UNITED COMMUNITY BANCSHARES, INC.
AND
WILMINGTON TRUST COMPANY,
AS TRUSTEE
SUBORDINATED INDENTURE
____% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
DATED AS OF JANUARY ___, 1997.
TABLE OF CONTENTS
PAGE NO.
ARTICLE ONE: DEFINITIONS.................................................... 1
SECTION 1.1. DEFINITIONS OF TERMS...................................... 1
ARTICLE TWO: DESCRIPTION, TERMS, CONDITIONS
REGISTRATION AND EXCHANGE OF THE JUNIOR SUBORDINATED
DEBENTURES................................................................. 9
SECTION 2.1. DESIGNATION AND PRINCIPAL AMOUNT.......................... 9
SECTION 2.2. MATURITY.................................................. 9
SECTION 2.3. FORM AND PAYMENT.......................................... 11
SECTION 2.4. GLOBAL SUBORDINATED DEBENTURE............................. 11
SECTION 2.5. INTEREST.................................................. 13
SECTION 2.6. EXECUTION, AUTHENTICATION, DELIVERY AND DATING............ 14
SECTION 2.7. REGISTRATION AND TRANSFER................................. 14
SECTION 2.8. MUTILATED, DESTROYED, LOST AND STOLEN
JUNIOR SUBORDINATED DEBENTURES......................................... 15
ARTICLE THREE: REDEMPTION OF JUNIOR SUBORDINATED DEBENTURES................. 16
SECTION 3.1. REDEMPTION................................................ 16
SECTION 3.2. SPECIAL EVENT REDEMPTION.................................. 16
SECTION 3.3. OPTIONAL REDEMPTION BY COMPANY............................ 17
SECTION 3.4. NOTICE OF REDEMPTION...................................... 17
SECTION 3.5. PAYMENT UPON REDEMPTION................................... 19
SECTION 3.6. NO SINKING FUND........................................... 19
ARTICLE FOUR: EXTENSION OF INTEREST PAYMENT PERIOD.......................... 20
SECTION 4.1. EXTENSION OF INTEREST PAYMENT PERIOD...................... 20
SECTION 4.2. NOTICE OF EXTENSION....................................... 20
SECTION 4.3. LIMITATION OF TRANSACTIONS DURING EXTENSION............... 21
ARTICLE FIVE: PARTICULAR COVENANTS OF THE COMPANY........................... 21
SECTION 5.1. PAYMENT OF PRINCIPAL AND INTEREST......................... 21
SECTION 5.2. MAINTENANCE OF AGENCY..................................... 21
SECTION 5.3. PAYING AGENTS............................................. 22
SECTION 5.4. APPOINTMENT TO FILL VACANCY IN OFFICE OF TRUSTEE.......... 23
SECTION 5.5. COMPLIANCE WITH CONSOLIDATION PROVISIONS.................. 23
SECTION 5.6. RESTRICTIONS ON CERTAIN PAYMENTS.......................... 23
SECTION 5.7. COVENANTS AS TO THE TRUST................................. 24
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ARTICLE SIX: SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE............................................. 24
SECTION 6.1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
SECURITYHOLDERS.................................................... 24
SECTION 6.2. PRESERVATION OF INFORMATION; COMMUNICATIONS WITH
SECURITYHOLDERS.................................................... 25
SECTION 6.3. REPORTS BY THE COMPANY.................................... 25
SECTION 6.4. REPORTS BY THE TRUSTEE.................................... 26
ARTICLE SEVEN: REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT........................................................ 26
SECTION 7.1. EVENTS OF DEFAULT......................................... 26
SECTION 7.2. COLLECTION OF INDEBTEDNESS AND SUITS FORENFORCEMENT
BY TRUSTEE......................................................... 28
SECTION 7.3. APPLICATION OF MONEYS COLLECTED........................... 30
SECTION 7.4. LIMITATION ON SUITS....................................... 30
SECTION 7.5. RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION
NOT WAIVER......................................................... 31
SECTION 7.6. CONTROL BY SECURITYHOLDERS................................ 32
SECTION 7.7. UNDERTAKING TO PAY COSTS.................................. 32
ARTICLE EIGHT: FORM OF JUNIOR SUBORDINATED DEBENTURE AND
ORIGINAL ISSUE............................................................. 33
SECTION 8.1. FORM OF JUNIOR SUBORDINATED DEBENTURE..................... 33
SECTION 8.2. ORIGINAL ISSUE OF JUNIOR SUBORDINATED DEBENTURES.......... 33
ARTICLE NINE: CONCERNING THE TRUSTEE........................................ 33
SECTION 9.1. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE........ 33
SECTION 9.2. CERTAIN RIGHTS OF TRUSTEE................................. 35
SECTION 9.3. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OR
THE JUNIOR SUBORDINATED DEBENTURES................................. 36
SECTION 9.4. MAY HOLD JUNIOR SUBORDINATED DEBENTURES................... 36
SECTION 9.5. MONEYS HELD IN TRUST...................................... 36
SECTION 9.6. COMPENSATION AND REIMBURSEMENT............................ 37
SECTION 9.7. RELIANCE ON OFFICERS' CERTIFICATE......................... 37
SECTION 9.8. DISQUALIFICATION; CONFLICTING INTERESTS.................. 38
SECTION 9.9. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY................... 38
SECTION 9.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR........ 38
SECTION 9.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR................... 39
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SECTION 9.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS........................................................ 40
SECTION 9.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE
COMPANY............................................................ 41
SECTION 9.14. APPOINTMENT OF AUTHENTICATING AGENT...................... 41
ARTICLE TEN: CONCERNING THE SECURITYHOLDERS................................. 42
SECTION 10.1. EVIDENCE OF ACTION BY SECURITYHOLDERS.................... 42
SECTION 10.2. PROOF OF EXECUTION BY SECURITYHOLDERS.................... 43
SECTION 10.3. WHO MAY BE DEEMED OWNERS................................. 43
SECTION 10.4. CERTAIN JUNIOR SUBORDINATED DEBENTURES OWNED BY
COMPANY DISREGARDED................................................ 44
SECTION 10.5. ACTIONS BINDING ON FUTURE SECURITYHOLDERS................ 44
ARTICLE ELEVEN: SUPPLEMENTAL INDENTURES..................................... 45
SECTION 11.1. SUPPLEMENTAL INDENTURES WITHOUT THE CONSENT OF
SECURITYHOLDERS.................................................... 45
SECTION 11.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS.................................................... 46
SECTION 11.3. EFFECT OF SUPPLEMENTAL INDENTURES........................ 46
SECTION 11.4. JUNIOR SUBORDINATED DEBENTURES AFFECTED BY
SUPPLEMENTAL INDENTURES............................................ 46
SECTION 11.5. EXECUTION OF SUPPLEMENTAL INDENTURES..................... 47
ARTICLE TWELVE: SUCCESSOR CORPORATION....................................... 47
SECTION 12.1. COMPANY MAY CONSOLIDATE, ETC............................. 47
SECTION 12.2. SUCCESSOR SUBSTITUTED.................................... 48
SECTION 12.3. EVIDENCE OF CONSOLIDATION, ETC., TO TRUSTEE.............. 48
ARTICLE THIRTEEN: SATISFACTION AND DISCHARGE................................ 48
SECTION 13.1. SATISFACTION AND DISCHARGE OF INDENTURE.................. 48
SECTION 13.2. DISCHARGE OF OBLIGATIONS................................. 49
SECTION 13.3. DEPOSITED MONEYS TO BE HELD IN TRUST..................... 49
SECTION 13.4. PAYMENT OF MONIES HELD BY PAYING AGENTS.................. 49
SECTION 13.5. REPAYMENT TO COMPANY..................................... 50
ARTICLE FOURTEEN: IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS........................................................... 50
SECTION 14.1. NO RECOURSE.............................................. 50
ARTICLE FIFTEEN: MISCELLANEOUS PROVISIONS................................... 51
SECTION 15.1. EFFECT ON SUCCESSORS AND ASSIGNS......................... 51
SECTION 15.2. ACTIONS BY SUCCESSOR..................................... 51
SECTION 15.3. SURRENDER OF COMPANY POWERS.............................. 51
iii
SECTION 15.4. NOTICES.................................................. 51
SECTION 15.5. GOVERNING LAW............................................ 51
SECTION 15.6. TREATMENT OF JUNIOR SUBORDINATED DEBENTURES
AS DEBT............................................................ 52
SECTION 15.7. COMPLIANCE CERTIFICATES AND OPINIONS..................... 52
SECTION 15.8. PAYMENTS ON BUSINESS DAYS................................ 52
SECTION 15.9. CONFLICT WITH TRUST INDENTURE ACT........................ 52
SECTION 15.10. COUNTERPARTS............................................ 53
SECTION 15.11. SEPARABILITY............................................ 53
SECTION 15.12. ASSIGNMENT.............................................. 53
SECTION 15.13. ACKNOWLEDGMENT OF RIGHTS................................ 53
ARTICLE SIXTEEN: SUBORDINATION OF JUNIOR SUBORDINATED DEBENTURES............ 54
SECTION 16.1. AGREEMENT TO SUBORDINATE................................. 54
SECTION 16.2. DEFAULT ON SENIOR INDEBTEDNESS........................... 54
SECTION 16.3. LIQUIDATION; DISSOLUTION; BANKRUPTCY..................... 55
SECTION 16.4. SUBROGATION.............................................. 56
SECTION 16.5. TRUSTEE TO EFFECTUATE SUBORDINATION...................... 57
SECTION 16.6. NOTICE BY THE COMPANY.................................... 57
SECTION 16.7. RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR
INDEBTEDNESS....................................................... 58
SECTION 16.8. SUBORDINATION MAY NOT BE IMPAIRED........................ 58
iv
SUBORDINATED INDENTURE (the "Indenture), dated as of January ___, 1997,
among United Community Bancshares, Inc., a Minnesota corporation (the "Company")
and Wilmington Trust Company, a Delaware banking corporation, 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 _____ % Junior Subordinated Deferrable Interest
Debentures due 2027 (hereinafter referred to as the "Junior Subordinated
Debentures"), the form and substance of such Junior Subordinated Debentures and
the terms, provisions and conditions thereof to be set forth as provided in this
Indenture; and
WHEREAS, United Capital Trust, a Delaware statutory business trust (the
"Trust"), has offered to the public $11,000,000 aggregate liquidation amount of
its ___% Cumulative Trust Preferred Securities (the "Preferred Securities"),
representing 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 $___ million aggregate
liquidation amount of its ___% Trust Common Securities, in $____ million
aggregate principal amount of the Junior Subordinated Debentures; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this Indenture, and all requirements necessary to make this Indenture a valid
instrument in accordance with its terms, and to make the Junior Subordinated
Debentures, when executed by the Company and authenticated and delivered by the
Trustee, the valid obligations of the Company, have been performed, and the
execution and delivery of this Indenture has been duly authorized in all
respects; and
WHEREAS, to provide the terms and conditions upon which the Junior
Subordinated Debentures are to be authenticated, issued and delivered, the
Company has duly authorized the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of the
Junior Subordinated Debentures by the holders thereof, it is mutually covenanted
and agreed as follows for the equal and ratable benefit of the holders of Junior
Subordinated Debentures:
ARTICLE ONE
DEFINITIONS
SECTION 1.1. DEFINITIONS OF TERMS
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
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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.
"Accelerated Maturity Date" means, if the Company elects to accelerate the
Maturity Date in accordance with Section 2.2(c), the date selected by the
Company which is prior to the Scheduled Maturity Date, but is after January 14,
2002.
"Administrative Trustees" has the meaning set forth in the Trust Agreement.
"Additional Sums" shall have the meaning set forth in Section 2.5.
"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
Junior Subordinated Debentures appointed by the Trustee pursuant to Section
9.14.
"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 Minnesota are authorized or obligated by
law, executive order or regulation to close or a day on which the Trustee is
closed.
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"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
15.7.
"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 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 United Community Bancshares, Inc., a corporation duly
organized and existing under the laws of the State of Minnesota, and, subject to
the provisions of Article Twelve, shall also include its successors and assigns.
"Compounded Interest" shall have the meaning set forth in Section 4.1.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at Xxxxxx Square North, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust
Administration.
"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, (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; and (vi) every
obligation of the type referred to in clauses (i) through (v) of another Person
and all dividends of another Person the payment of which, in either case, such
Person has guaranteed or is responsible or liable, directly or indirectly, as
obligor or otherwise.
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"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 4.1.
"Depositary" means, with respect to Junior 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 Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
other applicable statute or regulation, which, in each case, shall be designated
by the Company pursuant to either Section 2.1 or 2.4.
"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" means any event specified in Section 7.1, continued for
the period of time, if any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 4.1.
"Extended Maturity Date" means if the Company elects to extend the Maturity
Date in accordance with Section 2.2(b), the date selected by the Company which
is after the Scheduled Maturity Date but before January 15, 2046.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Global Subordinated Debentures" means a Junior Subordinated Debenture
executed by the Company and delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction, all in accordance with this Indenture,
which shall be registered in the name of the Depositary or its nominee.
"Governmental Obligations" means securities that are (i) direct obligations
of the United States of America for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America that, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as
4
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.
"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 Junior Subordinated Debentures, means the date specified in the
Junior Subordinated Debenture as the fixed date on which an installment of
interest with respect to the Junior 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"), 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.
"Junior Subordinated Debentures" means the ___% Junior Subordinated
Deferrable Interest Debentures authenticated and delivered under this Indenture.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Maturity Date" means the date on which the Junior Subordinated Debentures
mature and on which the principal shall be due and payable together with all
accrued and unpaid interest thereon including Compounded Interest and Additional
Sums, if any.
"Non Book-Entry Preferred Securities" shall have the meaning set forth in
Section 2.4.
5
"Officers' Certificate" means a certificate signed by the President or a
Vice President and by the Chief Financial 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 15.7, 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 15.7, if and to the extent required by the
provisions thereof.
"Outstanding," when used with reference to Junior Subordinated Debentures
means, subject to the provisions of Section 10.4, as of any particular time, all
Junior Subordinated Debentures theretofore authenticated and delivered by the
Trustee under this Indenture, except (a) Junior Subordinated Debentures
theretofore cancelled by the Trustee or any paying agent, or delivered to the
Trustee or any paying agent for cancellation or that have previously been
cancelled; (b) Junior 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 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 Junior Subordinated Debentures or
portions of such Junior Subordinated Debentures are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as in Article
Three provided, or provision satisfactory to the Trustee shall have been made
for giving such notice; and (c) Junior Subordinated Debentures in lieu of or in
substitution for which other Junior Subordinated Debentures shall have been
authenticated and delivered pursuant to the terms of Section 2.8.
"Person" means any individual, corporation, partnership, joint venture,
joint-stock company, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" means every previous Junior Subordinated Debenture
evidencing all or a portion of the same debt and as that evidenced by such
particular Junior Subordinated Debenture; and, for the purposes of this
definition, any Junior Subordinated Debenture authenticated and delivered under
Section 2.8 in lieu of a lost, destroyed or stolen Junior Subordinated Debenture
shall be deemed to evidence the same debt as the lost, destroyed or stolen
Junior Subordinated Debenture.
"Preferred Securities" means 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.
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"Preferred Securities Certificate" has the meaning set forth in the Trust
Agreement.
"Preferred Securities Guaranty" means any guaranty that the Company may
enter into with Wilmington Trust Company 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 Junior Subordinated Debentures to be redeemed plus any accrued and unpaid
interest thereon to the date of the redemption of such Junior Subordinated
Debentures.
"Responsible Officer" when used with respect to the Trustee means the
Chairman of the Board of Directors, the President, any Vice President, the
Secretary, the Treasurer, any trust officer, any corporate trust officer or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Scheduled Maturity Date" means January 15, 2027.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 2.7.
"Securityholder," "Holder," "Holder of Securities," "Registered Holder," or
other similar term, means the Person or Persons in whose name or names a
particular Junior Subordinated Debenture shall be registered in the Securities
Register.
"Senior Debt" means the principal of (and premium, if any) and interest, if
any (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding), on Debt,
whether incurred on or prior to the date of this Indenture or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Junior Subordinated Debentures or to other
Debt which is pari passu with, or subordinated to, the Junior Subordinated
Debentures; provided, however, that Senior Debt shall not be deemed to include
(i) any Debt of the Company which when incurred and without respect to any
election under section 1111(b) of the United States Bankruptcy Code of 1978, as
amended, was without recourse to the Company, (ii) any Debt of the Company to
any of its subsidiaries, (iii) any Debt to any employee of the Company, (iv) any
Debt which by its terms is subordinated to trade accounts payable or accrued
liabilities arising in the ordinary course of business to the extent that
payments made to the holders of such Debt by the holders of the Junior
Subordinated Debentures as a result of the subordination provisions of this
Indenture would be greater than they otherwise would have
7
been as a result of any obligation of such holders to pay amounts over to the
obligees on such trade accounts payable or accrued liabilities arising in the
ordinary course of business as a result of subordination provisions to which
such Debt is subject, (v) any Debt which constitutes Subordinated Debt, and (vi)
any other debt securities issued pursuant to this Indenture.
"Senior Indebtedness" means Senior Debt and/or Subordinated Debt.
"Special Event" means a Tax Event or an Investment Company Event.
"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, whether incurred on or prior to the date of this Indenture or thereafter
incurred, which is by its terms expressly provided to be junior and subordinate
to other Debt of the Company (other than the Junior Subordinated Debentures).
"Subsidiary" means, with respect to any Person, (i) any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person, or by one or more of its Subsidiaries,
or by such Person and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority of whose
outstanding partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person and one or more
of its Subsidiaries and (iii) any limited partnership of which such Person or
any of its Subsidiaries is a general partner.
"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 Junior Subordinated Debentures there is more than an insubstantial risk that
(i) interest payable by the Company on the Junior 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; (ii) 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 Junior Subordinated Debentures, or
(iii) 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.
8
"Trust" means United Capital Trust, a Delaware business trust created for
the purpose of issuing Preferred Securities and Common Securities in connection
with the issuance of Junior Subordinated Debentures under this Indenture.
"Trust Agreement" means the Amended and Restated Trust Agreement, dated as
of January __, 1997, of the Trust.
"Trustee" means Wilmington Trust Company and, subject to the provisions of
Article Nine, 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 TWO
DESCRIPTION, TERMS, CONDITIONS
REGISTRATION AND EXCHANGE OF THE JUNIOR SUBORDINATED DEBENTURES
SECTION 2.1. DESIGNATION AND PRINCIPAL AMOUNT
There is hereby authorized a series of Securities designated the "___%
Junior Subordinated Deferrable Interest Debentures due 2027", limited in
aggregate principal amount to $11,340,200, which amount shall be as set forth in
any written order of the Company for the authentication and delivery of Junior
Subordinated Debentures pursuant to Section 8.2 of this Indenture.
SECTION 2.2. MATURITY
(a) The Maturity Date will be either:
(i) the Scheduled Maturity Date; or
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(ii) if the Company elects to extend the Maturity Date beyond the
Scheduled Maturity Date in accordance with Section 2.2(b), the
Extended Maturity Date; or
(iii) if the Company elects to accelerate the Maturity Date
to be a date prior to the Scheduled Maturity Date in accordance with
Section 2.2(c), the Accelerated Maturity Date.
(b) The Company may, at any time before the day which is 90 days
before the Scheduled Maturity Date, elect to extend the Maturity Date only
once to the Extended Maturity Date provided that the Company has received
the prior approval of the Federal Reserve if then required under applicable
capital guidelines or policies of the Federal Reserve and further provided
that the following conditions in this Section 2.2(b) are satisfied both at
the date the Company gives notice in accordance with Section 2.2(d) of its
election to extend the Maturity Date and at the Scheduled Maturity Date:
(i) the Company is not in bankruptcy, otherwise insolvent or
in liquidation;
(ii) the Company is not in default on any Junior Subordinated
Debentures issued to the Trust or any trustee of the Trust in
connection with the issuance of Trust Securities by the Trust; and
(iii) the Trust is not in arrears on payments of Distributions
on the Trust Securities issued by it and no deferred Distributions are
accumulated.
(c) 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 Federal Reserve if then required under
applicable capital guidelines or policies of the Federal Reserve.
(d) If the Company elects to extend the Maturity Date in accordance
with Section 2.2(b), the Company shall give notice to registered holders of
the Junior Subordinated Debentures, the Property Trustee and the Trust of
the extension of the Maturity Date and the Extended Maturity Date at least
90 days before the Scheduled Maturity Date.
(e) If the Company elects to accelerate the Maturity Date in
accordance with Section 2.2(c), the Company shall give notice to registered
holders of the Junior Subordinated Debentures, the Property Trustee and the
Trust of the acceleration of the Maturity Date and the Accelerated Maturity
Date at least 90 days before the Accelerated Maturity Date.
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SECTION 2.3. FORM AND PAYMENT
Except as provided in Section 2.4, the Junior Subordinated Debentures shall
be issued in fully registered certificated form without interest coupons.
Principal and interest on the Junior Subordinated Debentures issued in
certificated form will be payable, the transfer of such Junior Subordinated
Debentures will be registrable and such Junior Subordinated Debentures will be
exchangeable for Junior 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 Junior Subordinated
Debentures is the Property Trustee, the payment of the principal of and interest
(including Compounded Interest and Additional Sums, if any) on such Junior
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 2.4. GLOBAL SUBORDINATED DEBENTURE
(a) In connection with a Dissolution Event,
(i) the Junior Subordinated Debentures in certificated form
may be presented to the Trustee by the Property Trustee in exchange
for a global Junior Subordinated Debenture in an aggregate principal
amount equal to the aggregate principal amount of all outstanding
Junior 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 Junior
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 Junior 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 deemed to represent
beneficial interests in Junior 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
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cancelled and a Junior 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
cancelled, will be executed by the Company and delivered to the
Trustee for authentication and delivery in accordance with this
Indenture. On issue of such Junior Subordinated Debentures, Junior
Subordinated Debentures with an equivalent aggregate principal amount
that were presented by the Property Trustee to the Trustee will be
deemed to have been cancelled.
(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 at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or if 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, the Company will execute, and the
Trustee, upon written notice from the Company, will authenticate and
deliver the Junior 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 exchange for such Global Junior Subordinated Debenture. In addition,
the Company may at any time determine that the Junior 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 the Junior 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 exchange for such Global Subordinated
Debenture. Upon the exchange of the Global Subordinated Debenture for such
Junior Subordinated Debentures in definitive registered form without
coupons, in authorized denominations, the Global Subordinated Debenture
shall be cancelled by the Trustee. Such Junior 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 Junior Subordinated Debentures to the Depositary
for delivery to the Persons in whose names such Junior Subordinated
Debentures are so registered.
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SECTION 2.5. INTEREST
(a) Each Junior 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
Four) quarterly in arrears on the last day of March, June, September and
December in each year (each, an "Interest Payment Date"), commencing on
March 31, 1997, to the Person in whose name such Junior Subordinated
Debenture or any predecessor Junior Subordinated Debenture is registered,
at the close of business on the regular record date for such interest
installment, which, in respect of (i) Junior 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 (i) the Junior
Subordinated Debentures are held by the Property Trustee and the Preferred
Securities are no longer in book-entry only form or (ii) the Junior
Subordinated Debentures are not represented by a Global Subordinated
Debenture, the record date for such interest installment which shall be the
15th day of the month in which such payment is to be made.
(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 30-day
period. In the event that any date on which interest is payable on the
Junior 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
Junior 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 Junior Subordinated
Debentures held by the Property Trustee such additional amounts as shall be
required so 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
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received had no such taxes, duties, assessments or other government charges
been imposed.
SECTION 2.6. EXECUTION, AUTHENTICATION, DELIVERY AND DATING
The Junior Subordinated Debentures shall be executed on behalf of the
Company by 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.
Junior 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
Junior Subordinated Debentures or did not hold such offices at the date of such
Junior Subordinated Debentures.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Junior Subordinated Debentures executed by
the Company to the Trustee for authentication, together with a Company order for
the authentication and delivery of such Junior Subordinated Debentures. The
Trustee in accordance with such Company order shall authenticate and deliver
such Junior Subordinated Debentures as in this Indenture provided and not
otherwise.
Upon the initial issuance, each Junior Subordinated Debentures shall be
dated January 16, 1997, and thereafter Junior Subordinated Debentures issued
hereunder shall be dated the date of their authentication.
No Junior Subordinated Debenture shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Junior 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 Junior Subordinated Debenture shall be conclusive
evidence, and the only evidence, that such Junior Subordinated Debenture has
been duly authenticated and delivered hereunder and is entitled to the benefits
of this Indenture.
SECTION 2.7. 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 5.2 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 Junior
Subordinated Debentures and of transfers of the Junior Subordinated Debentures.
The Trustee is hereby appointed "Securities Registrar" for the purpose of
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registering the Junior Subordinated Debentures and transfers of the Junior
Subordinated Debentures as herein provided.
Upon surrender for registration of transfer of any Junior Subordinated
Debenture at an office or agency of the Company designated pursuant to Section
5.2 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 Junior Subordinated Debenture of the authorized denomination.
All Junior Subordinated Debentures issued upon any registration of transfer
of Junior Subordinated Debentures shall be valid obligations of the Company,
evidencing the same debt and entitled to the same benefits under this Indenture
as the Junior Subordinated Debentures surrendered upon such registration of
transfer.
Every Junior 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 Xxxxxx's attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer of Junior
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 Junior Subordinated Debentures.
The Company shall not be required to issue or register the transfer of any
Junior 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
Junior Subordinated Debentures selected for redemption pursuant to Article Three
and ending at the close of business on the day of such mailing.
SECTION 2.8 MUTILATED, DESTROYED, LOST AND STOLEN JUNIOR
SUBORDINATED DEBENTURES
If any mutilated Junior Subordinated Xxxxxxxxx is surrendered to the
Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Junior 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 (i) evidence to
their satisfaction of the destruction, loss or theft of any Junior Subordinated
Debenture and (ii) 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 Junior Subordinated Debenture has been acquired by a bona fide
purchaser, the Company shall execute and upon
15
its request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Junior Subordinated Xxxxxxxxx, a new Junior
Subordinated Debenture of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Junior Subordinated
Debenture has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Junior Subordinated Debenture, pay such
Junior Subordinated Debenture.
Upon the issuance of any new Junior 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 Junior Subordinated Debenture issued pursuant to this Section in
lieu of any destroyed, lost or stolen Junior Subordinated Debenture shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Junior Subordinated 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 Junior Subordinated Debentures.
ARTICLE THREE
REDEMPTION OF JUNIOR SUBORDINATED DEBENTURES
SECTION 3.1. REDEMPTION
Subject to the Company having received prior approval of the Federal
Reserve, if then required under the applicable capital guidelines or policies of
the Federal Reserve, the Company may redeem the Junior Subordinated Debentures
in accordance with this Article Three.
SECTION 3.2. SPECIAL EVENT REDEMPTION
Subject to the Company having received the prior approval of the Federal
Reserve, if then required under the applicable capital guidelines or policies of
the Federal Reserve, if a Special Event has occurred and is continuing, then,
notwithstanding Section 3.3, the Company shall have the right upon not less than
30 days nor more than 60 days notice to the Holders of the Junior Subordinated
Debentures to redeem the Junior 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
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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 Junior Subordinated
Debentures while the Trust is pursuing any Ministerial Action pursuant to its
obligations under the Trust Agreement. The Redemption Price shall be paid prior
to 2:00 p.m., Minneapolis 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 12:00 noon,
Minneapolis time, on the date such Redemption Price is to be paid.
SECTION 3.3. OPTIONAL REDEMPTION BY COMPANY
(a) Except as otherwise may be specified in this Indenture, the
Company shall have the right to redeem the Junior Subordinated Debentures,
in whole or in part, from time to time, on or after January 15, 2002, at
the Redemption Price. Any redemption pursuant to this Section 3.3 will be
made upon not less than 30 days nor more than 60 days notice to the Holder
of the Junior Subordinated Debentures, at the Redemption Price. If the
Junior Subordinated Debentures are only partially redeemed pursuant to this
Section 3.3, the Junior 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 Junior Subordinated Debentures are registered
as a Global Subordinated Debenture, the Depositary shall determine, in
accordance with its procedures, the principal amount of such Junior
Subordinated Debentures held by each Holder of Junior Subordinated
Debentures to be redeemed. The Redemption Price shall be paid prior to
2:00 p.m., Minneapolis 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 12:00 noon, Minneapolis time, on the date such Redemption Price is to be
paid.
(b) If a partial redemption of the Junior 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 Junior Subordinated Debentures in whole.
SECTION 3.4. NOTICE OF REDEMPTION
(a) In case the Company shall desire to exercise such right to redeem
all or, as the case may be, a portion of the Junior Subordinated Debentures
in accordance
17
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 Junior
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 Junior 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 Junior
Subordinated Debentures. In the case of any redemption of Junior
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 Junior Subordinated Debentures to be redeemed will
be made at the office or agency of the Company in Minneapolis, Minnesota,
upon presentation and surrender of such Junior 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 Junior Subordinated Debentures are to be
redeemed, the notice to the Holders of Junior Subordinated Debentures to be
redeemed in whole or in part shall specify the particular Junior
Subordinated Debentures to be so redeemed. In case any Junior Subordinated
Debenture is to be redeemed in part only, the notice that relates to such
Junior 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 Junior Subordinated Debenture, a
new Junior Subordinated Debenture or Junior Subordinated Debentures in
principal amount equal to the unredeemed portion thereof shall be issued to
the Holder.
(b) If less than all the Junior 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 Junior 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 U.S. dollars ($25)
or any integral multiple thereof), the Junior Subordinated Debentures to be
redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Junior 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 President or any Vice President,
instruct the
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Trustee or any paying agent to call all or any part of the Junior
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 3.5. PAYMENT UPON REDEMPTION
(a) If the giving of notice of redemption shall have been completed
as above provided, the Junior Subordinated Debentures or portions of Junior
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 Junior Subordinated Debentures or
portions of Junior 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 Junior
Subordinated Debenture or portion thereof. On presentation and surrender
of such Junior Subordinated Debentures on or after the date fixed for
redemption at the place of payment specified in the notice, such Junior
Subordinated Debentures shall be paid and redeemed at the Redemption Price
(which includes the interest accrued thereon 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 2.5(a)).
(b) Upon presentation of any Junior 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 Junior Subordinated
Debenture is presented shall deliver to the Holder thereof, at the expense
of the Company, a new Junior Subordinated Debenture or Junior Subordinated
Debentures of authorized denominations in principal amount equal to the
unredeemed portion of the Junior Subordinated Debenture so presented.
SECTION 3.6. NO SINKING FUND
The Junior Subordinated Debentures are not entitled to the benefit of any
sinking fund.
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ARTICLE FOUR
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. EXTENSION OF INTEREST PAYMENT PERIOD
The Company shall have the right, at any time and from time to time during
the term of the Junior Subordinated Debentures, to defer payments of interest by
extending the interest payment period of such Junior Subordinated Debentures for
a period not exceeding 20 consecutive quarters (the "Extended Interest Payment
Period"), during which Extended Interest Payment Period no interest shall be due
and payable; provided that no 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 4.1, will bear interest thereon at the
Coupon Rate compounded quarterly for each quarter of the Extended Interest
Payment Period ("Compounded Interest"). At the end of the Extended Interest
Payment Period, the Company shall pay all interest accrued and unpaid on the
Junior Subordinated Debentures, including any Additional Sums and Compounded
Interest (together, "Deferred Interest") that shall be payable to the Holders of
the Junior Subordinated Debentures in whose names the Subordinated Debentures
are registered in the Securities Register on the first record date after 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 4.2. NOTICE OF EXTENSION
(a) If the Property Trustee is the only registered Holder of the
Junior Subordinated Debentures at the time the Company selects an Extended
Interest Payment Period, the 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 Junior
Subordinated Debentures at the time the Company selects an Extended
Interest
20
Payment Period, the Company shall give the Holders of the Junior
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 Junior 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 4.2 shall be counted as one of the 20
quarters permitted in the maximum Extended Interest Payment Period
permitted under Section 4.1.
SECTION 4.3. LIMITATION OF TRANSACTIONS DURING EXTENSION
If (i) the Company shall exercise its right to defer payment of interest as
provided in Section 4.1, or (ii) there shall have occurred any Event of Default,
then the Company may not (1) 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 (2) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Company that rank pari passu with or junior in interest to the Junior
Subordinated Debentures or make any guaranty payments with respect to any
guaranty by the Company of the debt securities of any subsidiary of the Company
if such guaranty ranks pari passu with or junior in interest to the Junior
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 Guaranty and (d) purchases of common
stock under any of the Company's benefit plans for its director, officers or
employees).
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.1. PAYMENT OF PRINCIPAL AND INTEREST
The Company will duly and punctually pay or cause to be paid the principal
of and interest on the Junior Subordinated Debentures at the time and place and
in the manner provided herein and established with respect to such Junior
Subordinated Debentures.
SECTION 5.2. MAINTENANCE OF AGENCY
So long as any Junior Subordinated Debentures remain Outstanding, the
Company agrees to maintain an office or agency in Minneapolis, Minnesota or at
such other location or
21
locations as may be designated as provided in this Section 5.2, where (i) Junior
Subordinated Debentures may be presented for payment, (ii) Junior Subordinated
Debentures may be presented as hereinabove authorized for registration of
transfer and exchange, and (iii) notices and demands to or upon the Company in
respect of the Junior 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 President or a Vice President
and delivered to the Trustee, designate some other office or agency for such
purposes or any of them. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, notices and demands may be made or served
at the Corporate Trust Office of the Trustee, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, notices and demands.
SECTION 5.3. PAYING AGENTS
(a) If the Company shall appoint one or more paying agents for the
Junior 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 Junior 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 Junior 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 Junior Subordinated Debentures, it will on or before each due date of
the principal of or interest on Junior 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
22
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 Junior
Subordinated Debentures, it will, prior to each due date of the principal
of or interest on the Junior 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 13.5, and (ii) the Company may at any time, for
the purpose of obtaining the satisfaction and discharge of this Indenture
or for any other purpose, pay, or direct any paying agent to pay, to the
Trustee all sums held in trust by the Company or such paying agent, such
sums to be held by the Trustee upon the same terms and conditions as those
upon which such sums were held by the Company or such paying agent; and,
upon such payment by any paying agent to the Trustee, such paying agent
shall be released from all further liability with respect to such money.
SECTION 5.4. APPOINTMENT TO FILL VACANCY IN OFFICE OF TRUSTEE
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 9.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 5.5. COMPLIANCE WITH CONSOLIDATION PROVISIONS
The Company will not, while any of the Junior 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 Twelve hereof are complied with.
SECTION 5.6. RESTRICTIONS ON CERTAIN PAYMENTS
If at any time (i) there shall have occurred any event of which the Company
has actual knowledge that (a) with the giving of notice or the lapse of time, or
both, would constitute an Event of Default and (b) in respect to which the
Company shall not have taken reasonable steps to cure, or (ii) the Company shall
have given notice of its election of an Extended Interest Payment Period as
provided herein with respect to the Junior Subordinated Debentures and shall not
have rescinded such notice, or such Extended Interest Payment Period, or any
extension thereof, shall be continuing; or (iii) while the Junior 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 Guaranty, then
the Company will not (1) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or
23
make a liquidation payment with respect to, any of the Company's capital stock
or (2) make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company (including the Junior
Subordinated Debentures) that rank pari passu with or junior in interest to the
Junior Subordinated Debentures or make any guaranty payments with respect to any
guaranty by the Company of the debt securities of any subsidiary of the Company
if such guaranty ranks pari passu or junior in interest to the Junior
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 Guaranty and (d) purchases of common
stock related to rights under any of the Company's benefit plans for its
directors, officers or employees).
SECTION 5.7. COVENANTS AS TO THE TRUST
For so long as the Trust Securities of the Trust remain outstanding, the
Company will (i) 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, (ii) use its reasonable efforts to cause the Trust (a) to
remain a business trust, except in connection with a distribution of Securities,
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
(b) to otherwise continue not to be treated as an association taxable as a
corporation or partnership for United States federal income tax purposes and
(iii) to use its reasonable efforts to cause each Holder of Trust Securities to
be treated as owning an individual beneficial interest in the Securities.
If the Junior Subordinated Debentures are to be issued as a Global
Subordinated Debenture in connection with the distribution of the Junior
Subordinated Debentures to the holders of the Preferred Securities issued by the
Trust upon a Dissolution Event, the Company will use its best efforts to list
such Junior Subordinated Debentures on the Nasdaq National Market or on such
other exchange as the Preferred Securities may then be listed.
ARTICLE SIX
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 6.1. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
SECURITYHOLDERS
The Company will furnish or cause to be furnished to the Trustee (a) on a
monthly basis on each regular record date (as defined in Section 2.5(a)) a list,
in such form as the Trustee may reasonably require, of the names and addresses
of the Holders as of such
24
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 Security Registrar.
SECTION 6.2. PRESERVATION OF INFORMATION; COMMUNICATIONS WITH
SECURITYHOLDERS
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders
contained in the most recent list furnished to it as provided in Section
6.1 and as to the names and addresses of Holders received by the Trustee in
its capacity as Security Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided in
Section 6.1 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section 312(b) of
the Trust Indenture Act with other Securityholders with respect to their
rights under this Indenture or under the Junior Subordinated Debentures.
SECTION 6.3. REPORTS BY THE COMPANY
(a) The Company covenants and agrees to file with the Trustee, within
15 days after the Company is required to file the same with the Commission,
copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) that
the Company may be required to file with the Commission pursuant to Section
13 or Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents 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 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.
25
(c) The Company covenants and agrees to transmit by mail, first-class
postage prepaid, or reputable over-night delivery service that provides for
evidence of receipt, to the Securityholders, as their names and addresses
appear upon the 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.
SECTION 6.4. REPORTS BY THE TRUSTEE
(a) On or before July 15 in each year in which any of the Junior
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 May 15, if and to the extent required under Section 313(a)
of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c) of the
Trust Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with the Company,
and also with the Commission.
ARTICLE SEVEN
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 7.1. 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 Junior 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 Junior Subordinated Debentures as and when the same shall
become due and payable whether at maturity, upon redemption, by
declaration or otherwise; provided, however, that a valid extension of
the maturity in
26
accordance with the terms of this Indenture shall not constitute a
default in the payment of principal;
(iii) the Company fails to observe or perform any other of
its covenants or agreements hereunder with respect to the Junior
Subordinated Debentures for a period of 90 days after the date on
which written notice of such failure, requiring the same to be
remedied and stating that such notice is a "Notice of Default"
hereunder, shall have been given to the Company by the Trustee, by
registered or certified mail, or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Junior Subordinated
Debentures at the time Outstanding;
(iv) the Company pursuant to or within the meaning of any
Bankruptcy Law (1) commences a voluntary case, (2) consents to the
entry of an order for relief against it in an involuntary case, (3)
consents to the appointment of a custodian of it or for all or
substantially all of its property or (4) makes a general assignment
for the benefit of its creditors;
(v) a court of competent jurisdiction enters an order under any
Bankruptcy Law that (1) is for relief against the Company in an
involuntary case, (2) appoints a custodian of the Company for all or
substantially all of its property, or (3) orders the liquidation of
the Company, and the order or decree remains unstayed and in effect
for 90 days; or
(vi) in the event Junior 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 (1) the distribution of
Junior Subordinated Debentures to holders of Trust Securities in
liquidation of their interests in the Trust, (2) the redemption of all
of the outstanding Trust Securities of the Trust or (3) certain
mergers, consolidations or amalgamations, each as permitted by the
Trust Agreement.
(b) In each and every such case, unless the principal of all the
Junior 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 Junior 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 Junior
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
Junior Subordinated Debentures to the contrary.
27
(c) At any time after the principal of the Junior 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 Junior 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 Junior Subordinated Debentures and
the principal of any and all Junior 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 Junior Subordinated Debentures to the date of such
payment or deposit) and the amount payable to the Trustee under Section
9.6, and (ii) any and all Events of Default under this Indenture, other
than the nonpayment of principal on Junior Subordinated Debentures that
shall not have become due by their terms, shall have been remedied or
waived as provided in Section 7.6. 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 Junior 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 7.2. 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 Junior 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 Junior
Subordinated Debentures when the same shall have become due and payable,
whether upon maturity of the Junior Subordinated Debentures or upon
redemption or upon declaration or otherwise, then, upon demand of the
Trustee, the Company will pay to the Trustee, for the benefit of the Holders
of the Junior Subordinated Debentures, the whole amount that then shall have
become
28
due and payable on all such Junior 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 Junior 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 Junior
Subordinated Debentures; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, and the
amount payable to the Trustee under Section 9.6.
(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 Junior 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 Junior 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 Junior 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 9.6; 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 any amount
due it under Section 9.6.
(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 Junior
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
29
provision for payment to the Trustee of any amounts due under Section 9.6,
be for the ratable benefit of the Holders of the Junior Subordinated
Debentures.
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 Junior 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.
SECTION 7.3. APPLICATION OF MONEYS COLLECTED
Any moneys collected by the Trustee pursuant to this Article with respect
to the Junior 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 Junior
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 9.6;
SECOND: To the payment of all Senior Indebtedness of the Company if
and to the extent required by Article Sixteen; and
THIRD: To the payment of the amounts then due and unpaid upon Junior
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 Junior Subordinated Debentures for principal and interest,
respectively.
SECTION 7.4. 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 (i) such Holder
previously shall have given to the Trustee written
30
notice of an Event of Default and of the continuance thereof; (ii) the Holders
of not less than 25% in aggregate principal amount of the Junior 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;
(iii) such Holder or Holders shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby; and (iv) the Trustee for 60 days after its receipt
of such notice, request and offer of indemnity shall have failed to institute
any such action, suit or proceeding; and (v) during such 60 day period, the
Holders of a majority in principal amount of the Junior 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
Junior 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 Junior 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 Junior 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 7.5. RIGHTS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER
(a) Except as otherwise provided in Section 7.2, 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 Junior 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 Junior Subordinated Debentures.
(b) No delay or omission of the Trustee or of any Holder of any of
the Junior 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 7.4, every power and remedy given by this Article or by law to the
Trustee or the Securityholders may be exercised from
31
time to time, and as often as shall be deemed expedient, by the Trustee or
by the Securityholders.
SECTION 7.6. CONTROL BY SECURITYHOLDERS
The Holders of a majority in aggregate principal amount of the Junior
Subordinated Debentures at the time Outstanding, determined in accordance with
Section 10.4, shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee; provided, however, that such
direction shall not be in conflict with any rule of law or with this Indenture.
Subject to the provisions of Section 9.1, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith shall, by a
Responsible Officer or Officers of the Trustee, determine that the proceeding so
directed would involve the Trustee in personal liability. The Holders of a
majority in aggregate principal amount of the Junior Subordinated Debentures at
the time Outstanding affected thereby, determined in accordance with Section
10.4, may on behalf of the Holders of all of the Junior Subordinated Debentures
waive any past default in the performance of any of the covenants contained
herein and its consequences, except (i) a default in the payment of the
principal of or interest on any of the Junior 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 7.1(c)), (ii) a default in the covenants contained in
Section 5.6 or (iii) in respect of a covenant or provision hereof which under
Article Eleven cannot be modified or amended without the consent of the Holder
of each Outstanding Junior Subordinated Debenture affected; provided, however,
that if the Junior 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 Junior
Subordinated Debentures is required, such waiver shall not be effective until
each Holder of the Trust Securities of the Trust shall have consented to such
waiver. Upon any such waiver, the default covered thereby shall be deemed to be
cured for all purposes of this Indenture and the Company, the Trustee and the
Holders of the Junior 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 7.7. UNDERTAKING TO PAY COSTS
All parties to this Indenture agree, and each Holder of any Junior
Subordinated Debentures by such Xxxxxx'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
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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 Junior Subordinated Debentures, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or
interest on the Junior Subordinated Debentures on or after the due dates
thereof.
ARTICLE EIGHT
FORM OF JUNIOR SUBORDINATED DEBENTURE AND ORIGINAL ISSUE
SECTION 8.1. FORM OF JUNIOR SUBORDINATED DEBENTURE
The Junior 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 8.2. ORIGINAL ISSUE OF JUNIOR SUBORDINATED DEBENTURES
Junior Subordinated Debentures in the aggregate principal amount of
$11,340,200 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 Junior Subordinated Debentures to or upon the
written order of the Company, signed by its Chairman, its Vice Chairman, its
President, any Vice President or its Chief Financial Officer, without any
further action by the Company.
ARTICLE NINE
CONCERNING THE TRUSTEE
SECTION 9.1. 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 Junior 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.
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(b) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have
occurred:
(i) 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
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case
of any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirement of this Indenture;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a majority in principal
amount of the Junior 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
(4) none of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably
assured to it.
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SECTION 9.2. CERTAIN RIGHTS OF TRUSTEE
Except as otherwise provided in Section 9.1:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Board Resolution or an
instrument signed in the name of the Company by the President or any Vice
President and by the Secretary or an Assistant Secretary or the Chief
Financial 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 Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default (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 Junior Subordinated Debentures (determined as provided in
Section 10.4); provided, however, that if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of
the Trustee, not
35
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 9.3. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OR
THE JUNIOR SUBORDINATED DEBENTURES
(a) The recitals contained herein and in the Junior 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 Junior Subordinated Debentures.
(c) The Trustee shall not be accountable for the use or application
by the Company of any of the Junior Subordinated Debentures or of the
proceeds of such Junior 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.
SECTION 9.4. MAY HOLD JUNIOR 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 Junior Subordinated
Debentures with the same rights it would have if it were not Trustee, paying
agent or Securities Registrar.
SECTION 9.5. MONEYS HELD IN TRUST
Subject to the provisions of Section 13.5, 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 agree with the Company to pay thereon.
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SECTION 9.6. COMPENSATION AND REIMBURSEMENT
(a) The Company covenants and agrees to pay to the Trustee, and the
Trustee shall be entitled to, such reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust), as the Company and the Trustee may from time
to time agree in writing, for all services rendered by it in the execution
of the trusts hereby created and in the exercise and performance of any of
the powers and duties hereunder of the Trustee, and, except as otherwise
expressly provided herein, the Company will pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all Persons not regularly in its
employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith. The Company also covenants to indemnify the
Trustee (and its officers, agents, directors and employees) for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim of liability
in the premises.
(b) The obligations of the Company under this Section to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior
to that of the Junior 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 Junior Subordinated Debentures.
SECTION 9.7. RELIANCE ON OFFICERS' CERTIFICATE
Except as otherwise provided in Section 9.1, whenever in the administration
of the provisions of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or suffering or
omitting to take any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the Trustee and
such certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted to be taken by it under the provisions of this Indenture upon the faith
thereof.
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SECTION 9.8. DISQUALIFICATION; CONFLICTING INTERESTS
If the Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
SECTION 9.9. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY
There shall at all times be a Trustee with respect to the Junior
Subordinated Debentures issued hereunder which shall at all times be a
corporation organized and doing business under the laws of the United States of
America or any State or Territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Commission,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, and subject to supervision or
examination by Federal, State, Territorial, or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. The
Company may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 9.10.
SECTION 9.10. 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, 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 Junior Subordinated
Debentures for at least six months may, subject to the provisions of
Section 7.7, 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:
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(i) the Trustee shall fail to comply with the provisions of
Section 9.8 after written request therefor by the Company or by any
Securityholder who has been a bona fide Holder of Junior Subordinated
Debentures for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 9.9 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 7.7, unless the Trustee's duty to
resign is stayed as provided herein, any Securityholder who has been a
bona fide Holder of Junior Subordinated Debentures for at least six
months may, on behalf of that Xxxxxx 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
Junior 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 9.11.
SECTION 9.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
(a) In case of the appointment hereunder 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
39
with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor trustee all the rights, powers,
and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor trustee all property and money held by such
retiring Trustee hereunder.
(b) Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, powers and trusts
referred to in paragraph (a) of this 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 9.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided that such corporation shall be
qualified and eligible under the provisions of this Article Nine, 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
Junior 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 Junior Subordinated Debentures so authenticated with the same effect
as if such successor Trustee had itself authenticated such Junior Subordinated
Debentures.
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SECTION 9.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE
COMPANY
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent included therein.
SECTION 9.14. APPOINTMENT OF AUTHENTICATING AGENT
At any time when any of the Junior 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 Junior
Subordinated Debentures issued upon original issuance, exchange, registration of
transfer or partial redemption thereof or pursuant to Section 2.8, and Junior
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 Junior 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 corporation
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
$10,000,000 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 corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation 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
41
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.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 9.6.
If an appointment is made pursuant to this Section, the Junior Subordinated
Debentures may have endorsed thereon, in lieu of the form of certificate of
authentication set forth in Section 8.1, a certificate of authentication in the
following form:
"This is one of the Junior Subordinated Debentures described in the
within mentioned Indenture."
__________________________________________
As Trustee
By __________________________________________
As Authenticating Agent
By __________________________________________
Authorized Signature
ARTICLE TEN
CONCERNING THE SECURITYHOLDERS
SECTION 10.1. 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 Junior 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
42
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 Junior 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 Junior Subordinated Debentures shall be computed as of
the record date; provided, however, that no such authorization, agreement or
consent by such Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.
SECTION 10.2. PROOF OF EXECUTION BY SECURITYHOLDERS
Subject to the provisions of Section 6.1, 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 Junior
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 Junior 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 10.3. WHO MAY BE DEEMED OWNERS
Prior to the due presentment for registration of transfer of any Junior
Subordinated Debenture, the Company, the Trustee, any paying agent and any
Securities Registrar may deem and treat the Person in whose name such Junior
Subordinated Debenture shall be registered upon the books of the Company as the
absolute owner of such Junior Subordinated Debenture (whether or not such Junior
Subordinated Debenture shall be overdue and
43
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 2.3) interest on such Junior
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.
SECTION 10.4. CERTAIN JUNIOR SUBORDINATED DEBENTURES OWNED BY
COMPANY DISREGARDED
In determining whether the Holders of the requisite aggregate principal
amount of Junior Subordinated Debentures have concurred in any direction,
consent or waiver under this Indenture, the Junior Subordinated Debentures that
are owned by the Company or any other obligor on the Junior 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 Junior
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 Junior Subordinated Debentures that the
Trustee actually knows are so owned shall be so disregarded. The Junior
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 with respect to
such Junior Subordinated Debentures and that the pledgee is not a Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor. In case of a dispute
as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
SECTION 10.5. ACTIONS BINDING ON FUTURE SECURITYHOLDERS
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 10.1, of the taking of any action by the Holders of the
majority or percentage in aggregate principal amount of the Junior 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 10.2, revoke such action so far as concerns such Xxxxxx's Junior
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 Junior Subordinated Debentures, and of any
Junior 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 Junior Subordinated Debentures.
Any action taken by the Holders of the majority or percentage in aggregate
principal amount of the Junior 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 Junior Subordinated Debentures.
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ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 11.1. 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
Junior 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 Twelve;
(c) to provide for uncertificated Junior Subordinated Debentures in
addition to or in place of certificated Junior 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 add to, delete from, or revise the conditions, limitations,
and restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Junior Subordinated Debentures, as herein
set forth;
(f) to make any change that does not adversely affect the rights of
any Securityholder in any material respect; or
(g) 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.
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 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
45
Junior Subordinated Debentures at the time Outstanding, notwithstanding any of
the provisions of Section 11.2.
SECTION 11.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS
With the consent (evidenced as provided in Section 10.1) of the Holders of
not less than a majority in aggregate principal amount of the Junior
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 11.1 the rights of the Holders of the Junior
Subordinated Debentures under this Indenture; provided, however, that no such
supplemental indenture shall without the consent of the Holders of each Junior
Subordinated Debenture then Outstanding, (i) change the stated maturity of the
Junior Subordinated Debentures, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or (ii)
reduce the percentage of principal amount of Junior Subordinated Debentures, the
Holders of which are required to consent to any such supplemental indenture;
provided, further, that if the Junior 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 Junior
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 11.3. EFFECT OF SUPPLEMENTAL INDENTURES
Upon the execution of any supplemental indenture pursuant to the provisions
of this Article or of Section 12.1, this Indenture shall be and be deemed to be
modified and amended in accordance therewith.
SECTION 11.4. JUNIOR SUBORDINATED DEBENTURES AFFECTED BY
SUPPLEMENTAL INDENTURES
Junior 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 12.1, 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,
46
new Junior 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 by the Company, authenticated by the
Trustee and delivered in exchange for the Junior Subordinated Debentures then
Outstanding.
SECTION 11.5. 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 Section 9.1, 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, 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 TWELVE
SUCCESSOR CORPORATION
SECTION 12.1. 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 (i) 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 Junior
Subordinated Debentures issued under this Indenture; (ii) 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 (iii) such successor Person expressly assumes the due and
punctual performance and observance of all
47
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 12.2. 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, of the due and punctual payment of the
principal of and interest on all of the Junior 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 Junior 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 Junior Subordinated Debentures thereafter
to be issued as may be appropriate.
SECTION 12.3. EVIDENCE OF CONSOLIDATION, ETC., TO TRUSTEE
The Trustee, subject to the provisions of Section 9.1, may receive an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, conveyance, transfer or other disposition, and any such assumption, comply
with the provisions of this Article.
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE
SECTION 13.1. SATISFACTION AND DISCHARGE OF INDENTURE
If at any time: (a) the Company shall have delivered to the Trustee for
cancellation all Junior Subordinated Debentures theretofore authenticated (other
than any Junior Subordinated Debentures that shall have been destroyed, lost or
stolen and that shall have been replaced or paid as provided in Section 2.8) and
Junior 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 13.5); or (b) all such Junior 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
48
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 Junior 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 2.2, 2.3, 2.4,
2.5, 4.1, 4.2, 4.3 and 9.10, that shall survive until the date of maturity or
redemption date, as the case may be, and Sections 9.6 and 13.5, that shall
survive to such date and thereafter, and the Trustee, on demand of the Company
and at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture.
SECTION 13.2. DISCHARGE OF OBLIGATIONS
If at any time all such Junior Subordinated Debentures not theretofore
delivered to the Trustee for cancellation or that have not become due and
payable as described in Section 13.1 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 Junior 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 2.2, 2.3, 2.4, 2.5, 4.1, 4.2, 4.3, 9.6, 9.10 and 13.5 hereof that shall
survive until such Junior Subordinated Debentures shall mature and be paid.
Thereafter, Sections 9.6 and 13.5 shall survive.
SECTION 13.3. DEPOSITED MONEYS TO BE HELD IN TRUST
All monies or Governmental Obligations deposited with the Trustee pursuant
to Sections 13.1 or 13.2 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 Junior
Subordinated Debentures for the payment or redemption of which such moneys or
Governmental Obligations have been deposited with the Trustee.
SECTION 13.4. PAYMENT OF MONIES 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
49
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 13.5. REPAYMENT TO COMPANY
Any monies 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 Junior Subordinated Debentures that are not applied but remain
unclaimed by the Holders of such Junior Subordinated Debentures for at least two
years after the date upon which the principal of or interest on such Junior
Subordinated Debentures shall have respectively become due and payable, shall be
repaid to the Company on January 16 of each year or (if then held by the
Company) shall be discharged from such trust; and thereupon the paying agent and
the Trustee shall be released from all further liability with respect to such
moneys or Governmental Obligations, and the Holder of any of the Junior
Subordinated Debentures entitled to receive such payment shall thereafter, as an
unsecured general creditor, look only to the Company for the payment thereof.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 14.1. NO RECOURSE
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Junior Subordinated Debenture, or for any claim based
thereon or otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or 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 Junior 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 Junior Subordinated Debentures or implied therefrom,
are hereby expressly waived and released as
50
a condition of, and as a consideration for, the execution of this Indenture and
the issuance of such Junior Subordinated Debentures.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 15.1. EFFECT ON SUCCESSORS AND ASSIGNS
All the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Company or the Trustee shall bind their
respective successors and assigns, whether so expressed or not.
SECTION 15.2. 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 corporation that shall at the
time be the lawful sole successor of the Company.
SECTION 15.3. SURRENDER OF COMPANY POWERS
The Company by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company, and thereupon such power so
surrendered shall terminate both as to the Company and as to any successor
corporation.
SECTION 15.4. NOTICES
Except as otherwise expressly provided herein any notice or demand that by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the Holders of Junior 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 United Community Bancshares,
Inc., 0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxxxx 00000, Attention Chief
Financial 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.
SECTION 15.5. GOVERNING LAW
This Indenture and each Junior Subordinated Debenture shall be deemed to be
a contract made under the internal laws of the State of Minnesota and for all
purposes shall be construed in accordance with the laws of said State.
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SECTION 15.6. TREATMENT OF JUNIOR SUBORDINATED DEBENTURES AS DEBT
It is intended that the Junior 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 15.7. COMPLIANCE CERTIFICATES AND OPINIONS
(a) Upon any application or demand by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as
to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
demand, no additional certificate or opinion need be furnished.
(b) Every certificate or opinion delivered to the Trustee with
respect to compliance with a condition or covenant in this Indenture shall
include (1) a statement that the Person making such certificate or opinion
has read such covenant or condition; (2) a brief statement as to the nature
and scope of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based; (3) a
statement that, in the opinion of such Person, 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 (4) a statement as to whether or not, in the
opinion of such Person, such condition or covenant has been complied with.
SECTION 15.8. PAYMENTS ON BUSINESS DAYS
In any case where the date of maturity of interest or principal of the
Junior Subordinated Debentures or the date of redemption of the Junior
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 15.9. CONFLICT WITH TRUST INDENTURE ACT
If and to the extent that any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
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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.
SECTION 15.11. SEPARABILITY
In case any one or more of the provisions contained in this Indenture or in
the Junior 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 Junior Subordinated Debentures, but this Indenture and the Junior
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 Junior 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 Junior Subordinated Debentures held as the assets of the Trust, any holder
of Preferred Securities may institute legal proceedings directly against the
Company to enforce such Property Trustee's rights under this Indenture without
first instituting any legal proceedings against such Property Trustee or any
other person or entity. Notwithstanding 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 Junior 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 Junior
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 Junior Subordinated Debentures. This
Section 15.3 may not be amended without the prior written consent of the holders
of all of the Preferred Securities.
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ARTICLE SIXTEEN
SUBORDINATION OF JUNIOR SUBORDINATED DEBENTURES
SECTION 16.1. AGREEMENT TO SUBORDINATE
The Company covenants and agrees, and each Holder of Junior Subordinated
Xxxxxxxxxx issued hereunder by such Xxxxxx's acceptance thereof likewise
covenants and agrees, that all Junior Subordinated Debentures shall be issued
subject to the provisions of this Article Sixteen; 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 Junior
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 Indebtedness, whether outstanding at the
date of this Indenture or thereafter incurred.
No provision of this Article Sixteen shall prevent the occurrence of any
default or Event of Default hereunder.
SECTION 16.2. DEFAULT ON SENIOR INDEBTEDNESS
In the event and during the continuation of any default by the Company in
the payment of principal, premium, interest or any other payment due on any
Senior Indebtedness of the Company or in the event that the maturity of any
Senior Indebtedness of the Company has been accelerated because of a default,
then, in either case, no payment shall be made by the Company with respect to
the principal of or interest on the Junior 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 16.2, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
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SECTION 16.3. LIQUIDATION; DISSOLUTION; BANKRUPTCY
Upon any payment by the Company or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to creditors
upon any dissolution or winding-up or liquidation or reorganization of the
Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all Senior Indebtedness
of the Company shall first be paid in full, or payment thereof provided for in
money in accordance with its terms, before any payment is made by the Company on
account of the principal or interest on the Junior 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 Sixteen, 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 Indebtedness of the
Company (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, to the extent
necessary to pay such Senior Indebtedness in full, in money or money's worth,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Indebtedness, before any payment or distribution is made
to the Holders or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee before all Senior Indebtedness of the Company is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, and their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior Indebtedness of the
Company, as the case may be, remaining unpaid to the extent necessary to pay
such Senior Indebtedness in full in money in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the benefit of
the holders of such Senior Indebtedness.
For purposes of this Article Sixteen, 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 Sixteen with
respect to the Junior Subordinated Debentures to the payment of all
55
Senior Indebtedness of the Company, as the case may be, that may at the time be
outstanding, provided that (i) such Senior Indebtedness is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment, and
(ii) the rights of the holders of such Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided for in
Article Twelve of this Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 16.3 if such
other corporation shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article Twelve of this Indenture.
Nothing in Section 16.2 or in this Section 16.3 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 9.6 of this Indenture.
SECTION 16.4. SUBROGATION
Subject to the payment in full of all Senior Indebtedness of the Company,
the rights of the Holders of the Junior Subordinated Debentures shall be
subrogated to the rights of the holders of such Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company, as the
case may be, applicable to such Senior Indebtedness until the principal of and
interest on the Junior Subordinated Debentures shall be paid in full; and, for
the purposes of such subrogation, no payments or distributions to the holders of
such Senior Indebtedness of any cash, property or securities to which the
Holders of the Junior Subordinated Debentures or the Trustee would be entitled
except for the provisions of this Article Sixteen, and no payment over pursuant
to the provisions of this Article Sixteen to or for the benefit of the holders
of such Senior Indebtedness by Holders of the Junior Subordinated Debentures or
the Trustee, shall, as between the Company, its creditors other than holders of
Senior Indebtedness of the Company, and the Holders of the Junior Subordinated
Debentures, be deemed to be a payment by the Company to or on account of such
Senior Indebtedness. It is understood that the provisions of this Article
Sixteen are and are intended solely for the purposes of defining the relative
rights of the Holders of the Junior Subordinated Debentures, on the one hand,
and the holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article Sixteen or elsewhere in this Indenture or
in the Junior Subordinated Debentures is intended to or shall impair, as between
the Company, its creditors other than the holders of Senior Indebtedness of the
Company, and the Holders of the Junior Subordinated Debentures, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders of
the Junior Subordinated Debentures the principal of and interest on the Junior
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 Junior Subordinated Debentures and creditors of the
Company, other than the holders of Senior Indebtedness of the Company, nor shall
anything herein or therein prevent the Trustee or the Holder of any Junior
Subordinated Debenture from exercising all
56
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Sixteen of the
holders of such Senior Indebtedness in respect of cash, property or securities
of the Company, as the case may be, received upon the exercise of any such
remedy.
Upon any payment or distribution of assets of the Company referred to in
this Article Sixteen, the Trustee, subject to the provisions of Section 9.1, and
the Holders of the Junior 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
Junior Subordinated Debentures, for the purposes of ascertaining the Persons
entitled to participate in such distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, as the case may be, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Sixteen.
SECTION 16.5. TRUSTEE TO EFFECTUATE SUBORDINATION
Each Holder of Junior Subordinated Debentures by such Xxxxxx's acceptance
thereof authorizes and directs the Trustee on such Xxxxxx's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article Sixteen and appoints the Trustee such Holder's
attorney-in-fact for any and all such purposes.
SECTION 16.6. 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 monies to or by the Trustee in respect of the Junior Subordinated
Debentures pursuant to the provisions of this Article Sixteen. Notwithstanding
the provisions of this Article Sixteen or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts
that would prohibit the making of any payment of monies to or by the Trustee in
respect of the Junior Subordinated Debentures pursuant to the provisions of this
Article Sixteen, unless and until a Responsible Officer of the Trustee shall
have received written notice thereof from the Company or a holder or holders of
Senior Indebtedness or from any trustee therefor; and before the receipt of any
such written notice, the Trustee, subject to the provisions of Section 9.1,
shall be entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice provided for in
this Section 16.6 at least two Business Days prior to the date upon which by the
terms hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of or interest on any Junior
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
57
they were received, and shall not be affected by any notice to the contrary that
may be received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 9.1, shall be entitled to
conclusively rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness of the Company (or a
trustee on behalf of such holder), to establish that such notice has been given
by a holder of such Senior Indebtedness or a trustee on behalf of any such
holder or holders. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of such Senior Indebtedness to participate in any payment or distribution
pursuant to this Article Sixteen, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of such
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article Sixteen, 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 16.7. RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR INDEBTEDNESS
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article Sixteen in respect of any Senior Indebtedness at any
time held by it, to the same extent as any other holder of Senior Indebtedness,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
With respect to the holders of Senior Indebtedness 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 Sixteen, and no
implied covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of such Senior
Indebtedness and, subject to the provisions of Section 9.1, the Trustee shall
not be liable to any holder of such Senior Indebtedness if it shall pay over or
deliver to Holders of Junior Subordinated Debentures, the Company or any other
Person money or assets to which any holder of such Senior Indebtedness shall be
entitled by virtue of this Article Sixteen or otherwise.
SECTION 16.8. SUBORDINATION MAY NOT BE IMPAIRED
No right of any present or future holder of any Senior Indebtedness of the
Company to enforce subordination as herein provided shall at any time in any way
be prejudiced or impaired by any act or failure to act on the part of the
Company 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.
58
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness of the Company may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Junior Subordinated Debentures, without incurring responsibility to the Holders
of the Junior Subordinated Debentures and without impairing or releasing the
subordination provided in this Article Sixteen or the obligations hereunder of
the Holders of the Junior Subordinated Debentures to the holders of such Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, such
Senior Indebtedness, or otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any agreement under which
such Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
UNITED COMMUNITY BANCSHARES, INC.
By:_____________________________________
Name: X. Xxxxx Xxxxx
Title: Chairman
and
By:_____________________________________
Name: Xxxxx X. Xxxx
Title: President
WILMINGTON TRUST COMPANY,
AS TRUSTEE
By:_____________________________________
Name: _____________________________
Title: ____________________________
59
STATE OF MINNESOTA )
) ss:
COUNTY OF HENNEPIN )
On the _______ day of January 1997, before me personally came X. Xxxxx
Xxxxx and Xxxxx X. Xxxx, to me known, who, being by me duly sworn, did depose
and say that they are the Chairman and President, respectively, of UNITED
COMMUNITY BANCSHARES, INC., one of the corporations described in and which
executed the above instrument; and that they signed their names thereto on
behalf of said corporation by authority of the Board of Directors of said
corporation.
___________________________________
Notary Public
STATE OF DELAWARE )
) ss:
COUNTY OF ______________ )
On the _______ day of January 1997, before me personally came
______________________, to me known, who, being by me duly sworn, did depose and
say that he/she is the _______________________ of WILMINGTON TRUST COMPANY, one
of the corporations described in and which executed the above instrument; and
that he/she signed his/her name xxxxxxx on behalf of said corporation by
authority of the Board of Directors of said corporation.
___________________________________
Notary Public
60
EXHIBIT A
(FORM OF FACE OF JUNIOR SUBORDINATED DEBENTURE)
This Junior 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 Junior Subordinated
Debenture is exchangeable for Junior 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 Junior
Subordinated Debenture (other than a transfer of this Junior 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 Junior Subordinated Debenture is presented by an authorized
representative of Wilmington Trust Company (Xxxxxx Square North, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0001) to the issuer or its agent for
registration of transfer, exchange or payment, and any Junior Subordinated
Debenture issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of Wilmington Trust Company (and any
payment hereon is made to Cede & Co. or to such other entity as is requested by
an authorized representative of Wilmington Trust Company), 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. _______________________ $_______________________________
CUSIP No.______________________________
UNITED COMMUNITY BANCSHARES, INC.
___% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE JANUARY 15, 2027
United Community Bancshares, Inc., a Minnesota corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ______________ or
registered assigns, the principal sum of _____________ Dollars ($___________) on
January 15, 2027 (which date may be extended as provided in the Indenture, the
"Stated Maturity"), and to pay interest on said principal sum from January ___,
1997, 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 the last day
of March, June, September and December in each year commencing March 31, 1997,
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 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 Junior Subordinated Debenture is not a
business day, then payment of interest payable on such date will be made on the
next succeeding day that is a business day (and without any interest or other
payment in respect of any such delay), except that, if such business day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding business day, in each case with the same force and effect as if made
on such date. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the person in whose name this Junior Subordinated Debenture (or one
or more Predecessor Securities, 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 Junior 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 Junior
Subordinated Debenture is the Property Trustee (as defined in the Indenture),
the payment of the principal of and interest on this Junior 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 January 15, 2002, subject to the Company having received prior
approval of the Federal Reserve (as defined in the Indenture) if then required
under applicable capital guidelines or policies of the Federal Reserve. Such
date may also be extended at any time at the election of the Company for one or
more periods, but in no event to a date later than January 15, 2046, subject to
certain limitations described in the Indenture.
The indebtedness evidenced by this Junior 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 Indebtedness (as defined in the
Indenture), and this Junior Subordinated Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Junior
Subordinated Xxxxxxxxx, by accepting the same, (a) agrees to and shall be bound
by such provisions, (b) authorizes and directs the Trustee on his or her behalf
to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
This Junior 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.
The provisions of this Junior 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: ___________________________ UNITED COMMUNITY BANCSHARES, INC.
By:______________________________
Name: X. Xxxxx Xxxxx
Title: Chairman
and By:______________________________
Name: Xxxxx X. Xxxx
Title: President
Attest:
By:___________________________
Name: Xxxx X. XxXxx
Title: Secretary
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This is one of the Junior Subordinated Debentures described in the
within-mentioned Indenture.
Dated:_____________________________ WILMINGTON TRUST COMPANY
By:_______________________________
Authorized Signature
[FORM OF REVERSE OF JUNIOR SUBORDINATED DEBENTURE]
_____% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
(CONTINUED)
This Junior Subordinated Debenture is one of the junior subordinated
deferrable interest debentures of the Company (herein sometimes referred to as
the "Junior Subordinated Debentures"), specified in the Indenture, all issued
under and pursuant to a Subordinated Indenture dated as of January __, 1997 (the
"Indenture") duly executed and delivered between the Company and Wilmington
Trust Company, as Trustee (the "Trustee"), to which Indenture reference is
hereby made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the Holders of
the Junior Subordinated Debentures. The Junior 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 Junior 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 2:00 p.m. Minneapolis 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 Junior Subordinated
Debenture at the option of the Company, in whole or in part, from time to time,
on or after January 15, 2002, 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 Junior
Subordinated Debentures are only partially redeemed by the Company pursuant to
this paragraph, the Junior 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 Junior 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 Junior
Subordinated Debentures held by each Junior Subordinated Debenture Holder to be
redeemed in accordance with its procedures.
In the event of redemption of this Junior Subordinated Debenture in part
only, a new Junior Subordinated Debenture for the unredeemed portion hereof will
be issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default (as defined in the Indenture), shall have
occurred and be continuing, the principal of all of the Junior Subordinated
Debentures may be declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the conditions
provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Junior
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 Junior Subordinated Debentures;
provided, however, that no such supplemental indenture shall (i) extend the
fixed maturity of the Junior 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 Junior Subordinated Debenture so affected, or (ii) reduce the
aforesaid percentage of Junior Subordinated Debentures, the Holders of which
are required to consent to any such supplemental indenture, without the
consent of the Holders of each Junior Subordinated Debenture then Outstanding
and affected thereby. The Indenture also contains provisions permitting the
Holders of a majority in aggregate principal amount of the Junior
Subordinated Debentures at the time Outstanding, on behalf of all of the
Holders of the Junior 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 Junior
Subordinated Debentures. Any such consent or waiver by the registered Holder
of this Junior 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 Junior Subordinated Debenture and of any
Junior 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 Junior
Subordinated Debenture.
No reference herein to the Indenture and no provision of this Junior
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 Junior 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 Junior
Subordinated Debentures and from time to time to extend the interest payment
period of such Junior 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 Junior 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.
As provided in the Indenture and subject to certain limitations therein set
forth, this Junior Subordinated Debenture is transferable by the registered
Holder hereof on the Securities Register of the Company, upon surrender of this
Junior 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
Xxxxxx's attorney duly authorized in writing, and thereupon one or more new
Junior 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 Junior
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
Junior 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 Junior 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.
The Junior Subordinated Debentures are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof. This
Global Subordinated Debenture is exchangeable for Junior Subordinated Debentures
in definitive form only under certain limited circumstances set forth in the
Indenture. Junior Subordinated Debentures so issued are issuable only in
registered form without coupons in denominations of $25 and any integral
multiple thereof.