Exhibit 4(i)
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF THE SERIES A ISSUER THAT (A) THIS SECURITY
MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE SERIES
A ISSUER OR ANY AFFILIATE THEREOF, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN AN "OFFSHORE
TRANSACTION" (AS DEFINED IN REGULATION S) IN ACCORDANCE WITH REGULATION S UNDER
THE SECURITIES ACT, (4) TO A PERSON THAT IS AN "ACCREDITED INVESTOR" AS DEFINED
IN RULE 501(A) UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR
INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
(5) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED
BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT OR (6) PURSUANT TO AN
EFFECTIVE REGISTRATION UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, OR ANY
APPLICABLE JURISDICTION, (B) IT WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THIS SECURITY OF THE RESALE RESTRICTIONS SET
FORTH IN (A) ABOVE, AND (C) WITH RESPECT TO ANY TRANSFER OF THIS SECURITY BY AN
ACCREDITED INVESTOR OR IN AN "OFFSHORE TRANSACTION", IT WILL DELIVER TO THE
SERIES A ISSUER AND THE PROPERTY TRUSTEE SUCH CERTIFICATES, LEGAL OPINIONS AND
OTHER INFORMATION AS THEY MAY REQUIRE TO CONFIRM THAT THE TRANSFER BY IT
COMPLIES WITH APPLICABLE LAW. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE SERIES A ISSUER THAT IT IS (1) A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2) A PERSON
THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(A) UNDER THE SECURITIES
ACT THAT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (3) NOT A U.S. PERSON AND
THAT IT IS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF, OR AN ACCOUNT
SATISFYING THE REQUIREMENTS OF, PARAGRAPH (O) OF RULE 902 UNDER REGULATION S
UNDER THE SECURITIES ACT. THIS SECURITY WILL BE ISSUED, AND MAY BE TRANSFERRED,
ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN $100,000. ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS SECURITY IN A BLOCK HAVING A
LIQUIDATION AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO
LEGAL EFFECT WHATSOEVER. ANY SUCH TRANSFEREE SHALL BE DEEMED NOT TO BE THE
HOLDER OF SUCH SECURITIES FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE
RECEIPT OF INTEREST ON SUCH SECURITIES, AND SUCH TRANSFEREE SHALL BE DEEMED TO
HAVE NO INTEREST WHATSOEVER IN SUCH SECURITIES.
THE HOLDER, BY PURCHASING THIS SECURITY, IS DEEMED TO REPRESENT THAT IT (X)
IS NOT ITSELF, AND IS NOT ACQUIRING THE SECURITY WITH THE ASSETS OF, (i) AN
"EMPLOYEE BENEFIT PLAN" (WITHIN THE MEANING OF SECTION 3 (3) OR ERISA), A "PLAN"
(WITHIN THE MEANING OF SECTION 4975 (e)(i) OF THE INTERNAL REVENUE CODE), OR AN
ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN
THE ENTITY BY SUCH AN "EMPLOYEE BENEFIT PLAN" OR "PLAN" AND THE APPLICATION OF
THE PLAN ASSET REGULATION OR (ii) A "GOVERNMENTAL PLAN" (WITHIN THE MEANING OF
SECTION 3 (32) OF ERISA) OR (Y) (i) IS ITSELF, OR IS ACQUIRING THE SECURITY WITH
THE ASSETS OF, AN "INVESTMENT FUND" (WITHIN THE MEANING OF PART V (b) OF U.S.
DEPARTMENT OF LABOR PTE 84-14) MANAGED BY A "QUALIFIED PROFESSIONAL ASSET
MANAGER" (WITHIN THE MEANING OF PART V (a) OF PTE 84-14) WHICH HAS MADE OR
PROPERLY AUTHORIZED THE DECISION FOR SUCH FUND TO PURCHASE THE SECURITIES, UNDER
CIRCUMSTANCES SUCH THAT PTE 84-14 IS APPLICABLE TO THE PURCHASE AND HOLDING OF
SUCH SECURITIES, (ii) IS AN INSURANCE COMPANY POOLED SEPARATE ACCOUNT PURCHASING
SECURITIES PURSUANT TO PART I OF U.S. DEPARTMENT OF LABOR PTE 90-1 OR A BANK
COLLECTIVE INVESTMENT FUND PURCHASING PURSUANT TO PART I OF U.S. DEPARTMENT OF
LABOR PTE 91-38, AND IN EITHER CASE, NO "PLAN" OR "EMPLOYEE BENEFIT PLAN" NOT
PURCHASING PURSUANT TO PTE 84-14 OWNS MORE THAN 10% OF THE ASSETS OF SUCH
ACCOUNT OR COLLECTIVE FUND (WHEN AGGREGATED WITH OTHER PLANS OF THE SAME
EMPLOYER OR EMPLOYEE ORGANIZATION, (iii) IS AN INSURANCE COMPANY USING THE
ASSETS OF THE GENERAL ASSET ACCOUNT OF THE INSURANCE COMPANY TO PURCHASE THE
SECURITIES PURSUANT TO PART I OF THE U.S. DEPARTMENT OF LABOR PTE 95-60, IN
WHICH CASE THE RESERVES AND LIABILITIES FOR THE GENERAL ACCOUNT CONTRACTS HELD
BY OR ON BEHALF OF ANY PLAN, TOGETHER WITH ANY OTHER PLANS MAINTAINED BY THE
SAME EMPLOYER OR EMPLOYEE ORGANIZATION, DO NOT EXCEED 10% OF THE TOTAL RESERVES
AND LIABILITIES OF THE INSURANCE COMPANY GENERAL ACCOUNT (EXCLUSIVE OF SEPARATE
ACCOUNT LIABILITIES), PLUS SURPLUS AS SET FORTH IN THE NATIONAL ASSOCIATION OF
INSURANCE COMMISSIONERS ANNUAL STATEMENT FILED WITH THE STATE OF DOMICILE OF
THE INSURER OR (IV) IS A PLAN ACQUIRING THE SERIES A PREFERRED SECURITIES WITH
ASSETS OVER WHICH AN IN-HOUSE ASSET MANAGER (WITHIN THE MEANING OF PART IV (a)
OF PTE 96-23) HAS DISCRETIONARY AUTHORITY, UNDER CIRCUMSTANCES SUCH THAT PTE
96-23 IS APPLICABLE TO THE PURCHASE AND HOLDING OF SUCH SECURITIES.
XXXXX NATIONAL CORPORATION
8 5/8% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE,
SERIES A, DUE DECEMBER 31, 2026
No. $ 154,640,000
XXXXX NATIONAL CORPORATION, a corporation organized and existing under the
laws of Delaware (hereinafter called the "Corporation", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Xxxxx Capital, or registered assigns, the
principal sum of One Hundred and Fifty-Four Million, Six Hundred and Forty
Thousand Dollars ($154,640,000) or such other principal amount as may be set
forth in the records of the Securities Registrar hereinafter referred to in
accordance with the Indenture, on December 31, 2026. The Corporation further
promises to pay interest on said principal sum from December 13, 1996 or from
the most recent date (each such date, an "Interest Payment Date") to which
interest has been paid or duly provided for, semi-annually (subject to deferral
as set forth herein) in arrears on June 30 and December 31 of each year,
commencing on June 30, 1997, at the rate of 8 5/8% per annum, until the
principal hereof shall have become due and payable, plus Additional Interest, if
any, until the principal hereof is paid or duly provided for or made available
for payment 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 rate of 8 5/8% per annum, compounded
semi-annually. The amount of interest payable for any period less than a full
interest period shall be computed on the basis of twelve 30-day months and a
360-day year. In the event that any date on which interest is payable on this
Security is not a Business Day, then a payment of the 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 the date the payment was originally payable.
A "Business Day" shall mean any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office of the Trustee, or the principal office of the Property
Trustee under the Trust Agreement hereinafter referred to, for Xxxxx Capital, is
closed for business. 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 Security (or one or more
Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest
installment, which shall be the June 15 or December 15 (whether or not a
Business Day) next preceding such Interest Payment Date. Any such interest
installment not so punctually paid or duly provided for shall forthwith cease to
be payable to the Holder on such Regular Record Date and may either be paid to
the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
So long as no Event of Default has occurred and is continuing, the
Corporation shall have the right at any time during the term of this Security to
defer payment of interest on this Security, at any time or from time to time,
for up to 10 consecutive semi-annual interest payment periods with respect to
each deferral period (each an "Extension Period"), and at the end of which the
Corporation shall pay all interest then accrued and unpaid (together with
Additional Interest thereon to the extent permitted by applicable law);
provided, however, that no Extension Period shall extend beyond the Stated
Maturity of the principal of this Security; provided, further, that during any
such Extension Period, the Corporation shall not, and shall not permit any
Subsidiary of the Corporation to, (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Corporation's capital stock or (ii) make any payment
of principal, interest or premium, if any, on or repay, repurchase or redeem any
indebtedness securities of the Corporation that rank pari passu with or junior
in interest to this Security or (iii) make any guarantee payments with respect
to any guarantee by the Corporation of the debt securities of any Subsidiary of
the Corporation if such guarantee ranks pari passu with or junior in interest to
this Security (other than (a) dividends or distributions in Common Stock of the
Corporation, (b) any declaration of a dividend in connection with the
implementation of a Rights Plan or the issuance of any Common Stock or any class
or series of preferred stock of the Corporation under any Rights Plan in the
future or the redemption or repurchase of any rights distributed pursuant to a
Rights Plan, (c) payments under the Xxxxx Capital Guarantee, and (d) purchases
of Common Stock related to the issuance of Common Stock or rights under any of
the Corporation's benefit plans for its directors, officers or employees). Prior
to the termination of any such Extension Period, the Corporation may further
defer the payment of interest, provided that no Extension Period shall exceed 10
consecutive semi-annual
periods or extend beyond the Stated Maturity of the principal of this Security.
Upon the termination of any such Extension Period and upon the payment of all
amounts then due on any Interest Payment Date, the Corporation may elect to
begin a new Extension Period, subject to the above requirements. No interest
shall be due and payable during an Extension Period except at the end thereof.
The Corporation shall give the Property Trustee, the Administrative Trustee and
the Trustee notice of its election to begin any Extension Period at least one
Business Day prior to the earlier of (i) the date interest on the Securities
would have been payable except for the election to begin such Extension Period
or (ii) the date the Administrative Trustees are required to give notice to DTC
or an applicable self-regulatory organization or to holders of the Preferred
Securities as of the record date or the date Distributions on the Preferred
Securities are payable, but in any event not less than one Business Day prior to
such record date.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Trustee in The City of New
York or at the offices of such Paying Agents or Agents as the Corporation may
designate from time to time outside the United States, in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private indebtedness; provided, however, that at the
option of the Corporation, payment of interest may be made (i) by check mailed
to the address of the Person entitled thereto as such address shall appear in
the Securities Register or (ii) by wire transfer in immediately available funds
at such place and to such account as may be designated in writing at least 15
days prior to the relevant Interest Payment Date by the Person entitled thereto
as specified in the Securities Register.
The indebtedness evidence by this Security is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Debt, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder hereof by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such actions as may be
necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Debt, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly
executed under its corporate seal.
XXXXX NATIONAL CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-----------------------
Xxxxx X. Xxxxxx
Attest:
This Security is one of a duly authorized issue of securities of the
Corporation designated as its 8 5/8% Junior Subordinated Deferrable Interest
Debentures, Series A, Due December 31, 2026 (herein called the "Securities"),
limited in aggregate principal amount to $154,640,000, issued and to be issued
under a Junior Subordinated Indenture, dated as of December 13, 1996 (herein
called the "Indenture"), between the Corporation and The Bank of New York, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Trustee, the Corporation and
the Holders of the Securities, and of the terms upon which the Securities are,
and are to be, authenticated and delivered. This Security is designated on the
face hereof, limited in aggregate principal amount to $154,640,000.
All terms used in this Security that are defined in the Indenture or in the
Amended and Restated Trust Agreement, dated as of December 13, 1996, as amended
(the "Trust Agreement"), for Xxxxx Capital, entered into among XXXXX NATIONAL
CORPORATION, as Depositor, and the Trustees named therein, shall have the
meanings assigned to them in the Indenture or the Trust Agreement, as the case
may be.
The Corporation may, at its option, on or after December 31, 2006, and
subject to the terms and conditions of Article XI of the Indenture, redeem this
Security in whole at any time or in part from time to time, at the following
Redemption Prices (expressed as percentages of the principal amount), plus in
each case accrued interest thereon to the date of redemption. If redeemed during
the twelve-month period indicated,
Redemption Price
----------------
December 31, 2006 to December 31, 2007: 104.313%
December 31, 2007 to December 31, 2008: 103.881%
December 31, 2008 to December 31, 2009: 103.450%
December 31, 2009 to December 31, 2010: 103.019%
December 31, 2010 to December 31, 2011: 102.588%
December 31, 2011 to December 31, 2012: 102.156%
December 31, 2012 to December 31, 2013: 101.725%
December 31, 2013 to December 31, 2014: 101.294%
December 31, 2014 to December 31, 2015: 100.863%
December 31, 2015 to December 31, 2016: 100.431%
On or after December 31, 2016: 100%
At any time prior to December 31, 2006, upon the occurrence and during the
continuation of a Tax Event or Capital Treatment Event in respect of Xxxxx
Capital, the Corporation may, at its option, at any time within 90 days of the
occurrence of such Tax Event or Capital Treatment Event redeem the Securities,
in whole but not in part, subject to the provisions of Section 11.6 and the
other provisions of Article XI of the Indenture, at a redemption price equal to
the Make-Whole Amount plus, in each case, accrued and unpaid interest on the
Securities to the date fixed for redemption.
In the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion thereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Corporation with
certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Corporation and the Trustee at any time to enter into a supplemental indenture
or indentures for the purpose of modifying in any manner the rights and
obligations of the Corporation and of the Holders of the Securities, with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities to be affected by such supplemental indenture. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities at the time Outstanding, on behalf of the
Holders of all Securities, to waive compliance by the Corporation with certain
provisions of the Indenture and certain past defaults under the Indenture and
their
consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, if an Event of
Default with respect to the Securities at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Securities may declare the
principal amount of all the Securities to be due and payable immediately, by a
notice in writing to the Corporation (and to the Trustee if given by Holders),
provided that, so long as the Securities are held by Xxxxx Capital, if upon an
Event of Default, the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities fails to declare the principal of all the
Securities to be immediately due and payable, the holders of at least 25% in
aggregate Liquidation Amount of the Preferred Securities of Xxxxx Capital then
outstanding shall have such right by a notice in writing to the Corporation and
the Trustee; and upon any such declaration the principal amount of and the
accrued interest (including any Additional Interest) on all the Securities shall
become immediately due and payable, provided that the payment of principal and
interest (including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article XII of the Indenture.
No reference herein to the Indenture and no provision of this Security or of
the Indenture shall alter or impair the obligation of the Corporation, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Securities Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Corporation maintained under Section 10.2 of the Indenture duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Corporation and the Securities Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees. No
service charge shall be made for any such registration of transfer or exchange,
but the Corporation may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Corporation, the Trustee and any agent of the Corporation or the Trustee shall
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Corporation, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Securities are issuable only in registered form without coupons in
minimum denominations of $100,000 and any integral multiples of $1,000 in excess
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
The Corporation and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT
OF LAW PRINCIPLES THEREOF.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY
A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY.
This is one of the Securities referred to in the within mentioned Indenture.
Dated: December 13, 0000
Xxx Xxxx xx Xxx Xxxx,
as Trustee
By: /s/ Xxxxx Xxxxxx
----------------------------
Xxxxx Xxxxxx
