Section 4.01. Extension of Interest Payment Period. So long as no Event of
Default has occurred and is continuing, the Company shall have the right, at any
time and from time to time during the term of the Subordinated Debentures, to
defer payments of interest by extending the interest payment period of such
Subordinated Debentures for a period not exceeding 20 consecutive quarters
(the"Extended Interest Payment Period"), during which Extended Interest Payment
Period may extend beyond the Maturity Date. To the extent permitted by
applicable law, interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to this Section 4.01, will
bear interest thereon at the Coupon Rate compounded quarterly for each quarter
of the Extended Interest Payment Period ("Compounded Interest"). At the end of
the Extended Interest Payment Period, the Company shall pay all interest accrued
and unpaid on the Subordinated Debentures, including any Additional Sums and
Compounded Interest (together, "Deferred Interest") that shall be payable to
the Holders of the Subordinated Debentures in whose names the Subordinated
Debentures are registered in the Securities Register on the record date for the
Interest Payment Date coinciding with the end of the Extended Interest Payment
Period. Before the termination of any Extended Interest Payment Period, the
Company may further extend such period, provided that such period together with
all such further extensions thereof shall not exceed 20 consecutive quarters,
or extend beyond the Maturity Date. Upon the termination of any Extended
Interest Payment Period and upon the payment of all Deferred Interest then due,
the Company may commence a new Extended Interest Payment Period, subject to the
foregoing requirements. No interest shall be due and payable during an Extended
Interest Payment Period, except at the end thereof, but the Company may prepay
at any time all or any portion of the interest accrued during an Extended
Interest Payment Period.
Section 4.02. Notice of Extension.
(a) If the Property Trustee is the only Registered Holder of the
Subordinated Debentures at the time the Company selects an Extended
Interest Payment Period, the
17
Company shall give written notice to the Administrative Trustees, the
Property Trustee and the Trustee of its selection of such Extended Interest
Payment Period one Business Day before the earlier of (i) the next
succeeding date on which Distributions are payable, or (ii) the date the
Trust is required to give notice of the record date, or the date such
Distributions are payable, to the Preferred Securities holders or to the
NASDAQ National Market or other applicable self-regulatory organization, if
any, but in any event at least one Business Day before such record date.
(b) If the Property Trustee is not the only Holder of the Subordinated
Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give the Holders of the Subordinated Debentures
and the Trustee written notice of its selection of such Extended Interest
Payment Period at least one Business Day before the earlier of (i) the next
succeeding Interest Payment Date, or (ii) the date the Company is required
to give notice of the record or payment date of such interest payment to
the Holders of the Subordinated Debentures or to the NASDAQ National Market
or other applicable self-regulatory organization, if any.
(c) The quarter in which any notice is given pursuant to paragraph (a)
or paragraph (b) of this Section 4.02 shall be counted as one of the 20
quarters permitted in the maximum Extended Interest Payment Period
permitted under Section 4.01.
Section 4.03. Limitation of Transactions During Extension. If (a) the
Company shall exercise its right to defer payment of interest as provided in
Section 4.01; or (b) there shall have occurred any Event of Default, then the
Company shall be subject to the restrictions on payments set forth under Section
5.06.
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
Section 5.01. Payment of Principal and Interest. The Company will duly and
punctually pay or cause to be paid the principal of and interest (including any
Additional Sums) on the Subordinated Debentures at the time and place and in the
manner provided herein and established with respect to such Subordinated
Debentures.
Section 5.02. Maintenance of Agency. So long as any Subordinated Debentures
remain Outstanding, the Company agrees to maintain an office or agency in Little
Rock, Arkansas, or at such other location or locations as may be designated as
provided in this Section 5.02, where (a) Subordinated Debentures may be
presented for payment, (b) Subordinated Debentures may be presented as
hereinabove authorized for registration of transfer and exchange, and (c)
notices and demands to or upon the Company in respect of the Subordinated
Debentures and this Indenture may be given or served, such designation to
continue with respect to such office or agency until the Company shall, by
written notice signed by its Chief Executive Officer, its President or a Vice
President and delivered to the Trustee, designate some other office or agency
for such purposes or any of them. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the
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Company hereby appoints the Trustee as its agent to receive all such
presentations, notices and demands.
Section 5.03. Paying Agents.
(a) If the Company shall appoint one or more paying agents for
the Subordinated Debentures, other than the Trustee, the Company will cause
each such paying agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the provisions
of this Section:
(i) that it will hold all sums held by it as such agent for
the payment of the principal of or interest on the Subordinated
Debentures (whether such sums have been paid to it by the Company or
by any other obligor) in trust for the benefit of the Persons entitled
thereto;
(ii) that it will give the Trustee notice of any failure by
the Company (or by any other obligor) to make any payment of the
principal of or interest on the Subordinated Debentures when the same
shall be due and payable;
(iii) that it will, at any time during the continuance of any
failure referred to in the preceding paragraph (a)(ii) above, upon the
written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such paying agent; and
(iv) that it will perform all other duties of paying agent
as set forth in this Indenture.
(b) If the Company shall act as its own paying agent with respect
to the Subordinated Debentures, it will on or before each due date of the
principal of or interest on Subordinated Debentures, set aside, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay such principal or interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of such action, or any
failure (by it or any other obligor) to take such action. Whenever the
Company shall have one or more paying agents for the Subordinated
Debentures, it will, prior to each due date of the principal of or interest
on the Subordinated Debentures, deposit with the paying agent a sum
sufficient to pay the principal or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal or
interest, and (unless such paying agent is the Trustee) the Company will
promptly notify the Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section to the contrary, (i)
the agreement to hold sums in trust as provided in this Section is subject
to the provisions of Section 13.05, and (ii) the Company may at any time,
for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or direct any paying agent to pay,
to the Trustee all sums held in trust by the Company or such paying agent,
such sums to be held by the Trustee upon the same terms and conditions as
those upon which such sums were held by the Company or such paying agent;
and, upon such payment by
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any paying agent to the Trustee, such paying agent shall be released from
all further liability with respect to such money.
Section 5.04. Appointment to Fill Vacancy in Office of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 9.11, a Trustee, so that there
shall at all times be a Trustee hereunder.
Section 5.05. Compliance with Consolidated Provisions. The Company will
not, while any of the Subordinated Debentures remain Outstanding, consolidate
with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other company unless the provisions of
Article XII hereof are complied with.
Section 5.06. Restrictions on Certain Payments. If at any time (a) there
shall have occurred any event of which the Company has actual knowledge that (i)
with the giving of notice or the lapse of time, or both, would constitute an
Event of Default and (ii) in respect to which the Company shall not have taken
reasonable steps to cure, or (b) the Company shall have given notice of its
election of an Extended Interest Payment Period as provided herein with respect
to the Subordinated Debentures and shall not have rescinded such notice, or such
Extended Interest Payment Period, or any extension thereof, shall be continuing;
or (c) while the Subordinated Debentures are held by the Trust, the Company
shall be in default with respect to its payment of any obligation under the
Preferred Securities Guarantee, then the Company will not (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 capital stock or (ii)
make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company (including the
Subordinated Debentures) that rank pari passu with or junior in interest to the
Subordinated Debentures or make any guarantee payments with respect to any
guarantee by the Company of the debt securities of any Subsidiary of the Company
if such guarantee ranks pari passu or junior in interest to the Subordinated
Debentures (other than (A) dividends or distributions in shares of common stock,
(B) any declaration of a dividend in connection with any shareholders' rights
plan, or the issuance of rights, stock or other property under any shareholders'
rights plan, or the redemption or repurchase of rights pursuant to the plan, (C)
payments under the Preferred Securities Guarantee and (D) repurchases,
redemptions or other acquisitions of shares of the Company's common stock in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more employees, officers,
directors or consultants, or a dividend reinvestment or shareholder stock
purchase plan).
Section 5.07. Covenants as to the Trust. For so long as the Trust
Securities of the Trust remain outstanding, the Company will (a) maintain 100%
direct or indirect ownership of the Common Securities of the Trust; provided,
however, that any permitted successor of the Company under this Indenture may
succeed to the Company's ownership of the Common Securities, (b) use its
reasonable efforts to cause the Trust (i) to remain a business trust, except in
connection with a distribution of Subordinated Debentures, the redemption of all
of the Trust Securities of the Trust or certain mergers, consolidations or
amalgamations, each as permitted by the Trust Agreement, and (ii) to otherwise
continue not to be treated as an association taxable as a corporation or
partnership for United States federal income tax purposes and (c) to use its
20
reasonable efforts to cause each Holder of Trust Securities to be treated as
owning an individual undivided beneficial interest in the Subordinated
Debentures.
If the Subordinated Debentures are to be issued as a Global Subordinated
Debenture in connection with the distribution of the Subordinated Debentures to
the holders of the Preferred Securities issued by the Trust upon a Dissolution
Event, the Company will use its reasonable best efforts to list such
Subordinated Debentures on the NASDAQ National Market or on such other exchange
as the Preferred Securities may then be listed.
ARTICLE VI
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 6.01. Company to Furnish Trustee Names and Addresses of
Securityholders. The Company will furnish or cause to be furnished to the
Trustee (a) on each regular record date (as defined in Section 2.05(a)) a list,
in such form as the Trustee may reasonably require, of the names and addresses
of the Holders as of such regular record date, provided that the Company shall
not be obligated to furnish or cause to furnish such list at any time that the
list shall not differ in any respect from the most recent list furnished to the
Trustee by the Company 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; provided, however, that, in either case, no such
list need be furnished if the Trustee shall be the Securities Registrar.
SECTION 6.02. Preservation of Information; Communications with
Securityholders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of
the Holders contained in the most recent list furnished to it as provided
in Section 6.01 and as to the names and addresses of Holders received by
the Trustee in its capacity as Securities Registrar (if acting in such
capacity).
(b) The Trustee may destroy any list furnished to it as provided
in Section 6.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section 312(b)
of the Trust Indenture Act with other Securityholders with respect to their
rights under this Indenture or under the Subordinated Debentures.
(d) Every Holder of Subordinated Debentures, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of information as to the names and
addresses of the Holders made pursuant to the Trust Indenture Act.
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SECTION 6.03. Reports by the Company.
(a) The Company covenants and agrees to file with the Trustee, within
15 days after the Company is required to file the same with the Commission
(after taking into account any extensions allowed by the Commission), copies of
the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) that the Company may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or, if the Company is not required to file information, documents or
reports pursuant to either of such sections, then to file with the Trustee and
the Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports that may be required pursuant to any
applicable rules and regulations of the Commission.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit by mail, first class
postage prepaid, or reputable overnight delivery service that provides for
evidence of receipt, to the Securityholders, as their names and addresses appear
upon the Securities Register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this Section as may
be required by rules and regulations prescribed from time to time by the
Commission.
(d) Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
SECTION 6.04. Reports by the Trustee.
(a) Beginning January 31, 2000, on or before January 31 in each year
in which any of the Subordinated Debentures are Outstanding, the Trustee shall
transmit by mail, first class postage prepaid, to the Securityholders, as their
names and addresses appear upon the Securities Register, a brief report dated as
of the preceding December 31, if and to the extent required under Section 313(a)
of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c) of the
Trust Indenture Act.
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(c) A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with the Company, and also with the
Commission.
ARTICLE VII
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 7.01. Events of Default.
(a) Whenever used herein, "Event of Default" means any one or more of
the following events that has occurred and is continuing:
(i) the Company defaults in the payment of any installment of
interest upon any of the Subordinated Debentures, as and when the same
shall become due and payable, and continuance of such default for a period
of 30 days; provided, however, that a valid extension of an interest
payment period by the Company in accordance with the terms of this
Indenture shall not constitute a default in the payment of interest for
this purpose;
(ii) the Company defaults in the payment of the principal of any
of the Subordinated Debentures as and when the same shall become due and
payable whether at maturity, upon redemption, by declaration or otherwise;
(iii) Reserved;
(iv) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case, (B) consents to the entry of
an order for relief against it in an involuntary case, (C) consents to the
appointment of a custodian of it or for all or substantially all of its
property or (D) makes a general assignment for the benefit of its
creditors;
(v) a court of competent jurisdiction enters an order under any
Bankruptcy Law that (A) is for relief against the Company in an involuntary
case, (B) appoints a custodian of the Company for all or substantially all
of its property, or (C) orders the liquidation of the Company, and the
order or decree remains unstayed and in effect for 90 days; or
(vi) in the event Subordinated Debentures are issued to the Trust
or a trustee of the Trust in connection with the issuance of Trust
Securities by the Trust, the Trust shall have voluntarily or involuntarily
dissolved, wound up its business or otherwise terminated its existence,
except in connection with (A) the distribution of Subordinated Debentures
to holders of Trust Securities in liquidation of their interests in the
Trust, (B) the redemption of all of the outstanding Trust Securities of the
Trust or (C) certain mergers, consolidations or amalgamations, each as
permitted by the Trust Agreement.
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(b) In each and every such case, unless the principal of all the
Subordinated Debentures shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Subordinated Debentures then Outstanding hereunder, by notice in writing to the
Company (and to the Trustee if given by such Securityholders) may declare the
principal of all the Subordinated Debentures to be due and payable immediately,
and upon any such declaration the same shall become and shall be immediately due
and payable, notwithstanding anything contained in this Indenture or in the
Subordinated Debentures to the contrary.
(c) At any time after the principal of the Subordinated Debentures
shall have been so declared due and payable, and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Holders of a majority in aggregate principal amount of
the Subordinated Debentures then Outstanding, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences if:
(i) the Company has paid or deposited with the Trustee a sum sufficient to pay
all matured installments of interest upon all the Subordinated Debentures and
the principal of any and all Subordinated Debentures that shall have become due
otherwise than by acceleration (with interest upon such principal and, to the
extent that such payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the Subordinated
Debentures to the date of such payment or deposit) and all amounts payable to
the Trustee under Section 9.07, and (ii) any and all Events of Default under
this Indenture, other than the nonpayment of principal on Subordinated
Debentures that shall not have become due by their terms, shall have been
remedied or waived as provided in Section 7.06. Should the Holders fail to annul
such declaration and waive such default, then the holders of a majority in
aggregate Liquidation Amount of the Preferred Securities shall have such right.
No such rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right with
respect to Subordinated Debentures under this Indenture and such proceedings
shall have been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined adversely to the
Trustee, then and in every such case the Company and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company and the Trustee shall continue as
though no such proceedings had been taken.
Section 7.02. Collection of Indebtedness and Suits for Enforcement by Trustee.
(a) The Company covenants that (i) in case it shall default in the
payment of any installment of interest on any of the Subordinated Debentures as
and when the same shall have become due and payable, and such default shall have
continued for a period of 90 Business Days, or (ii) in case it shall default in
the payment of the principal of any of the Subordinated Debentures when the same
shall have become due and payable, whether upon maturity of the Subordinated
Debentures or upon redemption or upon declaration or
24
otherwise, then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the Holders of the Subordinated Debentures, the
whole amount that then shall have become due and payable on all such
Subordinated Debentures for principal or interest, or both, as the case may be,
with interest upon the overdue principal and (to the extent that payment of such
interest is enforceable under applicable law and, if the Subordinated Debentures
are held by the Trust or a trustee of the Trust, without duplication of any
other amounts paid by the Trust or trustee in respect thereof) upon overdue
installments of interest at the rate per annum expressed in the Subordinated
Debentures; and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, and all amounts payable to the
Trustee under Section 9.07.
(b) If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the
Subordinated Debentures and collect the moneys adjudged or decreed to be payable
in the manner provided by law out of the property of the Company or other
obligor upon the Subordinated Debentures, wherever situated.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial proceedings
affecting the Company or the creditors or property of either, the Trustee shall
have power to intervene in such proceedings and take any action therein that may
be permitted by the court and shall (except as may be otherwise provided by law)
be entitled to file such proofs of claim and other papers and documents as may
be necessary or advisable in order to have the claims of the Trustee and of the
Holders of Subordinated Debentures allowed for the entire amount due and payable
by the Company under this Indenture at the date of institution of such
proceedings and for any additional amount that may become due and payable by the
Company after such date, and to collect and receive any moneys or other property
payable or deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 9.07; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the Holders to make such payments to the Trustee, and, in
the event that the Trustee shall consent to the making of such payments directly
to such Securityholders, to pay to the Trustee all amounts due it under Section
9.07.
(d) All rights of action and of asserting claims under this Indenture may
be enforced by the Trustee without the possession of any of the Subordinated
Debentures, or the production thereof at any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for payment to the Trustee of all amounts due
under Section 9.07, be for the ratable benefit of the Holders of the
Subordinated Debentures.
25
In case of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in 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.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Subordinated Debentures 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.
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 Subordinated Debentures, and it shall not be necessary to make any
holders of the Subordinated Debentures parties to any such proceedings.
SECTION 7.03. Application of Moneys Collected. Any moneys collected by the
Trustee pursuant to this Article with respect to the Subordinated Debentures
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of principal
or interest, upon presentation of the Subordinated Debentures, and notation
thereon the payment, if only partially paid, and upon surrender thereof if fully
paid:
FIRST, to the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 9.07;
SECOND, to the payment of all Senior and Subordinated Debt of the
Company if and to the extent required by Article XVI; and
THIRD, to the payment of the amounts then due and unpaid upon
Subordinated Debentures for principal and interest, in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Subordinated Debentures for principal and interest,
respectively.
SECTION 7.04. Limitation on Suits. No Holder shall have any right by virtue
of or by availing any provision of this Indenture to institute any suit, action
or proceeding in equity or at law upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (a) such Holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof;
(b) the Holders of not less than 25% in aggregate principal amount of the
Subordinated Debentures then Outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
trustee hereunder; (c) such Holder or Holders shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby; and (d) the Trustee for 60 days
after its receipt of such notice,
26
request and offer of indemnity shall have failed to institute any such action,
suit or proceeding; and (e) during such 60-day period, the Holders of a majority
in principal amount of the Subordinated Debentures do not give the Trustee a
direction inconsistent with the request.
Notwithstanding any other provisions of this Indenture to the contrary, the
right of any Holder to receive payment of the principal of and interest on the
Subordinated Debentures on or after the respective due dates (or in the case of
redemption, on the redemption date), or to institute suit for the enforcement of
any such payment on or after such respective dates or redemption date, shall not
be impaired or affected without the consent of such Holder; and by accepting a
Subordinated Debenture hereunder it is expressly understood, intended and
covenanted by the Holder thereof with every other such Holder and the Trustee,
that no one or more Holders shall have any right in any manner whatsoever by
virtue of or by availing any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders, or to obtain or seek to obtain
priority over or preference to any such other Holders, 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 Subordinated Debentures. 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 7.05. Rights and Remedies Cumulative; Delay or Omission Not Waiver.
(a) Except as otherwise provided in Section 7.02, all powers and
remedies given by this Article 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 Subordinated Debentures, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture or otherwise established with
respect to such Subordinated Debentures.
(b) No delay or omission of the Trustee or of any Holder of any
of the Subordinated Debentures 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 on acquiescence therein; and, subject to the provisions of
Section 7.04, every power and remedy given by this Article or by law to the
Trustee or the Securityholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 7.06. Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Subordinated Debentures at the time
Outstanding, determined in accordance with Section 10.04, shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee; provided, however, that such direction shall not be in conflict with
any rule of law or with this Indenture. Subject to the provisions of Section
9.01, the Trustee shall have the right to decline to follow any such direction
if the Trustee in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed would involve the Trustee in
personal liability. The Holders of a majority in aggregate principal amount of
the Subordinated Debentures at the time Outstanding affected thereby, determined
in
27
accordance with Section 10.04, may on behalf of the Holders of all of the
Subordinated Debentures waive any past default in the performance of any of the
covenants contained herein and its consequences, except (a) a default in the
payment of the principal of or interest on any of the Subordinated Debentures as
and when the same shall become due by its terms otherwise than by acceleration
(unless such default has been cured and a sum sufficient to pay all matured
installments of interest and principal has been deposited with the Trustee in
accordance with Section 7.01(c)), (b) a default in the covenants contained in
Section 5.06 or (c) in respect of a covenant or provision hereof which under
Article XI cannot be modified or amended without the consent of the Holder of
each Outstanding Subordinated Debenture affected; provided, however, that if the
Subordinated Debentures are held by the Trust or a trustee of the 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 Subordinated Debenture is
required, such waiver shall not be effective until each Holder (as defined in
the Trust Agreement) 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 Subordinated Debentures shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 7.07. Undertaking to Pay Costs. All parties to this Indenture
agree, and each Holder of any Subordinated Debentures by such Holder's
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the
Outstanding Subordinated Debentures, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or
interest on the Subordinated Debentures on or after the due dates thereof.
ARTICLE VIII
FORM OF SUBORDINATED DEBENTURE AND ORIGINAL ISSUE
SECTION 8.01. Form of Subordinated Debenture. The Subordinated Debenture
and the Trustee's Certificate of Authentication to be endorsed thereon are to be
substantially in the forms contained as Exhibit A to this Indenture, attached
---------
hereto and incorporated herein by reference.
SECTION 8.02. Original Issue of Subordinated Debentures. Subordinated
Debentures in the aggregate principal amount of $__________________ may, upon
execution of this Indenture, be executed by the Company and delivered to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver the Subordinated Debentures to or upon the
28
written order of the Company, signed by its Chairman, its Vice Chairman, its
Chief Executive Officer, its President or any Vice President, without any
further action by the Company.
ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 9.01. Certain Duties and Responsibilities of the Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform with respect to the Subordinated Debentures 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 has occurred (that 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 same degree of care and
skill in their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct or bad faith, except that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default that may
have occurred:
(A) the duties and obligations of the Trustee 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 as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(B) in the absence of willful misconduct or 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 that by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to
determine only whether or not on their face they conform to
the requirement of this Indenture;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts ;
(iii) 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
29
Holders of not less than a majority in principal amount of the
Subordinated Debentures at the time Outstanding relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee under this Indenture; and
(iv) 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 the Trustee
reasonably believes that the repayment of such funds or liability is
not reasonably assured to it under the terms of this Indenture or
adequate indemnity against such risk is not reasonably assured to it.
SECTION 9.02. Notice of Defaults. Within 90 days after a Responsible
Officer of the Trustee has actual knowledge of the occurrence of any default
hereunder with respect to the Subordinated Debentures, the Trustee shall
transmit by mail to all holders of the Subordinated Debentures, as their names
and addresses appear in the Securities Register, notice of such default, unless
such default shall have been cured or waived; provided, however, that except in
the case of a default in the payment of the principal and interest (including
any Additional Sums) on any Subordinated Debenture, the Trustee shall be
protected in withholding such notice if and so long as a Responsible Officer of
the Trustee determines in good faith that the withholding of such notice is in
the interests of the holders of such Subordinated Debentures; and provided,
further, that in the case of any default of the character specified in section
7.01(a)(iii), no such notice to holders of the Subordinated Debentures need be
sent until at least 30 days after the occurrence thereof. For the purposes of
this Section 9.02, the term "default" means any event which is, or after notice
or lapse of time or both, would become, an Event of Default with respect to the
Subordinated Debentures.
SECTION 9.03. Certain Rights of Trustee. Except as otherwise provided in
Section 9.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board Resolution or
an instrument signed in the name of the Company by the Chief Executive
Officer, the President or any Vice President and by the Secretary or an
Assistant Secretary or the Chief Accounting Officer thereof (unless other
evidence in respect thereof is specifically prescribed herein);
(c) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted hereunder in good faith and in reliance thereon;
(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
30
Securityholders, pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee security or indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities that may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default (that has not been cured or waived) to
exercise 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;
(e) the Trustee shall not be liable for any action taken or omitted to
be taken by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
(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, security or other papers or documents, unless requested in writing so
to do by the Holders of not less than a majority in principal amount of the
Outstanding Subordinated Debentures (determined as provided in Section
10.04); provided, however, that if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by the
terms of this Indenture, the Trustee may require reasonable indemnity
against such costs, expenses or liabilities as a condition to so
proceeding. The reasonable expense of every such examination shall be paid
by the Company or, if paid by the Trustee, shall be repaid by the Company
upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 9.04. Trustee not Responsible for Recitals or Issuance of the
Subordinated Debentures.
(a) The recitals contained herein and in the Subordinated Debentures
shall be taken as the statements of the Company and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Subordinated Debentures.
(c) The Trustee shall not be accountable for the use or application by
the Company of any of the Subordinated Debentures or of the proceeds of
such Subordinated Debentures, or for the use or application of any moneys
paid over by the Trustee in accordance with any provision of this
Indenture, or for the use or application of any moneys received by any
paying agent other than the Trustee.
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Section 9.05. May Hold Subordinated Debentures. The Trustee or any paying
agent or Securities Registrar, in its individual or any other capacity, may
become the owner or pledgee of Subordinated Debentures with the same rights it
would have if it were not Trustee, paying agent or Securities Registrar.
Section 9.06. Moneys Held in Trust. Subject to the provisions of Section
13.05, all moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any moneys received by
it hereunder except such as it may otherwise agree in writing with the Company
to pay thereon.
Section 9.07. Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to the Trustee, and
the Trustee shall be entitled to, such reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), as the Company and the Trustee may from time
to time agree in writing, for all services rendered by it in the execution
of the trusts hereby created and in the exercise and performance of any of
the powers and duties hereunder of the Trustee, and, except as otherwise
expressly provided herein, the Company will pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all Persons not regularly in its
employ) except any such expense, disbursement or advance as may arise from
its willful misconduct, negligence or bad faith. To the fullest extent
permitted by law, the Company hereby indemnifies the Trustee (including in
its individual capacity) (and its officers, agents, directors and
employees) for, and holds it harmless against, any loss, liability or
expense to the extent incurred without willful misconduct, negligence or
bad faith on the part of the Trustee and arising out of or in connection
with the acceptance or administration of this Indenture or the performance
of its duties or exercise of its rights or powers hereunder, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its rights, powers or
duties hereunder.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the Trustee
for expenses, disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be secured by a
lien prior to that of the Subordinated Debentures 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 the Subordinated Debentures.
(c) When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 7.01(a)(iv), (v) or (vi) occurs, the
expenses and compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law or a successor statute.
32
(d) Notwithstanding anything in this Indenture or any
Subordinated Debenture 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 Subordinated Debentures or
otherwise advance funds to or on behalf of the Company.
(e) The provisions of this Section 9.07 shall survive the
discharge or termination of this Indenture and shall survive the
resignation or removal of the Trustee.
Section 9.08. Reliance on Officers' Certificate. Except as otherwise
provided in Section 9.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting to take any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of willful misconduct,
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 willful misconduct, negligence or bad faith
on the part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted to be taken by it under the provisions of this
Indenture upon the faith thereof.
Section 9.09. Disqulification; Conflicting Interests. If the Trustee has or
shall acquire any "conflicting interest" within the meaning of Section 310(b) of
the Trust Indenture Act, the Trustee and the Company shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 9.10. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee with respect to the Subordinated Debentures issued hereunder
which shall at all times be a Person organized and doing business under the laws
of the United States of America or any state or territory thereof or of the
District of Columbia, or a corporation or other Person permitted to act as
trustee by the Commission, authorized under such laws to exercise trust powers,
having a combined capital and surplus of at least $500,000 (and its parent
holding company, if any, having a combined capital and surplus of at least
$50,000,000) and subject to supervision or examination by federal, state,
territorial, or District of Columbia authority. If such Person publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. No Affiliate of the Company may serve as Trustee. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 9.11.
Section 9.11. Resignation and Removal; Appointment of Successor.
(a) The Trustee, or any successor hereafter appointed, may at any
time resign by giving written notice thereof to the Company and by
transmitting notice of resignation by mail, first class postage prepaid, to
the Securityholders, as their names and addresses appear upon the
Securities Register. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee by written instrument, in
duplicate,
33
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee, or any Securityholder who has been a bona fide Holder of
Subordinated Debentures for at least six months may, subject to the provisions
of Section 7.07, on behalf of such Securityholder and all other Holders,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section
9.09 after written request therefor by the Company or by any Securityholder
who has been a bona fide Holder of Subordinated Debentures for at least six
months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 9.10 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall be
appointed or consented to, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 7.07, unless the Trustee's duty to resign is stayed as
provided herein, any Securityholder who has been a bona fide Holder of
Subordinated Debentures for at least six months may, on behalf of that Holder
and all other Holders, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee. Such court
may thereupon after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Subordinated Debentures at the time Outstanding may at any time remove the
Trustee by so notifying the Trustee and the Company and may appoint a successor
Trustee with the consent of the Company.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 9.12.
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Section 9.12. Acceptance of appointment by Successor
(a) In case of the appointmenthereunder of a successor trustee,
every such successor trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of
the Company or the successor trustee, such retiring Trustee shall, upon its
receipt of all amounts payable for it under Section 9.07, execute and
deliver an instrument transferring to such successor trustee all the
rights, powers, and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and money held
by such retiring Trustee hereunder. 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 to it pursuant to the
provisions of Section 9.07.
(b) Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, powers and trusts
referred to in paragraph (a) of this Section.
(c) No successor trustee shall accept its appointment unless at
the time of such acceptance such successor trustee shall be qualified and
eligible under this Article.
(d) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage prepaid,
to the Securityholders, as their names and addresses appear upon the
Securities Register. If the Company fails to transmit such notice within
ten days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be transmitted at the expense
of the Company.
Section 9.13. Merger, Conversion, Consolidation or Succession to Business
Any Person into which the Trustee may be merged or converted or with which it
may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
all or substantially all of the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided that such Person shall be
qualified and eligible under the provisions of this Article IX, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding. In case any
Subordinated Debentures shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Subordinated Debentures so authenticated with the same effect as if such
successor Trustee had itself authenticated such Subordinated Debentures.
Section 9.14. Preferential Collection of Claims Against the Company.
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship described in Section 311(b) of the Trust Indenture
Act. A Trustee who has resigned or been
35
removed shall be subject to Section 311(a) of the Trust Indenture Act to the
extent included therein.
Section 9.15. Appointment of Authenticating Agent. At any time when any of
the the Subordinated Debentures remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents which shall be authorized to act on behalf of the
Trustee to authenticate Subordinated Debentures issued upon original issuance,
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 2.08, and Subordinated Debentures so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Subordinated
Debentures by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a Person organized and doing business under the laws of the United States of
America, any state thereof or the District of Columbia, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of
not less than $500,000 (and its parent holding company having a combined capital
and surplus of at least $50,000,000) and subject to supervision or examination
by federal or state authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of such
supervision or examining authority, for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any Person into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any Person succeeding to the corporate agency or corporate trust business of
an Authenticating Agent, shall continue to be an Authenticating Agent, provided
such corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such notice of
resignation or upon such termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall mail written notice of such appointment by
first class mail, postage prepaid, to all Securityholders as their names and
addresses appear in the Securities Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with the like effect as
if originally named as an Authenticating Agent herein. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
36
The Company agrees to pay to each Authenticating Agent such reasonable
compensation as the Company and the Authenticating Agent may from time to time
have agreed to in writing for its services under this Section, and pursuant to
the provisions of Section 9.07 the Trustee shall be entitled to be reimbursed
for such payments, if any, it makes to an Authenticating Agent.
If an appointment is made pursuant to this Section, the Subordinated
Debentures may have endorsed thereon, in lieu of the form of certificate of
authentication set forth in Section 8.01, a certificate of authentication in the
following form:
"This is one of the Subordinated Debentures described in the within
mentioned Indenture."
_______________________________,
as Trustee
By ____________________________,
as Authenticating Agent
By ____________________________,
Authorized Signature
ARTICLE X
CONCERNING THE SECURITYHOLDERS
Section 10.01. Evidence of Action by Securityholders. Whenever in this
Indenture it is provided that the Holders of a majority or specified percentage
in aggregate principal amount of the Subordinated Debentures may take any action
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that at the time
of taking any such action the Holders of such majority or specified percentage
have joined therein may be evidenced by any instrument or any number of
instruments of similar tenor executed by such Holders in Person or by agent or
proxy appointed in writing.
If the Company shall solicit from the Securityholders any request, demand,
authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, as evidenced by an Officers' Certificate, fix in advance a
record date for the determination of Securityholders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
action, but the Company shall have no obligation to do so. If such a record date
is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other action may be given before or after the record date, but only
the Securityholders of record at the close of business on the record date shall
be deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Subordinated
Debentures have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that
purpose the Outstanding Subordinated Debentures shall be computed as of the
record date; provided, however, that no such authorization,
37
agreement or consent by such Securityholders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
Section 10.02. Proof of Execution by Securityholders. Subject to the
provisions of Sections 6.01, 9.01, 9.03 and 10.05, proof of the execution of any
instrument by a Securityholder (such proof will not require notarization) or his
agent or proxy and proof of the holding by any Person of any of the Subordinated
Debentures shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b) The ownership of Subordinated Debentures shall be proved by the
Securities Register or by a certificate of the Securities Registrar
thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
Section 10.03. Who may be Deemed Owners. Prior to the due presentment for
registration of transfer of any Subordinated Debenture, the Company, the
Trustee, any paying agent and any Securities Registrar may deem and treat the
Person in whose name such Subordinated Debenture shall be registered upon the
Security Register as the absolute owner of such Subordinated Debenture (whether
or not such Subordinated Debenture shall be overdue and notwithstanding any
notice of ownership or writing thereon made by anyone other than the Securities
Registrar) for the purpose of receiving payment of or on account of the
principal of and (subject to Section 2.05) interest on such Subordinated
Debenture and for all other purposes; and neither the Company nor the Trustee
nor any paying agent nor any Securities Registrar shall be affected by any
notice to the contrary. All such payments so made to any holder shall be valid
and, to the extent of the sum or sums so paid, effective to satisfy and
discharge the liability for monies payable upon any such Subordinated Debenture.
Section 10.04. Certain Subordinated Debentures Owned by Company
Disregarded. In determining whether the Holders of the requisite aggregate
principal amount of Subordinated Debentures have concurred in any direction,
consent or waiver under this Indenture, the Subordinated Debentures that are
owned by the Company or any other obligor on the Subordinated Debentures or by
any Person directly or indirectly controlling or controlled by or under common
control with the Company or any other obligor on the Subordinated Debentures
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Subordinated Debentures that a Responsible Officer of the Trustee actually
knows are so owned shall be so disregarded. The Subordinated Debentures so owned
that have been pledged in good faith may be regarded as Outstanding for the
purposes of this Section, if the pledgee shall establish to the satisfaction of
the Trustee the pledgee's right to vote such Subordinated Debentures and that
the pledgee is not a Person directly or indirectly controlling or controlled by
or under direct or indirect common
38
control with the Company or any such other obligor. In case of a dispute as to
such right, any decision by the Trustee taken upon the advice of counsel shall
be full protection to the Trustee.
Section 10.05. Actions Binding on Future Securityholders. At any time prior
to (but not after) the evidencing to the Trustee, as provided in Section 10.01,
of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Subordinated Debentures specified in this Indenture in
connection with such action, any Holder who is shown by the evidence to have
consented to such action may, by filing written notice with the Trustee, and
upon proof of holding as provided in Section 10.02, revoke such action so far as
concerns such Holder's Subordinated Debentures. Except as aforesaid any such
action taken by the Holder shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Holder's Subordinated Debentures, and
of any Subordinated Debentures issued in exchange therefor, on registration of
transfer thereof or in place thereof, irrespective of whether or not any
notation in regard thereto is made upon such Subordinated Debentures. Any action
taken by the Holders of the percentage in aggregate principal amount of the
Subordinated Debentures specified in this Indenture in connection with such
action shall be conclusively binding upon the Company, the Trustee and the
Holders of all the Subordinated Debentures.
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without the Consent of
Securityholders. In addition to any supplemental indenture otherwise authorized
by this Indenture, the Company and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect), without
the consent of the Securityholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency herein, or
in the Subordinated Debentures, provided that any such action does not
materially adversely affect the interests of the Holders or the holders of
the Preferred Securities so long as they remain outstanding;
(b) to comply with Article XII;
(c) to provide for uncertificated Subordinated Debentures in
addition to or in place of certificated Subordinated Debentures;
(d) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon the
Company;
(e) to make any change that does not adversely affect the rights
of any Securityholder in any material respect; or
(f) to establish the form of any certifications required to be
furnished pursuant to the terms of this Indenture or to add to the rights
of the Holders.
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The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to, but may in its discretion, enter into any such supplemental
indenture that affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed by the Company and the Trustee without the consent of the Holders of
any of the Subordinated Debentures at the time Outstanding, notwithstanding any
of the provisions of Section 11.02.
Section 11.02. Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Section 10.01) of the Holders of not
less than a majority in aggregate principal amount of the Subordinated
Debentures at the time Outstanding, the Company, when authorized by Board
Resolutions, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect) for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying in
any manner not covered by Section 11.01 the rights of the Holders of the
Subordinated Debentures under this Indenture; provided, however, that no such
supplemental indenture shall without the consent of the Holders of each
Subordinated Debenture then Outstanding, (a) change (except as expressly
provided herein pursuant to Section 2.02) the stated maturity of the
Subordinated Debentures or reduce the principal amount thereof; or reduce the
rate or extend (except as expressly provided herein pursuant to Section 4.01)
the time of payment of interest thereon; or (b) reduce the percentage of
principal amount of Subordinated Debentures, the Holders of which are required
to consent to any such supplemental indenture; provided, further, that if the
Subordinated Debentures are held by the Trust or a trustee of the Trust, such
supplemental indenture shall not be effective until the holders of a majority in
aggregate Liquidation Amount of Preferred Securities shall have consented to
such supplemental indenture; provided further, that if the consent of the Holder
of each Outstanding Subordinated Debenture is required, such supplemental
indenture shall not be effective until each Holder of the Trust Securities shall
have consented to such supplemental indenture.
It shall not be necessary for the consent of the Securityholders to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
Section 11.03. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article or of Section
12.01, this Indenture shall be and be deemed to be modified and amended in
accordance therewith.
Section 11.04. Subordinated Debentures Affected by Supplemental
Indentures. Subordinated Debentures, affected by a supplemental indenture,
authenticated and delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article or of Section 12.01, may bear a
notation in form approved by the Company, as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Subordinated
Debentures so modified as to conform, in the opinion of the Board of Directors,
to any modification of this Indenture contained in any such supplemental
indenture may be prepared
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and executed by the Company, authenticated by the Trustee or the Authenticating
Agent and delivered in exchange for the Subordinated Debentures then
Outstanding.
Section 11.05. Execution of Supplemental Indentures. Upon the request of
the Company, accompanied by Board Resolutions authorizing the execution of any
such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders required to consent thereto as aforesaid, the
Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion but shall not be obligated to enter into such
supplemental indenture. The Trustee, subject to the provisions of Sections 9.01
and 9.03, may receive an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article is authorized or
permitted by, and conforms to, and complies with the requirements of, the Trust
Indenture Act and the terms of this Article and that it is proper for the
Trustee under the provisions of this Article to join in the execution thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in
general terms the substance of such supplemental indenture, to the
Securityholders as their names and addresses appear upon the Securities
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.
ARTICLE XII
SUCCESSOR CORPORATION
Section 12.01. Company May Consolidate, Etc. The Company shall not
consolidate with or merge into any other Person or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, and no Person
shall consolidate with or merge into the Company or convey, transfer or lease
its properties and assets substantially as an entirety to the Company, unless
(a) in case the Company consolidates with or merges into another Person or
conveys or transfers its properties and assets substantially as an entirety to
any Person, the successor Person is organized under the laws of the United
States or any state or the District of Columbia, and such successor Person
expressly assumes the Company's obligations on the Subordinated Debentures
issued under this Indenture; (b) immediately after giving effect thereto, no
Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be continuing; and (c)
such successor Person expressly assumes the due and punctual performance and
observance of all the covenants and conditions of this Indenture to be kept and
performed by the Company by executing and delivering a supplemental indenture in
form and substance satisfactory to the Trustee.
Section 12.02. Successor Substituted.
(a) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition and upon the assumption by the successor
Person by supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee,
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of the due and punctual payment of the principal of and interest on all of
the Subordinated Debentures Outstanding and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Company, such successor Person shall succeed to and be
substituted for the Company, with the same effect as if it had been named
as the Company herein, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the
Subordinated Debentures.
(b) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition such changes in phraseology and form (but not
in substance) may be made in the Subordinated Debentures thereafter to be
issued as may be appropriate.
Section 12.03. Evidence of Consolidation, Etc., to trustee. The Trustee,
subject to the provisions of Sections 9.01 and 9.03, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale,
conveyance, transfer or other disposition, and any such assumption, comply with
the provisions of this Article.
ARTICLE XIII
SATISFACTION AND DISCHARGE
Section 13.01. Satisfaction and Discharge of Indenture. If at any time: (a)
the Company shall have delivered to the Trustee for cancellation all
Subordinated Debentures theretofore authenticated (other than any Subordinated
Debentures that shall have been destroyed, lost or stolen and that shall have
been replaced or paid as provided in Section 2.08) and not theretofore cancelled
and Subordinated Debentures for whose payment money or Governmental Obligations
have theretofore been deposited in trust or segregated and held in trust by the
Company (and thereupon repaid to the Company or discharged from such trust, as
provided in Section 13.05); or (b) all such Subordinated Debentures not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and the Company shall
deposit or cause to be deposited with the Trustee as trust funds the entire
amount in moneys or Governmental Obligations sufficient or a combination thereof
sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay at maturity or upon redemption all Subordinated Debentures not
theretofore delivered to the Trustee for cancellation, including principal and
interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company; then this Indenture shall
thereupon cease to be of further effect except for the provisions of Sections
2.02, 2.03, 2.04, 2.05, 4.01, 4.02, 4.03 and 9.11, that shall survive until the
date of maturity or redemption date, as the case may be, and Sections 9.07 and
13.05, that shall survive to such date and thereafter, and the Trustee, on
demand of the Company accompanied by an Officer's Certificate and Opinion of
Counsel, and at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture.
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Section 13.02. Discharge of Obligations. If at any time all such
Subordinated Debentures not theretofore delivered to the Trustee for
cancellation or that have not become due and payable as described in Section
13.01 shall have been paid by the Company by depositing irrevocably with the
Trustee, as trust funds, moneys or an amount of Governmental Obligations
sufficient to pay at maturity or upon redemption all such Subordinated
Debentures not theretofore delivered to the Trustee for cancellation, including
principal and interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company, then after the
date such moneys or Governmental Obligations, as the case may be, are deposited
with the Trustee the obligations of the Company under this Indenture shall cease
to be of further effect except for the provisions of Sections 2.02, 2.03, 2.04,
2.05, 4.01, 4.02, 4.03, 9.07, 9.11 and 13.05 hereof that shall survive until
such Subordinated Debentures shall mature and be paid. Thereafter, Sections 9.07
and 13.05 shall survive.
Section 13.03. Deposited Moneys to be Held in Trust. All moneys or
Governmental Obligations deposited with the Trustee pursuant to Sections 13.01
or 13.02 shall be held in trust and shall be available for payment as due,
either directly or through any paying agent (including the Company acting as its
own paying agent), to the Holders of the Subordinated Debentures for the payment
or redemption of which such moneys or Governmental Obligations have been
deposited with the Trustee.
Section 13.04. Payment of Moneys held by Paying Agents. In connection with
the satisfaction and discharge of this Indenture all moneys or Governmental
Obligations then held by any paying agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee and thereupon such
paying agent shall be released from all further liability with respect to such
moneys or Governmental Obligations.
Section 13.05. Repayment to Company. Any moneys or Governmental
Obligations deposited with any paying agent or the Trustee, or then held by the
Company in trust for payment of principal of or interest on the Subordinated
Debentures that are not applied but remain unclaimed by the Holders of such
Subordinated Debentures for at least two years after the date upon which the
principal of or interest on such Subordinated Debentures shall have respectively
become due and payable, shall be repaid to the Company on the second annual
anniversary of when such payment was originally due or (if then held by the
Company) shall be discharged from such trust; and thereupon the paying agent and
the Trustee shall be released from all further liability with respect to such
moneys or Governmental Obligations, and the Holder of any of the Subordinated
Debentures entitled to receive such payment shall thereafter, as an unsecured
general creditor, look only to the Company for the payment thereof.
ARTICLE XIV
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01. No Recourse. No recourse under or upon any obligation,
covenant or agreement of this Indenture, or of any Subordinated Debenture, or
for any claim based thereon or otherwise in respect thereof, shall be had
against any incorporator, stockholder, officer or
43
director as such, past, present or future, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such
predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company or of
any predecessor or successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Subordinated Debentures or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director as such,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Subordinated Debentures or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Subordinated Debentures.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.01. Effect on Successors and Assigns. All the covenants,
stipulations, promises and agreements in this Indenture contained by or on
behalf of the Company or the Trustee shall bind their respective successors and
assigns, whether so expressed or not.
Section 15.02. Actions by Successor. Any act or proceeding by any
provision of this Indenture authorized or required to be done or performed by
any board, committee or officer of the Company shall and may be done and
performed with like force and effect by the corresponding board, committee or
officer of any Person that shall at the time be the lawful sole successor of the
Company.
Section 15.03. Surrender of Company Powers. The Company by instrument in
writing executed by authority of 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 successor corporation.
Section 15.04. Notices. Except as otherwise expressly provided herein any
notice or demand that by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Holders of Subordinated
Debentures to or on the Company may be given or served by being deposited first
class postage prepaid in a post-office letterbox addressed (until another
address is filed in writing by the Company with the Trustee), as follows: c/o
Bank of the Ozarks, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Chief Executive Officer. Any notice, election, request or demand by
the Company or any Securityholder to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing
at the Corporate Trust Office of the Trustee.
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Section 15.05. Governing Law. This Indenture and each Subordinated
Debenture shall be deemed to be a contract made under the internal laws of the
State of Maryland and for all purposes shall be construed in accordance with the
laws of said state.
Section 15.06. Treatment of Subordinated Debentures as Debt. It is
intended that the Subordinated Debentures will be treated as indebtedness and
not as equity for federal income tax purposes. The provisions of this Indenture
shall be interpreted to further this intention.
Section 15.07. Compliance Certificates and Opinions.
(a) Upon any application or demand by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as
to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
demand, no additional certificate or opinion need be furnished.
(b) Every certificate or opinion delivered to the Trustee with
respect to compliance with a condition or covenant in this Indenture shall
include (i) a statement that the Person making such certificate or opinion
has read such covenant or condition; (ii) a brief statement as to the
nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of such Person, such Person has made
such examination or investigation as is necessary to enable such Person to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and (iv) a statement as to whether or not, in the
opinion of such Person, such condition or covenant has been complied with.
Section 15.08. Payments on Business Days. In any case where the date of
maturity of interest or principal of the Subordinated Debentures or the date of
redemption of the Subordinated Debentures shall not be a Business Day, then
payment of interest or principal will be made on the next succeeding Business
Day (without any additional 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 the date such payment was
originally payable.
Section 15.09. Conflict with Trust Indenture Act. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
Section 15.10. Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
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Section 15.11. Separability. In case any one or more of the provisions
contained in this Indenture or in the Subordinated Debentures shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Indenture or of the Subordinated Debentures, but this Indenture and the
Subordinated Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
Section 15.12. Assignment. The Company will have the right at all times to
assign any of its respective 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 thereto and their respective successors and
assigns. This Indenture may not otherwise be assigned by the parties hereto.
Section 15.13. Acknowledgment of Rights. The Company acknowledges that,
with respect to any Subordinated Debentures held by the Trust or a trustee of
the Trust, if the Property Trustee of the Trust fails to enforce its rights
under this Indenture as the Holder of the Subordinated Debentures held as the
assets of the Trust, any holder of Preferred Securities may institute legal
proceedings either in law or equity directly against the Company to enforce such
Property Trustee's rights under this Indenture without first instituting any
legal proceedings against such Property Trustee or any other Person or entity.
Notwithstanding 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 principal on the Subordinated Debentures on the date such interest
or principal is otherwise payable (or in the case of redemption, on the
redemption date), the Company acknowledges that a holder of Preferred Securities
may directly institute a proceeding for enforcement of payment to such holder of
the principal of or interest on the Subordinated Debentures having a principal
amount equal to the aggregate Liquidation Amount of the Preferred Securities of
such holder on or after the respective due date specified in the Subordinated
Debentures. This Section 15.13 may not be amended without the prior written
consent of the holders of all of the Preferred Securities.
ARTICLE XVI
SUBORDINATION OF SUBORDINATED DEBENTURES
Section 16.01. Agreement to Subordinate. The Company covenants and agrees,
and each Holder of Subordinated Debentures issued hereunder by such Holder's
acceptance thereof likewise covenants and agrees, that all Subordinated
Debentures shall be issued subject to the provisions of this Article XVI; and
each Holder, 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 interest on all
Subordinated Debentures issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and junior in right of payment to the
prior payment in full of all Senior and Subordinated Debt, whether outstanding
at the date of this Indenture or thereafter incurred.
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No provision of this Article XVI shall prevent the occurrence of any
default or Event of Default hereunder.
Section 16.02. Default on Senior and Subordinated Debt. 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 and
Subordinated Debt of the Company or in the event that the maturity of any Senior
and Subordinated Debt 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 of or interest on the Subordinated Debentures.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 16.02, and a Responsible Officer of the Trustee has
actual knowledge of such prohibition prior to the disposition of such payment by
the Trustee pursuant to a provision of this Indenture, such payment shall be
held in trust for the benefit of, and shall be paid over or delivered to, the
holders of Senior and Subordinated Debt or their respective representatives, or
to the trustee or trustees under any indenture pursuant to which any of such
Senior and Subordinated Debt may have been issued, as their respective interests
may appear, but only to the extent that the holders of the Senior and
Subordinated Debt (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 and Subordinated Debt and only the amounts specified
in such notice to the Trustee shall be paid to the holders of Senior and
Subordinated Debt.
Section 16.03. 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 and Subordinated Debt 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 or
interest on the Subordinated Debentures; and upon any such dissolution or
winding-up or liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to which the Holders or the Trustee would be entitled to
receive from the Company, except for the provisions of this Article XVI, shall
be paid by the Company or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by the
Holders or by the Trustee under the Indenture if received by them or it,
directly to the holders of Senior and Subordinated Debt of the Company (pro rata
to such holders on the basis of the respective amounts of Senior and
Subordinated Debt 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 and
Subordinated Debt may have been issued, as their respective interests may
appear, to the extent necessary to pay such Senior and Subordinated Debt 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 and Subordinated Debt,
before any payment or distribution is made to the Holders or to the Trustee.
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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 and Subordinated Debt of the Company is paid in full,
or provision is made for such payment in money in accordance with its terms,
such payment or distribution shall be held in trust for the benefit of and shall
be paid over or delivered to the holders of such Senior and Subordinated Debt or
their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior and
Subordinated Debt may have been issued, and their respective interests may
appear, as calculated by the Company, for application to the payment of all
Senior and Subordinated Debt of the Company, as the case may be, remaining
unpaid to the extent necessary to pay such Senior and Subordinated Debt 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 and
Subordinated Debt.
For purposes of this Article XVI, 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 XVI with respect to
the Subordinated Debentures to the payment of all Senior and Subordinated Debt
of the Company, as the case may be, that may at the time be outstanding,
provided that (a) such Senior and Subordinated Debt is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment, and
(b) the rights of the holders of such Senior and Subordinated Debt are not,
without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article XII of this Indenture shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 16.03 if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article XII
of this Indenture. Nothing in Section 16.02 or in this Section 16.03 shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
9.07 of this Indenture.
Section 16.04. Subrogation. Subject to the payment in full of all Senior
and Subordinated Debt of the Company, the rights of the Holders of the
Subordinated Debentures shall be subrogated to the rights of the holders of such
Senior and Subordinated Debt to receive payments or distributions of cash,
property or securities of the Company, as the case may be, applicable to such
Senior and Subordinated Debt until the principal of and interest on the
Subordinated Debentures shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of such Senior and
Subordinated Debt of any cash, property or securities to which the Holders of
the Subordinated Debentures or the Trustee would be entitled except for the
provisions of this Article XVI, and no payment over pursuant to the provisions
of this Article XVI to or for the benefit of the holders of such Senior and
Subordinated Debt by Holders of the Subordinated Debentures or the Trustee,
shall, as between the Company, its creditors other than holders of Senior and
Subordinated Debt of the Company, and the Holders of the Subordinated
Debentures, be deemed to be a payment by the Company to or on account of such
Senior and Subordinated Debt. It is understood that the provisions of this
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Article XVI are and are intended solely for the purposes of defining the
relative rights of the Holders of the Subordinated Debentures, on the one hand,
and the holders of such Senior and Subordinated Debt on the other hand.
Nothing contained in this Article XVI or elsewhere in this Indenture or in
the Subordinated Debentures is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior and Subordinated Debt of
the Company, and the Holders of the Subordinated Debentures, the obligation of
the Company, which is absolute and unconditional, to pay to the Holders of the
Subordinated Debentures the principal of and interest on the Subordinated
Debentures as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Holders of the Subordinated Debentures and creditors of the Company, other than
the holders of Senior and Subordinated Debt of the Company, nor shall anything
herein or therein prevent the Trustee or the Holder of any Subordinated
Debenture from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article XVI of the holders of such Senior and Subordinated Debt in respect of
cash, property or securities of the Company, as the case may be, received upon
the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to in
this Article XVI, the Trustee and the Holders of the Subordinated Debentures
shall be entitled to conclusively rely upon any order or decree made by any
court of competent jurisdiction in which such dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidation trustee, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of the Subordinated Debentures, for the purposes of ascertaining the Persons
entitled to participate in such distribution, the holders of Senior and
Subordinated Debt and other indebtedness of the Company, as the case may be, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article XVI.
Section 16.05. Trustee to Effectuate Subordination. Each Holder of
Subordinated Debentures by such Holder's acceptance thereof authorizes and
directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article XVI and appoints the Trustee such Holder's attorney-in-fact for any and
all such purposes.
Section 16.06. Notice by the Company. The Company shall give prompt
written notice to a Responsible Officer of the Trustee of any fact known to the
Company that would prohibit the making of any payment of moneys to or by the
Trustee in respect of the Subordinated Debentures pursuant to the provisions of
this Article XVI. Notwithstanding the provisions of this Article XVI 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 moneys to or by the Trustee in respect of the Subordinated Debentures
pursuant to the provisions of this Article XVI, unless and until a Responsible
Officer of the Trustee shall have received written notice thereof from the
Company or a holder or holders of Senior and Subordinated Debt or from any
trustee therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Sections 9.01 and 9.03, 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
49
provided for in this Section 16.06 at least two Business Days prior to the date
upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of or interest on
any Subordinated Debenture), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purposes for which it was received, and shall
not be affected by any notice to the contrary that may be received by it within
two Business Days prior to such date.
The Trustee, subject to the provisions of Sections 9.01 and 9.03, 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 and Subordinated Debt of
the Company (or a trustee on behalf of such holder), to establish that such
notice has been given by a holder of such Senior and Subordinated Debt or a
trustee on behalf of any such holder or holders. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of such Senior and Subordinated Debt to
participate in any payment or distribution pursuant to this Article XVI, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior and Subordinated
Debt 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 XVI, 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 16.07. Rights of the Trustee; Holders of Senior and Subordinated
Debt. The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XVI in respect of any Senior and Subordinated
Debt at any time held by it, to the same extent as any other holder of Senior
and Subordinated Debt, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder.
With respect to the holders of Senior and Subordinated Debt of the Company,
the Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XVI, and no implied
covenants or obligations with respect to the holders of such Senior and
Subordinated Debt 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 and Subordinated Debt and, subject to the provisions of Sections 9.01 and
9.03, the Trustee shall not be liable to any holder of such Senior and
Subordinated Debt if it shall pay over or deliver to Holders of Subordinated
Debentures, the Company or any other Person money or assets to which any holder
of such Senior and Subordinated Debt shall be entitled by virtue of this Article
XVI or otherwise.
Section 16.08. Subordination May Not be Impaired. No right of any present
or future holder of any Senior and Subordinated Debt of the Company to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company 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, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or otherwise
be charged with.
50
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior and Subordinated Debt of the Company may, at any time and from
time to time, without the consent of or notice to the Trustee or the Holders of
the Subordinated Debentures, without incurring responsibility to the Holders of
the Subordinated Debentures and without impairing or releasing the subordination
provided in this Article XVI or the obligations hereunder of the Holders of the
Subordinated Debentures to the holders of such Senior and Subordinated Debt, do
any one or more of the following: (a) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, such Senior and
Subordinated Debt, or otherwise amend or supplement in any manner such Senior
and Subordinated Debt or any instrument evidencing the same or any agreement
under which such Senior and Subordinated Debt is outstanding; (b) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior and Subordinated Debt; (c) release any Person
liable in any manner for the collection of such Senior and Subordinated Debt;
and (d) exercise or refrain from exercising any rights against the Company and
any other Person.
51
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
BANK OF THE OZARKS, INC.
By__________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
Chairman and Chief Executive Officer
FMB TRUST COMPANY, NATIONAL ASSOCIATION, as
Trustee
By__________________________________________
Name________________________________________
Title_______________________________________
STATE OF _______________ )
) ss.
COUNTY OF ______________ )
On the _______ day of ____________, 1999, before me personally came ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇, to me known, who, being by me duly sworn, did depose and say
that he is the Chairman and Chief Executive Officer of BANK OF THE OZARKS, INC.,
one of the corporations described in and which executed the above instrument;
and that he signed his name thereto on behalf of said corporation by authority
of the Board of Directors of said corporation.
Witness my hand and official seal:
_____________________________________
Notary Public
My Commission Expires:
__________________________
52
STATE OF MARYLAND )
) ss.
COUNTY OF _____________ )
On the _______ day of ___________, 1999, before me personally came
______________________, to me known, who, being by me duly sworn, did depose and
say that he/she is the _______________________ of FMB Trust Company, National
Association, one of the corporations described in and which executed the above
instrument; and that he/she signed his/her name thereto on behalf of said
corporation by authority of the Board of Directors of said corporation.
Witness my hand and official seal:
_____________________________________
Notary Public
My Commission Expires:
__________________________
53
EXHIBIT A
(FORM OF FACE OF SUBORDINATED DEBENTURE)
This Subordinated Debenture is a [Global] Subordinated Debenture within the
meaning of the Indenture hereinafter referred to and is registered in the name
of [______________] [a Depositary or a nominee of a Depositary]. This
Subordinated Debenture is exchangeable for Subordinated Debentures registered in
the name of a person other than [____________] [the Depositary or its nominee]
only in the limited circumstances described in the Indenture, and no transfer of
this Subordinated Debenture [(other than a transfer of this Subordinated
Debenture as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary)] may be registered except in such limited circumstances.
[Unless this Subordinated Debenture is presented by an authorized
representative of FMB Trust Company, National Association, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Services, to the issuer or
its agent for registration of transfer, exchange or payment, and any
Subordinated Debenture issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of FMB Trust Company,
National Association (and any payment hereon is made to Cede & Co. or to such
other entity as is requested by an authorized representative of FMB Trust
Company, National Association), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch the registered owner
hereof, Cede & Co., has an interest herein.]
Registered Principal Amount
Registered No. _______________ $__________
[CUSIP No. _______________]
BANK OF THE OZARKS, INC.
____% SUBORDINATED DEBENTURE
DUE ________________, 2029
Bank of the Ozarks, Inc., an Arkansas corporation (the "Company," which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to TRUSTEE or registered
assigns, the principal sum of __________________________________________________
Dollars ($__________) on ________________, 2029 (which date may be shortened as
provided in the Indenture, the "Stated Maturity"), and to pay interest on said
principal sum from ________________, 1999, 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, quarterly (subject to deferral as set forth
herein) in arrears on March 31, June 30, September 30 and December 31 in each
year commencing __________, 1999, at the rate of ____% per annum until the
principal hereof 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 the same rate per annum compounded
quarterly. The amount of each interest payment due with respect to the
Subordinated Debentures will include amounts accrued through the date the
interest payment is due. 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 Subordinated
Debenture is not a Business Day (as defined in the Indenture), 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 Subordinated Debenture (or one or more Predecessor
Subordinated Debentures, as defined in the Indenture) is registered at the close
of business on the regular record date for such interest installment, which
shall be the close of business on the business day next preceding such Interest
Payment Date unless otherwise provided in the Indenture. The principal of and
the interest on this Subordinated Debenture shall be payable at the office or
agency of the Trustee (as defined in the Indenture) 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 at the option of the Company by
check mailed to the Registered Holder (as defined in the Indenture) at such
address as shall appear in the Securities Register (as defined in the
Indenture). Notwithstanding the foregoing, so long as the Holder of this
Subordinated Debenture is the Property Trustee (as defined in the Indenture),
the payment of the principal of and interest on this Subordinated Debenture will
be made at such place and to such account as may be designated by the Property
Trustee.
The Stated Maturity may be shortened at any time by the Company to any date
not earlier than ________________, 2004, subject to the Company having received
prior approval of the FRB (as defined in the Indenture) if then required under
applicable capital guidelines or policies of the FRB.
The indebtedness evidenced by this Subordinated Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior and Subordinated Debt (as defined in the
Indenture), and this Subordinated Debenture is issued subject to the provisions
of the Indenture with respect thereto. Each Holder of this Subordinated
Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her attorney-in-
fact for any and all such purposes. 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 and
Subordinated Debt, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
This Subordinated Debenture shall not be entitled to any benefit under the
Indenture, 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.
A-2
The provisions of this Subordinated Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated: _______________ BANK OF THE OZARKS, INC.
By_____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
Chairman and Chief Executive Officer
Attest:
By__________________________
▇▇▇▇▇ ▇▇▇▇▇▇, Secretary
A-3
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Debentures described in the within-
mentioned Indenture.
Dated: FMB Trust Company, National Association,
as Trustee
By_____________________________________
Authorized Signature
A-4
[FORM OF REVERSE OF SUBORDINATED DEBENTURE]
____% SUBORDINATED DEBENTURE
(CONTINUED)
This Subordinated Debenture is one of the Subordinated Debentures of the
Company (herein sometimes referred to as the "Subordinated Debentures"),
specified in the Indenture, all issued under and pursuant to a Subordinated
Indenture dated as of ________________, 1999 (the "Indenture") duly executed and
delivered between the Company and FMB Trust Company, National Association, as
Trustee (the "Trustee"), to which Indenture reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the
Subordinated Debentures. The Subordinated Debentures are limited in aggregate
principal amount as specified in the Indenture.
Because of the occurrence and continuation of a Special Event (as defined
in the Indenture), in certain circumstances, this Subordinated Debenture may
become due and payable at the option of the Company at the principal amount
together with any interest accrued thereon (the "Redemption Price"). The
Redemption Price shall be paid prior to 1:00 p.m. Little Rock, Arkansas time, on
the date of such redemption or at such earlier time as the Company determines.
The Company shall have the right to redeem this Subordinated Debenture at
the option of the Company, in whole or in part, from time to time, on or after
________________, 2004, at a redemption price equal to 100% of the principal
amount to be redeemed plus any accrued but unpaid interest thereon to the date
of such redemption. Any redemption pursuant to this paragraph will be made upon
not less than 30 days' nor more than 60 days' notice. If the Subordinated
Debentures are only partially redeemed by the Company pursuant to this
paragraph, the Subordinated Debentures will be redeemed pro rata or by lot or by
any other method utilized by the Trustee; provided that if, at the time of
redemption, the Subordinated Debentures are registered as a Global Subordinated
Debenture (as defined in the Indenture), the Depositary (as defined in the
Indenture) shall determine the principal amount of such Subordinated Debentures
held by each Subordinated Debenture Holder to be redeemed in accordance with its
procedures.
In the event of redemption of this Subordinated Debenture in part only, a
new Subordinated Debenture for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
Notwithstanding the foregoing, any prepayment of the Subordinated
Debentures by the Company shall be subject to the prior approval of the Board of
Governors of the Federal Reserve System (the "Federal Reserve System"), if such
approval is then required under applicable capital guidelines or policies of the
Federal Reserve, and the receipt of any other required regulatory approvals.
In case an Event of Default (as defined in the Indenture), shall have
occurred and be continuing, the principal of all of the Subordinated Debentures
may be declared, and upon such
A-5
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Subordinated Debentures at the time Outstanding, as
defined in the Indenture, to execute supplemental indentures for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Holders of the Subordinated Debentures; provided,
however, that no such supplemental indenture shall (i) change the stated
maturity of the Subordinated Debentures except as provided in the Indenture, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, without the consent of the Holder of each
Subordinated Debenture so affected, or (ii) reduce the aforesaid percentage of
Subordinated Debentures, the Holders of which are required to consent to any
such supplemental indenture, without the consent of the Holders of each
Subordinated Debenture then Outstanding and affected thereby. The Indenture also
contains provisions permitting the Holders of a majority in aggregate principal
amount of the Subordinated Debentures at the time Outstanding, on behalf of all
of the Holders of the Subordinated Debentures, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture, and its consequences, except a default in the payment
of the principal of or interest on any of the Subordinated Debentures. Any such
consent or waiver by the registered Holder of this Subordinated Debenture
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this Subordinated
Debenture and of any Subordinated Debenture issued in exchange herefor or in
place hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this
Subordinated Debenture.
No reference herein to the Indenture and no provision of this Subordinated
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Subordinated Debenture at the time and place and at the rate
and in the money herein prescribed.
The Company shall have the right at any time during the term of the
Subordinated Debentures and from time to time to extend the interest payment
period of such Subordinated Debentures for up to 20 consecutive quarters (an
"Extended Interest Payment Period"), at the end of which period the Company
shall pay all interest then accrued and unpaid (together with interest thereon
at the rate specified for the Subordinated Debentures to the extent that payment
of such interest is enforceable under applicable law). Before the termination of
any such Extended Interest Payment Period, the Company may further extend such
Extended Interest Payment Period, provided that such Extended Interest Payment
Period together with all such further extensions thereof shall not exceed 20
consecutive quarters or extend beyond the Stated Maturity. At the termination of
any such Extended Interest Payment Period and upon the payment of all accrued
and unpaid interest and any additional amounts then due, the Company may
commence a new Extended Interest Payment Period.
The Company has agreed that if at any time (a) there shall have occurred
any event of which the Company has actual knowledge that (i) with the giving of
notice or the lapse of time,
A-6
or both, would constitute an Event of Default and (ii) in respect to which the
Company shall not have taken reasonable steps to cure, or (b) the Company shall
have given notice of its election of an Extended Interest Payment Period as
provided herein and shall not have rescinded such notice, or such Extended
Interest Payment Period, or any extension thereof, shall be continuing; or (c)
while the Subordinated Debentures are held by the Trust, the Company shall be in
default with respect to its payment of any obligation under the Preferred
Securities Guarantee, then the Company will not (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 capital stock or (ii) make any payment of
principal, interest or premium, if any, on or repay, repurchase or redeem any
debt securities of the Company (including the Subordinated Debentures) that rank
pari passu with or junior in interest to the Subordinated Debentures or make any
guarantee payments with respect to any guarantee by the Company of the debt
securities of any subsidiary of the Company if such guarantee ranks pari passu
or junior in interest to the Subordinated Debentures (other than (A) dividends
or distributions in common stock, (B) any declaration of a dividend in
connection with the implementation of a shareholders' rights plan, or the
issuance of stock under any such plan in the future or the redemption or
repurchase of any such rights pursuant thereto, (C) payments under the Preferred
Securities Guarantee and (D) purchases of common stock related to the issuance
of common stock or rights under any of the Company's benefit plans for its
directors, officers or employees).
As provided in the Indenture and subject to certain limitations therein set
forth, this Subordinated Debenture is transferable by the registered Holder
hereof on the Securities Register of the Company, upon surrender of this
Subordinated Debenture for registration of transfer at the office or agency of
the Trustee accompanied by a written instrument or instruments of transfer in
form satisfactory to the Company or the Trustee duly executed by the registered
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Subordinated Debentures of authorized denominations
and for the same aggregate principal amount will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Subordinated
Debenture, the Company, the Trustee, any paying agent and the Securities
Registrar (as defined in the Indenture) may deem and treat the Registered Holder
hereof as the absolute owner hereof (whether or not this Subordinated Debenture
shall be overdue and notwithstanding any notice of ownership or writing hereon
made by anyone other than the Securities Registrar) for the purpose of receiving
payment of or on account of the principal hereof and interest due hereon and for
all other purposes, and neither the Company nor the Trustee nor any paying agent
nor any Securities Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Subordinated Debenture, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture, against
any incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
A-7
The Subordinated Debentures are issuable only in registered form without
coupons in denominations of $_____ and any integral multiple thereof. [This
Global Subordinated Debenture is exchangeable for Subordinated Debentures in
definitive form only under certain limited circumstances set forth in the
Indenture. Subordinated Debentures so issued are issuable only in registered
form without coupons in denominations of $_____ and any integral multiple
thereof.]
All terms used in this Subordinated Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
A-8