INDENTURE

Exhibit 10.48

 

INDENTURE

 

BY AND BETWEEN

 

INDIAN RIVER BANKING COMPANY

 

AND

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

 

AS TRUSTEE

 

FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE

 

INTEREST DEBENTURES DUE NOVEMBER 7, 2032

 

EFFECTIVE AS OF SEPTEMBER 30, 2002

TABLE OF CONTENTS

 

 

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TABLE OF CONTENTS

(continued)

 

 

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TABLE OF CONTENTS

(continued)

 

 

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TABLE OF CONTENTS

(continued)

 

 

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TABLE OF CONTENTS

(continued)

 

 

EXHIBIT

 

 

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INDENTURE

 

THIS INDENTURE, effective as of September 30, 2002, between Indian River Banking Company, a Florida corporation (the “Company”) and Wells Fargo Bank, National Association, a national banking association with its principal place of business in the State of Delaware (the “Trustee”);

 

RECITALS:

 

WHEREAS , for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of securities to be known as Floating Rate Junior Subordinated Deferrable Interest Debentures due November 7, 2032 (hereinafter referred to as the “Debentures”), the form and substance of such Debentures and the terms, provisions and conditions thereof to be set forth as provided in this Indenture;

 

WHEREAS , Indian River Capital Trust I, a Delaware statutory business trust (the “Trust”), has offered in a private placement up to Seven Million Dollars ($7,000,000) aggregate liquidation amount of its Trust Preferred Securities (as defined herein) 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 up to Two Hundred Seventeen Thousand Dollars ($217,000) aggregate liquidation amount of its Common Securities (as defined herein), in up to Seven Million Two Hundred Seventeen Thousand Dollars ($7,217,000) aggregate principal amount of the Debentures;

 

WHEREAS , the Company has requested that the Trustee execute and deliver this Indenture;

 

WHEREAS , all requirements necessary to make this Indenture a valid instrument in accordance with its terms, and to make the Debentures, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company, have been performed, and the execution and delivery of this Indenture have been duly authorized in all respects;

 

WHEREAS , to provide the terms and conditions upon which the Debentures are to be authenticated, issued and delivered, the Company has duly authorized the execution of this Indenture; and

 

WHEREAS , all things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.

NOW, THEREFORE , in consideration of the premises set forth herein and the purchase of the Debentures by the holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit of the holders of the Debentures as follows:

 

ARTICLE I

 

DEFINITIONS

Section 1.1 Definitions of Terms.

 

The terms defined in this Section 1.1 (except as otherwise expressly provided in this Indenture or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.1 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, or that are by reference in the Trust Indenture Act and defined in the Securities Act (except as herein otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned to such terms in the Trust Indenture Act and in the Securities Act as in force at the date of the execution of this instrument and as may be amended from time to time. All accounting terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with Generally Accepted Accounting Principles.

 

“Accelerated Maturity Date” means if the Company elects to accelerate the Maturity Date in accordance with Sections 2.2 (b) and 2.2(c), the date selected by the Company which is prior to the Scheduled Maturity Date, but is on an Interest Payment Date after November 7, 2007.

 

“Additional Interest” means interest earned and to be paid on interest that was not timely paid.

 

“Additional Senior Obligations” means all indebtedness of the Company whether incurred on or prior to the date of this Indenture or thereafter incurred, for claims in respect of derivative products such as interest and foreign exchange rate contracts, commodity contracts and similar arrangements; provided, however, that Additional Senior Obligations does not include claims in respect of Senior Debt or Subordinated Debt or obligations which, by their terms, are expressly stated to be not superior in right of payment to the Debentures or to rank pari passu in right of payment with the Debentures. For purposes of this definition, “claim” shall have the meaning assigned thereto in Section 101(4) of the United States Bankruptcy Code of 1978, as amended.

 

“Additional Sums” shall have the meaning set forth in Section 2.5 (g) hereof.

 

“Administrative Trustees” shall have the meaning set forth in the Trust Agreement.

 

“Affiliate” means, with respect to a specified Person, (i) any Person directly or indirectly owning, controlling or holding with power to vote 10% or more of the outstanding voting securities or other ownership interests of the specified Person; (ii) any Person 10% or more of whose outstanding voting securities or other ownership interests are directly or indirectly owned, controlled or held with power to vote by the specified Person; (iii) any Person directly or indirectly controlling, controlled by, or under common control with the specified Person; (iv) a partnership in which the specified Person is a general partner; (v) any officer or director of the specified Person; and (vi) if the specified Person is an individual, any entity of which the specified Person is an officer, director or general partner.

 

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“Authenticating Agent” means an authenticating agent with respect to the Debentures appointed by the Trustee pursuant to Section 2.12 hereof.

 

“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 or any other duly designated officers of the Company.

 

“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, with respect to the Debentures, any day other than a Saturday or a Sunday or a day on which federal or state banking institutions in Delaware or Minnesota are authorized or required by law, executive order or regulation to close, or a day on which the Corporate Trust Office of the Trustee or the Property Trustee is closed for business.

 

“Calculation Agent” shall have the meaning set forth in Section 2.5(d)(i) hereof.

 

“Capital Treatment Event” means the receipt by the Company and the Trust of an Opinion of Counsel, rendered by a law firm having a recognized national bank regulatory practice, to the effect that, as a result of (a) 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 thereof or therein, or (b) any official or administrative pronouncement or action 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 Trust Preferred Securities under the Trust Agreement, there is more than an insubstantial risk of impairment of the Company’s ability to treat the Trust Preferred Securities (or any substantial portion thereof) as Tier 1 capital (or the then equivalent thereof), for purposes of the capital adequacy guidelines of the Federal Reserve (or any successor thereto), as then in effect and applicable to the Company; provided, however, that the Trust or the Company shall have requested and received such an Opinion of Counsel with regard to such matters within a reasonable period of time after the Trust or the Company shall have become aware of the probable occurrence of any such event.

 

“Certificate” means a certificate signed by the principal executive officer, the principal financial officer, the principal accounting officer, the treasurer or any vice president of the Company. The Certificate need not comply with the provisions of Section 15.7 hereof.

 

“Change in 1940 Act Law” shall have the meaning set forth in the definition of “Investment Company Event.”

 

“Commission” means the Securities and Exchange Commission.

 

“Common Securities” means undivided common beneficial interests in the assets of the Trust that rank pari passu with the Trust Preferred Securities; 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 Trust Preferred Securities.

 

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“Company” means Indian River Banking Company, a corporation duly organized and validly existing under the laws of the State of Florida, and, subject to the provisions of Article XII, shall also include its successors and assigns. “Compounded Interest” shall have the meaning set forth in Section 4.1 hereof.

 

“Corporate Trust Office” means the office of the Trustee or the Property Trustee at which, at any particular time, its corporate trust business shall be principally administered, which office at the date hereof is located at 919 Market Street, Suite 700, Wilmington, Delaware 19801, Attention: Corporate Trust Administration.

 

“Custodian” means any receiver, trustee, assignee, liquidator, or similar official under any Bankruptcy Law.

 

“Debentures” shall have the meaning set forth in the Recitals hereto.

 

“Debentureholder,” “holder of Debentures,” “registered holder,” or other similar term, means the Person or Persons in whose name or names a particular Debenture shall be registered on the books of the Company or the Trustee kept for that purpose in accordance with the terms of this Indenture.

 

“Debenture Register” shall have the meaning set forth in Section 2.7(b) hereof.

 

“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.

 

“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 hereof.

 

“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 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.

 

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“Event of Default” means, with respect to the Debentures, any event specified in Section 7.1, which has continued for the period of time, if any, and after the giving of the notice, if any, therein designated.

 

“Exchange Act,” means the Securities Exchange Act of 1934 or any successor statute thereto, in each case as amended from time to time.

 

“Extended Interest Payment Period” shall have the meaning set forth in Section 4.1 hereof.

 

“Federal Reserve” means the Board of Governors of the Federal Reserve System.

 

“Floating Interest Rate” shall have the meaning set forth in Section 2.5(a) hereof.

 

“Generally Accepted Accounting Principles” means such accounting principles as are generally accepted at the time of any computation required hereunder.

 

“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 depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) 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 depository 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.

 

“Initial Interest Payment Date” means the date of the Initial Purchaser’s transfer of the Trust Preferred Securities.

 

“Initial Interest Payment Period” means the period of time commencing the date of issuance of the Trust Preferred Securities and this Indenture and ending upon the effective date of the transfer of the Trust Preferred Securities by the Initial Purchaser.

 

“Initial Purchaser” shall mean the person that acquires the Trust Preferred Securities upon the original issuance thereof by the Trust.

 

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“Interest Payment Date” has the meaning specified in Section 2.5(a) hereof.

 

“Interest Payment Period” has the meaning specified in Section 2.5(a) hereof.

 

“Interest Reset Date” has the meaning specified in Section 2.5(d) hereof.

 

“Investment Company Act,” means the Investment Company Act of 1940 or any successor statute thereto, in each case as amended from time to time.

 

“Investment Company Event” means the receipt by the Trust and the Company of an Opinion of Counsel, rendered by a law firm having a recognized national securities law practice, to the effect that, as a result of the occurrence of a change in law or regulation or a change in interpretation or application of law or regulation by any legislative body, court, governmental agency or regulatory authority (a “Change in 1940 Act Law”), the Trust is or shall be considered an “investment company” that is required to be registered under the Investment Company Act, which Change in 1940 Act Law becomes effective on or after the date of original issuance of the Trust Preferred Securities under the Trust Agreement; provided, however, that the Trust or the Company shall have requested and received such an Opinion of Counsel with regard to such matters within a reasonable period of time after the Trust or the Company shall have become aware of a Change in 1940 Act Law.

 

“LIBOR” means the London Interbank Offered Rate for U.S. Dollar deposits in Europe as determined by the Calculation Agent according to Section 2.5(d) hereof.

 

“Maturity Date” means the date on which the 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 Interest, if any.

 

“Ministerial Action” shall have the meaning set forth in Section 3.1 hereof.

 

“Officers’ Certificate” means a certificate signed by the Chief Executive Officer, President or a Vice President and by the Treasurer or an Assistant Treasurer 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 independent, outside legal 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 the Debentures, means, subject to the provisions of Section 10.4, as of any particular time, all Debentures theretofore authenticated and delivered by the Trustee under this Indenture, except (i) Debentures theretofore canceled by the Trustee or any Paying Agent, or delivered to the Trustee or any Paying Agent for cancellation or that have previously been canceled; (ii) Debentures or portions thereof for the payment or redemption of which money 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

 

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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 Debentures or portions of such Debentures are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article III or provision satisfactory to the Trustee shall have been made for giving such notice; and (iii) Debentures in lieu of or in substitution for which other Debentures shall have been authenticated and delivered pursuant to the terms of Section 2.7; provided, however, that in determining whether the holders of the requisite percentage of Debentures have given any such request, notice, consent or waiver hereunder, Debentures held by the Company or any Affiliate of the Company shall not be included; provided, further, that the Trustee shall be protected in acting or relying upon any request, notice, consent or waiver unless a Responsible Officer of the Trustee shall have actual knowledge that the holder of any such Debenture is the Company or an Affiliate thereof.

 

“Paying Agent” means any paying agent or co-paying agent appointed pursuant to Section 5.3 hereof.

 

“Person” means any individual, corporation, partnership, trust, limited liability company, joint venture, joint-stock company, unincorporated organization or other entity or government or any agency or political subdivision thereof.

 

“Predecessor Debenture” means every previous Debenture evidencing all or a portion of the same debt as that evidenced by such particular Debenture; and, for the purposes of this definition, any Debenture authenticated and delivered under Section 2.9 in lieu of a lost, destroyed or stolen Debenture shall be deemed to evidence the same debt as the lost, destroyed or stolen Debenture.

 

“Property Trustee” has the meaning set forth in the Trust Agreement.

 

“Resale Restriction Termination Date” means, with respect to the offer, sale or other transfer of a Debenture, (a) the date which is two years (or such shorter period of time as permitted by Rule 144(k) under the Securities Act) after the later of the original issue date of such Debenture and the last date on which the Company or any Affiliate of the Company was the owner of such Debenture (or any predecessor of the Debenture) and (b) such later date, if any, as may be required by applicable laws.

 

“Redemption Date” shall have the meaning set forth in Section 3.2(a) hereof.

 

“Redemption Price” shall have the meaning set forth in Section 3.1 hereof.

 

“Responsible Officer” when used with respect to the Trustee means any officer within the Corporate Trust Office of the Trustee with direct responsibility for the administration of this Indenture, including any vice president, any assistant vice president, any assistant secretary 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 or to whom such corporate trust matter is referred because of that officer’s knowledge of and familiarity with the particular subject.

 

“Scheduled Maturity Date” means November 7, 2032.

 

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“Securities Act,” means the Securities Act of 1933 or any successor statute thereto, in each case as amended from time to time.

 

“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 all Debt, whether incurred on or prior to the date of this Indenture or thereafter incurred, unless, in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is provided that such obligations are not superior in right of payment to the Debentures or to other Debt which is pari passu with, or subordinated to, the Debentures; provided, however, that Senior Debt shall not be deemed to include (i) any Debt of the Company owed 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) Debt which by its terms is subordinated to trade accounts payable or accrued liabilities arising in the ordinary course of business; and (iii) Debt which constitutes Subordinated Debt.

 

“Senior Indebtedness” shall have the meaning set forth in Section 16.1 hereof.

 

“Special Event” means a Tax Event, an Investment Company Event or a Capital Treatment 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 Senior Debt of the Company (other than the Debentures); provided, however, that Subordinated Debt will 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 which by its terms is subordinated to trade accounts payable or accrued liabilities arising in the ordinary course of business; (iii) Debt which constitutes Senior Debt and (iv) any Debt of the Company under debt securities (and guarantees in respect of these debt securities) initially issued to any trust, or a trustee of a trust, partnership or other entity affiliated with the Company that is, directly or indirectly, a financing vehicle of the Company in connection with the issuance by that entity of preferred securities or other securities which are intended to qualify for Tier 1 capital treatment for purposes of the capital adequacy guidelines of the Federal Reserve, as then in effect.

 

“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, limited liability company, 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.

 

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“Tax Event” means the receipt by the Company and the Trust of an Opinion of Counsel, rendered by a law firm having a recognized federal tax law practice, 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 Trust Preferred Securities under the Trust Agreement, there is more than an insubstantial risk that (i) the Trust is, or shall 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 Debentures; (ii) interest payable by the Company on the Debentures is not, or within 90 days after the date of such Opinion of Counsel, shall not be, deductible by the Company, in whole or in part, for United States federal income tax purposes; or (iii) the Trust is, or shall 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; provided, however, that the Trust or the Company shall have requested and received such an Opinion of Counsel with regard to such matters within a reasonable period of time after the Trust or the Company shall have become aware of the occurrence or the possible occurrence of any of the events described in clauses (i) through (iii) above.

 

“Three-Month LIBOR” shall have the meaning set forth in Section 2.5(d) hereof.

 

“Trust” means Indian River Capital Trust I, a Delaware statutory business trust.

 

“Trust Agreement” means the Amended and Restated Trust Agreement, effective as of September 30, 2002, of the Trust, as amended from time to time.

 

“Trust Preferred Securities” means undivided preferred beneficial interests in the assets of the Trust that 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 Trust Preferred Securities.

 

“Trust Preferred Securities Guarantee” means any guarantee that the Company may enter into with the Trustee or other Persons that operates directly or indirectly for the benefit of holders of Trust Preferred Securities.

 

“Trustee” means Wells Fargo Bank, National Association and, subject to the provisions of Article IX, shall also include its successors and assigns in each such Person’s capacity as trustee hereunder, 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 or any successor statute thereto, in each case as amended from time to time.

 

“Trust Securities” means the Common Securities and Trust Preferred Securities, collectively.

 

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“Voting Stock,” as applied to stock of any Person, means shares, interests, participations or other equivalents in the equity interest (however designated) in such Person having ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person, other than shares, interests, participations or other equivalents having such power only by reason of the occurrence of a contingency.

 

ARTICLE II

 

ISSUE, DESCRIPTION, TERMS, CONDITIONS,

REGISTRATION AND EXCHANGE OF THE DEBENTURES

 

Section 2.1 Designation and Principal Amount.

 

There is hereby authorized Debentures designated the “Floating Rate Junior Subordinated Deferrable Interest Debentures due November 7, 2032,” limited in aggregate principal amount to Seven Million Two Hundred Seventeen Thousand Dollars ($7,217,000) which amount shall be as set forth in any written order of the Company for the authentication and delivery of Debentures pursuant to Section 2.6.

 

Section 2.2 Maturity.

 

(a)

The Maturity Date shall be either:

 

(i)

the Scheduled Maturity Date; or

 

(ii)

if the Company elects to accelerate the Maturity Date to be a date prior to the Scheduled Maturity Date in accordance with Sections 2.2(b) and 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 and after November 7, 2007, 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, policies or regulations of the Federal Reserve.

 

(c)       If the Company elects to accelerate the Maturity Date in accordance with Section 2.2(b), the Company shall give notice to the Trustee and the Trust (unless the Property Trustee is not the holder of the Debentures, in which case the Trustee will give notice to the holders of the Debentures) of the acceleration of the Maturity Date and the Accelerated Maturity Date at least 30 days and no more than 180 days before the Accelerated Maturity Date.

 

Section 2.3 Form and Payment.

 

The Debentures shall be issued in certificated form, registered in the name of the holder thereof, without interest coupons. The Debentures, including the Certificate of Authentication, shall be substantially in the form of Exhibit A hereto. Prior to the Resale Restriction Termination Date, the Debentures will be issued and may only be transferred in a minimum

 

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aggregate principal amount of $100,000. Subsequent to the Resale Restriction Termination Date, the Debentures may only be transferred in a minimum aggregate principal amount of $100,000. Any attempted transfer not in accordance with the preceding two sentences shall be void and of no effect whatsoever.

 

Principal and interest on the Debentures issued in certificated form shall be payable, the transfer of such Debentures shall be registrable and such Debentures shall be exchangeable for Debentures bearing identical terms and provisions at or through 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 Debenture Register or by wire transfer to an account maintained by the holder as specified in the Debenture Register, provided that the holder provides proper transfer instructions by the regular record date. Notwithstanding the foregoing, so long as the holder of any Debentures is the Property Trustee, the payment of principal of and interest (including Compounded Interest and Additional Interest, if any) on such Debentures held by the Property Trustee shall be made at such place and to such account as may be designated by the Property Trustee.

 

Section 2.4 Initial Interest Payment Period . During the Initial Interest Payment Period, the Debenture shall accrue interest at the rate of 3.55% per annum over the Three-Month LIBOR Rate (as defined in Section 2.5(d) below). Interest during the Initial Interest Payment Period shall be computed in accordance with Section 2.5(c) of this Indenture and shall be paid upon the Initial Interest Payment Date in the manner set forth in Section 2.3 of this Indenture.

 

Section 2.5 Interest.

 

(a) [Commencing upon the Initial Interest Payment Period, payment on the Debentures shall be payable at a floating rate (the “Floating Interest Rate”) equal to no more than 3.75% over the Three Month LIBOR Rate (the “Rate Premium”). The Rate Premium shall be determined on the Initial Interest Payment Date. Interest shall be calculated at the Floating Interest Rate from the Initial Interest Payment Date 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 Floating Interest Rate, compounded quarterly, payable (subject to the provisions of Section 2.4 and Article IV) quarterly in arrears on February 7, May 7, August 7 and November 7 each year (each such date, an “Interest Payment Date,” and each quarterly period, an “Interest Payment Period”), commencing on day following the date of expiration of the Initial Interest Payment Period to the Person in whose name such Debenture or any Predecessor Debenture is registered, at the close of business on the regular record date for such interest installment, which shall be the 15 ^th of the month of preceding Interest Payment Date. The first Distribution Date shall be on February 7, 2003.

 

(b) The Floating Interest Rate for each Interest Payment Period will be set on the second London business day preceding each Interest Payment Date; provided, that the initial Floating Interest Rate will be set on the second London business day preceding the Initial Interest Payment Date. If the Interest Reset Date is not a Business Day, then such Interest Reset Date shall be the next succeeding day which is a Business Day. In no event shall the Floating Interest Rate exceed 12% prior to November 7, 2007.

 

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(c) The amount of interest payable for the Initial Interest Payment Period and any Interest Payment Period shall be computed on the basis of a 360-day year and the actual number of days in such Initial Interest Payment Period or Interest Payment Period. In the event that any date on which interest is payable on the Debentures is not a Business Day, then payment of interest payable on such date shall be made on the next succeeding day which is a Business Day except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on the date such payment was originally payable.

 

(d) The “Three-Month LIBOR Rate” shall mean the rate determined in accordance with the following provisions:

 

(i)

On the second London Business Day (provided that on such day commercial banks are open for business (including dealings in foreign currency deposits) in London (a “LIBOR Banking Day”) preceding each March 15, June 15, September 15 and November 15 (except with respect to the Initial Interest Payment Period and the Interest Payment Period commencing the day after the Initial Interest Payment Date) (each such date, an “Interest Reset Date”), Wells Fargo Bank, National Association (the “Calculation Agent”), will determine the Three-Month LIBOR Rate which shall be the rate for deposits in the London interbank market in U.S. dollars having a three-month maturity which appears on the Telerate Page 3750 as of 11:00 a.m., London time, on such Interest Reset Date. “Telerate Page 3750” means the display on Page 3750 of the Bloomberg Financial Markets Commodities News (or such other page as may replace that page on that service for the purpose of displaying London interbank offered rates of major banks for U.S. dollar deposits). If the Three-Month LIBOR Rate on such Interest Reset Date does not appear on the Telerate Page 3750, such Three-Month LIBOR Rate will be determined as described in (ii) below. “LIBOR Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banking institutions in New York, New York or Wilmington, Delaware are authorized or obligated by law or executive order to be closed. If such rate is superseded on Telerate Page 3750 by a corrected rate before 12:00 noon (London time) on the same Interest Reset Date, the corrected rate as so substituted will be the applicable LIBOR for that Interest Reset Date.

 

(ii)

If, on any Interest Reset Date, such rate does not appear on Telerate Page 3750 as reported by Bloomberg Financial Markets Commodities News or such other page as may replace such Telerate Page 3750, the Calculation Agent shall determine the arithmetic mean of quotations of the Reference Banks (defined below) to leading banks in the London interbank market for three-month U.S. Dollar deposits in Europe (in an amount determined

 

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by the Calculation Agent by reference to requests for quotations as of approximately 11:00 a.m. (London time) on the Interest Reset Date made by the Calculation Agent to the Reference Banks. If, on any Interest Reset Date, only one or none of the Reference Banks provide such a quotation, LIBOR shall be deemed to be the arithmetic mean of the offered quotations that at least two leading banks in the City of New York (as selected by the Calculation Agent) are quoting on the relevant Interest Reset Date for three-month U.S. Dollar deposits in Europe at approximately 11:00 a.m. (London time) (in an amount determined by the Calculation Agent). As used herein, “Reference Banks” means four major banks in the London interbank market selected by the Calculation Agent.

 

(iii)

If the Calculation Agent is required but is unable to determine a rate in accordance with at least one of the procedures provided above, LIBOR shall be LIBOR in effect on the previous Interest Reset Date (whether or not LIBOR for such period was in fact determined on such Interest Reset Date)

 

(e) The Floating Interest Rate and amount of interest to be paid on the debentures for the Initial Interest Payment Period and each Interest Payment Period will be determined by the Calculation Agent. All calculations made by the Calculation Agent shall, in the absence of manifest error, be conclusive for all purposes and binding on the Company and the holders of this Debenture. In the event that any then acting Calculation Agent shall be unable or unwilling to act, or that such Calculation Agent shall fail duly to establish the Floating Interest Rate for any Interest Payment Period, or that the Company proposes to remove such Calculation Agent, or that the Calculation Agent proposes to terminate its services as Calculation Agent, the Company shall appoint another Person, which is a bank, trust company, investment banking firm or other financial institution, to act as the Calculation Agent. The Trustee shall provide written notice of the Floating Interest Rate as certified by the Calculation Agent to each holder of Debentures as set forth in the Debenture Register no later than five Business Days following each Interest Reset Date.

 

(f) If, at any time while the Trust or the Property Trustee is the holder of any Debentures, the Trust or the Property Trustee is subject to or is required to pay any taxes, duties, assessments or governmental charges of whatever nature (including withholding taxes) imposed by the United States, or any other taxing authority, then, in any case, the Company shall pay as additional amounts (“Additional Sums”) on the Debentures held by the Trust or 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 the withholding or paying of such taxes, duties, assessments or other governmental charges shall be equal to the amounts the Trust and the Property Trustee would have received and retained had no such taxes, duties, assessments or other government charges been imposed.

 

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(h) The Floating Interest Rate will in no event be higher than the maximum rate permitted by the law of the State of Florida, or, if higher, the law of the United States of America.

 

Section 2.6 Execution and Authentications.

 

(a) The Debentures shall be signed on behalf of the Company by its Chief Executive Officer, President or one of its Vice Presidents, under its corporate seal, if any, attested by its Secretary or one of its Assistant Secretaries. Signatures may be in the form of a manual or facsimile signature. The Company may use the facsimile signature of any Person who shall have been a Chief Executive Officer, President or Vice President thereof, or of any Person who shall have been a Secretary or Assistant Secretary thereof, notwithstanding the fact that at the time the Debentures shall be authenticated and delivered or disposed of such Person shall have ceased to be the Chief Executive Officer, President or a Vice President, or the Secretary or an Assistant Secretary, of the Company (and any such signature shall be binding on the Company). The corporate seal of the Company, if any, may be in the form of a facsimile of such seal and may be impressed, affixed, imprinted or otherwise reproduced on the Debentures. The Debentures may contain such notations, legends or endorsements required by law, stock exchange rule or usage. Each Debenture shall be dated the date of its authentication by the Trustee. A Debenture shall not be valid until authenticated manually by an authorized signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive evidence that the Debenture so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this Indenture.

 

(b) At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Debentures executed by the Company to the Trustee for authentication, together with a written order of the Company for the authentication and delivery of such Debentures signed by its Chief Executive Officer, President or any Vice President and its Treasurer or any Assistant Treasurer, and the Trustee in accordance with such written order shall authenticate and deliver such Debentures.

 

(c) In authenticating such Debentures and accepting the additional responsibilities under this Indenture in relation to such Debentures, the Trustee shall be entitled to receive, and (subject to Section 9.1(b)) shall be fully protected in relying upon, an Opinion of Counsel stating that the form and terms thereof have been established in conformity with the provisions of this Indenture.

 

(d) The Trustee shall not be required to authenticate such Debentures if the issue of such Debentures pursuant to this Indenture shall affect the Trustee’s own rights, duties or immunities under the Debentures and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.

 

Section 2.7 Registration of Transfer and Exchange.

 

(a) Subject to Section 2.3, Debentures may be exchanged upon presentation thereof at the office or agency of the Company designated for such purpose in

 

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Wilmington, Delaware or at the office of the Debenture Registrar, for other Debentures and for a like aggregate principal amount in denominations of integral multiples of $1,000, upon payment of a sum sufficient to cover any tax or other governmental charge in relation thereto, all as provided in this Section 2.7. In respect of any Debentures so surrendered for exchange, the Company shall execute, the Trustee, upon written order of the Company, shall authenticate and such office or agency shall deliver in exchange therefore the Debenture or Debentures that the Debentureholder making the exchange shall be entitled to receive, bearing numbers not contemporaneously outstanding.

 

(b) The Company shall keep, or cause to be kept, at its office or agency designated for such purpose in Wilmington, Delaware or at the office of the Debenture Registrar or such other location designated by the Company a register or registers (herein referred to as the “Debenture Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall register the Debentures and the transfers of Debentures as provided in this Article II and which at all reasonable times shall be open for inspection by the Trustee. The registrar for the purpose of registering Debentures and transfer of Debentures as herein provided shall initially be the Trustee and thereafter as may be appointed by the Company as authorized by Board Resolution (the “Debenture Registrar”). Subject to Section 2.3, upon surrender for transfer of any Debenture at the office or agency of the Company designated for such purpose, the Company shall execute, the Trustee, upon written order of the Company, shall authenticate and such office or agency shall deliver in the name of the transferee or transferees a new Debenture or Debentures for a like aggregate principal amount. All Debentures presented or surrendered for exchange or registration of transfer, as provided in this Section 2.7, shall be accompanied (if so required by the Company or the Debenture Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company or the Debenture Registrar, duly executed by the registered holder or by such holder’s duly authorized attorney in writing.

 

(c) Notwithstanding anything herein to the contrary, Debentures may not be transferred except in compliance with the restricted securities legends set forth below, unless otherwise determined by the Company, upon the advice of legal counsel, in accordance with applicable law:

 

THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS. NEITHER THIS DEBENTURE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT) AFTER THE LATER OF (i) THE ORIGINAL ISSUE DATE HEREOF OR (ii) THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS DEBENTURE (OR ANY PREDECESSOR OF THIS DEBENTURE) AND (Y) SUCH LATER DATE,

 

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IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE “RESALE RESTRICTION TERMINATION DATE”), THE HOLDER OF THIS DEBENTURE BY ITS ACCEPTANCE HEREOF AGREES FOR THE BENEFIT OF THE COMPANY TO OFFER, SELL OR OTHERWISE TRANSFER THIS DEBENTURE ONLY (A) TO THE COMPANY OR AN AFFILIATE OF THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS DEBENTURE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A (“RULE 144A”) PROMULGATED UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A, (D) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS DEBENTURE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE, TRANSFER OR OTHER DISPOSITION (i) PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY BY THE HOLDER OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO THE COMPANY TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS DEBENTURE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE AND THE REGISTRAR IN CONNECTION WITH ANY TRANSFER OF THIS DEBENTURE PRIOR TO THE RESALE RESTRICTION TERMINATION DATE. THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE CERTIFICATE OF TRANSFER RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THE CERTIFICATE OF TRANSFER TO THE TRUSTEE AND THE REGISTRAR. THIS LEGEND WILL BE REMOVED UPON REQUEST OF THE HOLDER AFTER THE EARLIER OF (i) THE TRANSFER OF THE DEBENTURE EVIDENCED HEREBY PURSUANT TO CLAUSE (B) ABOVE OR (ii) THE RESALE RESTRICTION TERMINATION DATE. THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS DEBENTURE OF THE RESALE RESTRICTIONS REFERRED TO HEREIN.

 

PRIOR TO THE RESALE RESTRICTION TERMINATION DATE, THIS DEBENTURE MAY BE TRANSFERRED OR EXCHANGED ONLY IN A MINIMUM AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000. ANY

 

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ATTEMPTED TRANSFER OF THIS DEBENTURE IN AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000 PRIOR TO THE RESALE RESTRICTION TERMINATION DATE SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. AFTER SUCH RESALE RESTRICTION TERMINATION DATE, ANY ATTEMPTED TRANSFER OF THIS DEBENTURE IN AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF THIS DEBENTURE FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO RECEIVE INTEREST PAYMENTS ON THIS DEBENTURE, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN THIS DEBENTURE.

 

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

 

(d) No service charge shall be made for any exchange or registration of transfer of Debentures, or issue of new Debentures in case of partial redemption, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge in relation thereto. Other than exchanges pursuant to Section 2.8, the Company shall not be required (i) to issue, exchange or register the transfer of any Debentures during a period beginning at the opening of 15 business days before the day of the mailing of a notice of redemption of less than all the Outstanding Debentures and ending at the close of business on the day of such mailing; nor (ii) to register the transfer of or exchange any Debentures or portions thereof called for redemption.

 

(e) Nothing herein withstanding, the Property Trustee shall not be authorized, other than in the case of Default, to cause the transfer of a Debenture issued hereunder except (i) upon prior consent and authorization by the Administrative Trustees or (ii) upon order of a court of competent jurisdiction.

 

(f) Debentures may only be transferred, in whole or in part, in accordance with the terms and conditions set forth in this Indenture. Any transfer or purported transfer of any Debenture not made in accordance with this Indenture shall be null and void.

 

Section 2.8 Temporary Debentures.

 

Pending the preparation of definitive Debentures, the Company may execute, and the Trustee shall authenticate and deliver, temporary Debentures (printed, lithographed, or typewritten). Such temporary Debentures shall be substantially in the form of the definitive Debentures in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary Debentures, all as may be determined by the Company. Every temporary Debenture shall be executed by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the

 

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definitive Debentures. Without unnecessary delay the Company shall execute and shall furnish definitive Debentures and thereupon any or all temporary Debentures may be surrendered in exchange therefor (without charge to the holders), at the office or agency of the Company designated for that purpose in Wilmington, Delaware or such other office or agency as the Company shall designate for that purpose pursuant to Section 5.2 hereof, and the Trustee shall authenticate, upon written order of the Company, and such office or agency shall deliver in exchange for such temporary Debentures an equal aggregate principal amount of definitive Debentures, unless the Company advises the Trustee to the effect that definitive Debentures need not be authenticated and furnished until further notice from the Company. Until so exchanged, the temporary Debentures shall be entitled to the same benefits under this Indenture as definitive Debentures authenticated and delivered hereunder.

 

Section 2.9 Mutilated, Destroyed, Lost or Stolen Debentures.

 

(a) In case any temporary or definitive Debenture shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next succeeding sentence) shall execute, and upon the Company’s written order and request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Debenture bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Debenture, or in lieu of and in substitution for the Debenture so destroyed, lost, stolen or mutilated. In every case the applicant for a substituted Debenture shall furnish to the Company and the Trustee such security or indemnity as may be required by them to hold each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and the Trustee evidence to their satisfaction of the destruction, loss or theft of the applicant’s Debenture and of the ownership thereof. The Trustee may authenticate any such substituted Debenture and deliver the same upon the written order and request or authorization of the Chief Executive Officer, President or any Vice President and the Treasurer or any Assistant Treasurer of the Company. Upon the issuance of any substituted Debenture, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. In case any Debenture that has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Debenture, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Debenture) if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require to hold them harmless, and, in case of destruction, loss or theft, evidence to the satisfaction of the Company and the Trustee of the destruction, loss or theft of such Debenture and of the ownership thereof.

 

(b) Every replacement Debenture issued pursuant to the provisions of this Section 2.9 shall constitute an additional contractual obligation of the Company whether or not the mutilated, destroyed, lost or stolen Debenture shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Debentures duly issued hereunder. All Debentures shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated,

 

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destroyed, lost or stolen Debentures, and shall preclude (to the extent lawful) any and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.

 

Section 2.10 Cancellation.

 

All Debentures surrendered for the purpose of payment, redemption, exchange or registration of transfer shall, if surrendered to the Company or any Paying Agent, be delivered to the Trustee for cancellation, or, if surrendered to the Trustee, shall be canceled by it, and no Debentures shall be issued in lieu thereof except as expressly required or permitted by any of the provisions of this Indenture. On request of the Company at the time of such surrender, the Trustee shall deliver to the Company canceled Debentures held by the Trustee. In the absence of such request the Trustee may dispose of canceled Debentures in accordance with its standard procedures and deliver a certificate of disposition to the Company. If the Company shall otherwise acquire any of the Debentures, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Debentures unless and until the same are delivered to the Trustee for cancellation.

 

Section 2.11 Benefit of Indenture.

 

Nothing in this Indenture or in the Debentures, express or implied, shall give or be construed to give to any Person, other than the parties hereto and the holders of the Debentures (and, with respect to the provisions of Article XVI, the holders of the Senior Indebtedness) any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto and of the holders of the Debentures (and, with respect to the provisions of Article XVI, the holders of the Senior Indebtedness).

 

Section 2.12 Authentication Agent.

 

(a) So long as any of the Debentures remain Outstanding there may be an Authenticating Agent for any or all such Debentures, and the Trustee shall have the right to appoint such Authenticating Agent. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Debentures issued upon exchange, transfer or partial redemption thereof, and 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. All references in this Indenture to the authentication of Debentures by the Trustee shall be deemed to include authentication by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation that has a combined capital and surplus, as most recently reported or determined by it, sufficient under the laws of any jurisdiction under which it is organized or in which it is doing business to conduct a trust business, and that is otherwise authorized under such laws to conduct such business and is subject to supervision or examination by federal or state authorities. If at any time any Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately.

 

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(b) Any Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time (and upon request by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint an eligible successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if originally named as an Authenticating Agent pursuant hereto.

 

ARTICLE III

 

REDEMPTION OF DEBENTURES

 

Section 3.1 Special Event Redemption.

 

If, prior to November 7, 2007, a Special Event has occurred and is continuing, then, notwithstanding Section 3.2(a) but subject to Section 3.2(b), the Company shall have the right upon not less than 30 days’ nor more than 60 days’ notice to the holders of the Debentures to redeem the Debentures, in whole but not in part, for cash within 180 days following the occurrence of such Special Event (the “180-Day Period”) at a redemption price equal to One Hundred Three Percent (103%) of the principal amount to be redeemed plus any accrued and unpaid interest thereon to the date of such redemption (the “Redemption Price”), provided that if at the time there is available to the Company the opportunity to eliminate, within the 180-Day Period, a Tax Event by taking some ministerial action (a “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 Trustee, the Trust or the holders of the Trust Securities issued by the Trust, the Company shall pursue such Ministerial Action in lieu of redemption. The Redemption Price shall be paid prior to 12:00 noon, New York 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 10:00 a.m., New York time, on the date such Redemption Price is to be paid.

 

Section 3.2 Optional Redemption by Company.

 

(a) Subject to the provisions of Section 3.2(b), except as otherwise may be specified in this Indenture, the Company shall have the right to redeem the Debentures, in whole or in part, from time to time, on any Interest Payment Date after November 7, 2007 (each a “Redemption Date”), at a Redemption Price equal to 100% of the principal amount to be redeemed plus any accrued and unpaid interest thereon to the Redemption Date. Any redemption pursuant to this Section 3.2(a) shall be made upon not less than 30 days’ nor more than 60 days’ notice to the holder of the Debentures, at the Redemption Price. If the Debentures are only partially redeemed pursuant to this Section 3.2, the Debentures shall be redeemed pro rata or by lot or in such other manner as the Trustee shall in good faith deem appropriate and fair in its sole discretion. The Redemption Price shall be paid prior to 12:00 noon, New York time, on the Redemption Date or at such earlier time as the Company determines provided that the Company shall deposit with the Trustee an amount sufficient to pay the Redemption Price by 10:00 a.m., New York time, on the Redemption Date.

 

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(b) Any redemption of Debentures pursuant to Section 3.1 or Section 3.2 shall be subject to the Company obtaining the prior approval of the Federal Reserve, if such approval is then required under the applicable capital guidelines, policies or regulations of the Federal Reserve, and any other required regulatory approvals.

 

(c) If a partial redemption of the Debentures would result in the delisting of the Trust Preferred Securities issued by the Trust from any national securities exchange or other organization on which the Trust Preferred Securities are then listed, if any, the Company shall not be permitted to effect such partial redemption and may only redeem the Debentures in whole.

 

(d) Subject to the provisions of this Section 3.2, the Company shall have the right to redeem Debentures in a principal amount equal to the Liquidation Amount (as defined in the Trust Agreement) of any Trust Preferred Securities purchased and beneficially owned by the Company, plus an additional principal amount of Debentures equal to the Liquidation Amount (as defined in the Trust Agreement) of that number of Common Securities that bears the same proportion to the total number of Common Securities then outstanding as the number of Trust Preferred Securities to be redeemed bears to the total number of Trust Preferred Securities then outstanding. Such Debentures shall be redeemed pursuant to this Section 3.2(d) only in exchange for and upon surrender by the Company to the Property Trustee of the Trust Preferred Securities and a proportionate amount of Common Securities, whereupon the Property Trustee shall cancel the Trust Preferred Securities and Common Securities so surrendered and a Like Amount (as defined in the Trust Agreement) of Debentures shall be extinguished by the Trustee and shall no longer be deemed Outstanding.

 

Section 3.3 Notice of Redemption.

 

In case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the Debentures in accordance with the right reserved so to do, the Company shall, or shall cause the Trustee to upon receipt of at least 45 days’ written notice from the Company (which notice shall, in the event of a partial redemption, include a representation to the effect that such partial redemption will not result in the delisting of the Trust Preferred Securities as described in Section 3.2(c) above), give notice of such redemption to holders of the Debentures to be redeemed by mailing, first class postage prepaid, a notice of such redemption not less than 30 days and not more than 180 days before the date fixed for redemption to such holders at their last addresses as they shall appear upon the Debenture Register unless a shorter period is specified in the Debentures to be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered holder receives the notice. In any case, failure duly to give such notice to the holder of any 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 Debentures. In the case of any redemption of Debentures prior to the expiration of any

 

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restriction on such redemption provided in the terms of such Debentures or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with any such restriction. 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 shall be made at the office or agency of the Company or at the Corporate Trust Office of the Trustee, upon presentation and surrender of such Debentures, that interest accrued to the date fixed for redemption shall be paid as specified in said notice and that from and after said date interest shall cease to accrue. If less than all the Debentures are to be redeemed, the notice to the holders of the Debentures shall specify the particular Debentures to be redeemed. If the Debentures are to be redeemed in part only, the notice 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 Debenture, a new Debenture or Debentures in principal amount equal to the unredeemed portion thereof will be issued to the holder. If less than all the Debentures are to be redeemed, the Company shall give the Trustee at least 45 days’ notice in advance of the date fixed for redemption as to the aggregate principal amount of Debentures to be redeemed, and thereupon the Trustee shall select, pro rata or by lot or in such other manner as it shall in good faith deem appropriate and fair in its sole discretion, the portion or portions (equal to $1,000 or any integral multiple thereof) of the Debentures to be redeemed and shall thereafter promptly notify the Company in writing of the numbers of the Debentures to be redeemed, in whole or in part. The Company may, if and whenever it shall so elect pursuant to the terms hereof, by delivery of instructions signed on its behalf by its Chief Executive Officer, its President or any Vice President, instruct the Trustee or any Paying Agent to call all or any part of the Debentures for redemption and to give notice of redemption in the manner set forth in this Section 3.3, such notice to be in the name of the Company or its own name as the Trustee or such Paying Agent may deem advisable. In any case in which notice of redemption is to be given by the Trustee or any such Paying Agent, the Company shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such Paying Agent, as the case may be, such Debenture 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 3.3.

 

Section 3.4 Payment Upon Redemption.

 

(a) If the giving of notice of redemption shall have been completed as above provided, the Debentures or portions of Debentures to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable Redemption Price, and interest on such Debentures or portions of Debentures shall cease to accrue on and after the date fixed for redemption, unless the Company shall default in the payment of such Redemption Price with respect to any such Debenture or portion thereof. On presentation and surrender of such Debentures on or after the date fixed for redemption at the place of payment specified in the notice, said Debentures shall be paid and redeemed at the Redemption Price (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).

 

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(b) Upon presentation of any Debenture that is to be redeemed in part only, the Company shall execute and the Trustee or the Authenticating Agent, upon written order of the Company, shall authenticate and the office or agency where the Debenture is presented shall deliver to the holder thereof, at the expense of the Company, a new Debenture of authorized denomination in principal amount equal to the unredeemed portion of the Debenture so presented.

 

Section 3.5 No Sinking Fund.

 

The Debentures are not entitled to the benefit of any sinking fund.

 

ARTICLE IV

 

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 Debentures so long as no Event of Default has occurred and is continuing, to defer payments of interest by extending the interest payment period of such 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 or end on a date other than an Interest Payment 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, shall bear interest thereon at the Floating Interest Rate in effect for each period compounded quarterly for each quarter of the Extended Interest Payment Period (“Compounded Interest”). At the end of the Extended Interest Payment Period, the Company shall calculate (and deliver such calculation to the Trustee) and pay all interest accrued and unpaid on the Debentures, including any Additional Interest and Compounded Interest (together, “Deferred Interest”) that shall be payable to the holders of the Debentures in whose names the Debentures are registered in the Debenture 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 so long as no Event of Default has occurred and is continuing, provided that such period together with all such further extensions thereof shall not exceed 20 consecutive quarters, or extend beyond the Maturity Date of the Debentures or end on a date other than an Interest Payment 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.

 

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Section 4.2 Notice of Extension.

 

(a) If the Property Trustee is the only registered holder of the 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 two Business Days before the earlier of (i) the next succeeding date on which Distributions on the Trust Securities issued by the Trust 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 any applicable self-regulatory organization or to holders of the Trust Preferred Securities issued by the Trust.

 

(b) If the Property Trustee is not the only holder of the Debentures at the time the Company selects an Extended Interest Payment Period, the Company shall give the holders of the Debentures and the Trustee written notice of its selection of such Extended Interest Payment Period at least two Business Days before the earlier of (i) the next succeeding Interest Payment Date; or (ii) the date the Company is required to give notice of the record or payment date of such interest payment to any applicable self-regulatory organization, if any, or to holders of the Debentures.

 

(c) The quarter in which any notice is given pursuant to paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the 20 quarters permitted in the maximum Extended Interest Payment Period permitted under Section 4.1.

 

Section 4.3 Limitation on Transactions.

 

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 and be continuing any Event of Default, then

 

(a) the Company shall not, and will not permit any Subsidiary to, declare or pay any dividends on, make any distributions with respect to, or redeem, purchase, acquire or make a liquidation payment with respect to, any of its capital stock (other than (1) dividends or distributions in shares of, or options, warrants or rights to subscribe for or purchase shares of, common stock of the Company or such Subsidiary, (2) any declaration of a dividend in connection with the implementation of a shareholder’s 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, (3) purchases of common stock of the Company related to the issuance of such common stock under any of the Company’s employee benefit plans for its directors, officers or employees, (4) as a result of a reclassification of any class or series of the Company’s capital stock solely into another class or series of the Company’s capital stock, or (5) declarations or payments of dividends or distributions payable by a Subsidiary of the Company to the Company or to any of the Company’s Subsidiaries);

 

(b) the Company shall not, and will not permit any Subsidiary to, make any payment of interest, principal or premium, if any, or repay, repurchase or redeem any debt securities issued by the Company which rank pari passu with or junior to the Debentures;

 

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(c) the Company shall not make any guarantee payments with respect to any guarantee by the Company of the debt securities of any Subsidiary of the Company if such guarantee ranks pari passu with or junior to the Debentures; provided, however, that notwithstanding the foregoing the Company may make payments pursuant to its obligations under the Trust Preferred Securities Guarantee; and

 

(d) the Company shall not redeem, purchase or acquire less than all of the Outstanding Debentures or any of the Trust Preferred Securities.

 

ARTICLE V

 

PARTICULAR COVENANTS OF THE COMPANY

 

Section 5.1 Payment of Principal and Interest.

 

The Company shall duly and punctually pay or cause to be paid the principal of and interest on the Debentures at the time and place and in the manner provided herein.

 

Section 5.2 Maintenance of Agency.

 

So long as any of the Debentures remain Outstanding, the Company shall maintain, or shall cause to be maintained, an office or agency in Wilmington, Delaware, and at such other location or locations as may be designated as provided in this Section 5.2, where (i) Debentures may be presented for payment; (ii) 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 Debentures and this Indenture may be given or served, such designation to continue with respect to such office or agency until the Company shall, by written notice signed by its Chief Executive Officer, President or an Executive 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. In addition to any such office or agency, the Company may from time to time designate one or more offices or agencies outside of Wilmington, Delaware where the Debentures may be presented for registration or transfer and for exchange in the manner provided herein, and the Company may from time to time rescind such designation as the Company may deem desirable or expedient; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain any such office or agency in Wilmington, Delaware for the purposes above mentioned. The Company shall give the Trustee prompt written notice of any such designation or rescission thereof.

 

Section 5.3 Paying Agents.

 

(a) The Trustee shall be the initial Paying Agent. If the Company shall appoint one or more Paying Agents for the Debentures, other than the Trustee, the Company shall 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 5.3:

 

(i)

that it shall hold all sums held by it as such agent for the payment of the principal of or interest on the Debentures (whether such sums have been paid to it by the Company or by any other obligor of such Debentures) in trust for the benefit of the Persons entitled thereto;

 

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(ii)

that it shall give the Trustee notice of any failure by the Company (or by any other obligor of such Debentures) to make any payment of the principal of or interest on the Debentures when the same shall be due and payable;

 

(iii)

that it shall, 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 shall 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 Debentures, it shall on or before each due date of the principal of or interest on such 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 on Debentures until such sums shall be paid to such Persons or otherwise disposed of as herein provided and shall promptly no