INDENTURE

Exhibit 4.a

 

HUBCO, INC.

 

AND

 

SUMMIT BANK

 

as Trustee

 

 

 

 

INDENTURE

 

Dated as of January 14, 1994

 

 

 

 

$25,000,000

 

7.75% Subordinated Debentures

due 2004

 

 

INDENTURE dated as of January 14, 1994 between HUBCO, INC. a New Jersey corporation (the “Company”), and Summit Bank, a New Jersey banking corporation, as trustee (“Trustee”).

 

WHEREAS, the Company has duly authorized the issue of its unsecured debentures to be issued (the “Securities”) up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of this Indenture and to provide, among other things, for the authentication, delivery and administration thereof, the Company has duly authorized the execution and delivery of this Indenture; and

 

WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according to its terms have been done;

 

NOW, THEREFORE:

 

In consideration of the premises and the purchases of the Securities by the holders thereof, the Company and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective holders from time to time of the Securities as follows:

 

1

 

ARTICLE 1

 

DEFINITIONS AND INCORPORATION BY REFERENCE

 

SECTION 1.1 .                                                Definitions.

 

“Accountants’ Certificate” means a certificate from Arthur Andersen & Co. or other independent certified public accountants of national standing.

 

“Affiliate” means, when used with reference to the Company or another Person, any Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, the Company or such other Person, as the case may be.  For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct or cause the direction of management or policies of such Person, directly or indirect}y, whether through the ownership of Voting Stock, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative of the foregoing.

 

“Agent” means any Registrar, Paying Agent, co-registrar, authenticating agent, Securities Custodian or agent for service of notices and demands.

 

“Board of Directors” means the Board of Directors of any Person or any duly authorized committee of such Board of Directors.

 

“Business Day” means any day excluding Saturday, Sunday and any day which is a Legal Holiday.

 

“Capitalized Lease Obligation” means any lease obligation of a Person incurred with respect to any property (whether real, personal or mixed) acquired or leased by such Person and used in its business that is required to be recorded as a capitalized lease in accordance with generally accepted accounting principles.

 

“Capital Stock” means any and all shares, interests, participation rights or other equivalents (however designated) of corporate stock.

 

“Code” shall mean the Internal Revenue Code of 1986, as amended.

 

“Common Stock” means the class of stock, which, at the date of this Indenture, is designated as the Common Stock, without par value, of the Company and stock of any class or classes into which such Common Stock may thereafter be changed or reclassified.

 

“Company” means the party named as such in the first paragraph of this Indenture and, subject to Article 4, its successors.

 

“Corporate Trust Office” means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular time be administered which office is, at the date as of which the Indenture is dated, the address of the Trustee specified in Section 10.2, or such other address as the Trustee may give by notice to the Company.

 

2

 

“Default” means any event or condition which is, or after notice or lapse of time or both would be, an Event of Default.

 

“Depository” means the depository for the Global Security issued hereunder, which shall initially be The Depository Trust Company, and its successor or successors or nominees or any corporation or financial or banking institution which the Company may appoint as a successor Depository pursuant to the terms of Section 2.6.

 

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.

 

“Event of Default” shall have the meaning provided in Section 6.1.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended and in effect from time to time.

 

“Global Security” means the single certificate evidencing in global form the Security or Securities issuable or issued in whole or in part in global form which is substantially in the form of Exhibit A-2 and delivered to the Depository or Securities Custodian.

 

“Guarantee” means, as applied to any obligation, (i) a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner, of any part or all of such obligation or (ii) an agreement, direct or indirect, contingent or otherwise, the practical effect of which is to assure in any way the payment or performance (or payment of damages in the event of non-performance) of any part or all of such obligation, including, without limiting the foregoing, the payment of amounts drawn down by letters of credit.  The amount of a Guarantee shall be deemed to be the maximum amount of the obligation guaranteed for which the guarantor could be held liable under such Guarantee.  “Guaranteed” when used as a verb herein has a corresponding meaning.

 

“Holder” or “Securityholder” means the Person in whose name a Security is registered on the Registrar’s books.

 

“Hudson United Bank” means Hudson United Bank, a New Jersey State chartered commercial bank, and a wholly-owned Subsidiary of the Company.

 

“Indebtedness” means, with respect to any Person, (a) all obligations of such Person for borrowed money (whether or not the recourse of the lender is to the whole of the assets of such Person or only to a portion thereof), (b) all indebtedness of such Person which is evidenced by a note, debenture, bond or other similar instrument, (including, without limitation, Capitalized Lease Obligations) or representing the deferred and unpaid balance of the purchase price of any property or services, (c) all indebtedness of such Person, (including, without limitation, Capitalized Lease Obligations) incurred, assumed or given in an acquisition (whether

 

3

 

by way of purchase, merger or otherwise) of any business, real property or other assets, (d) all obligations of such Person to purchase securities or other property which arise out of or in connection with the sale of the same or substantially similar securities or property (“Repurchase Agreements”), (e) any indebtedness of others described in the preceding clauses (a), (b), (c) and (d) that such Person has Guaranteed or secured by a lien on any asset of such Person or for which it is otherwise liable and (f) any amendment, renewal, extension, deferral, modification, restructuring or refunding of any such indebtedness, obligation or Guarantee.

 

“Indenture” means this Indenture, as amended or supplemented from time to time.

 

“Interest Payment Date” means the interest payment dates specified in paragraph 1 of the forms of Security annexed hereto as Exhibits A-1 and A-2.

 

“Legal Holiday” means any day on which commercial banking institutions in New York or New Jersey are authorized by law or regulation to close.

 

“Lien” means any lien, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any security interest.

 

“Major Bank Subsidiary” means a Subsidiary of the Company that is a bank, as defined in 12 U.S.C. sec. 1813 or any successor law, the assets of which as reported on Schedule RC of its most recent Consolidated Report of Condition and Income that had been filed prior to the date of this Indenture equal or exceed 80% of the assets reported on the most recent Quarterly Report on Form 10-Q that had been filed prior to the date of this Indenture for the consolidated Company.

 

“New Securities” has the meaning set forth in Section 2.2.

 

 “Obligations” means, with respect to any Indebtedness, any principal, premium, interest, penalties, fees and other liabilities payable from time to time and any covenants or conditions to be performed or observed under the documentation governing such Indebtedness.

 

“Officer” of any Person means the Chairman of the Board of Directors, the President, any Senior Vice-President, any Vice-President, the Treasurer, the Secretary or the Controller of such Person.

 

“Officers’ Certificate” means a certificate signed by two Officers or by an Officer and an Assistant Treasurer, Assistant Secretary or Assistant Controller of any Person conforming to the requirements set forth in Sections 10.4 and 10.5 and complying with Section 314 of the TIA.

 

“Opinion of Counsel” means a written opinion signed by legal

 

4

 

counsel who may be an employee of or counsel to the Company and who is reasonably acceptable to the Trustee.  Each such opinion shall comply with Section 314 of the TIA and include the statements set forth in Sections 10.4 and 10.5, if and to the extent required hereby.  For the purpose of rendering an opinion, such counsel may rely as to factual matters upon certificates or other documents furnished by Officers and directors of the Company and upon such other documents as such counsel deems appropriate as a basis of their opinion, copies of which shall be delivered with such opinion.

 

“Paying Agent” shall have the meaning set forth in Section 2.3.

 

“Person” means any individual, corporation, partnership, association, joint venture, trust, entity, unincorporated organization or government or any agency or political subdivision thereof.

 

“Qualified Holder” means at any time, (i) any Initial Purchaser and (ii) a Person, which individually, or collectively with its affiliates or other entities for which the same investment advisor, investment manager, trustee or custodian is acting in connection with the Securities, holds one or more Securities (or beneficial interests therein) representing at least 10% of the aggregate outstanding principal amount of the Securities then outstanding (a “Qualified Group”) and has been designated by a Qualified Group to act as the Qualified Holder.  A Qualified Holder shall be entitled to be recognized as such upon the filing of a certificate (which may be in the form of an ombudsman certificate) with the Company and the Trustee, identifying the Qualified Holder and, if applicable, the members of the Qualified Group.

 

“Record Date” means, with respect to any Interest Payment Date, the Business Day fifteen days prior to an Interest Payment Date.

 

“Registrar” shall have the meaning set forth in Section 2.3.

 

“Registration Rights Agreement” shall have the meaning set forth in Section 2.2.

 

“Repurchase Agreement” shall have the meaning set forth in the definition of “Indebtedness.”

 

“Restricted Securities” mean “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act.

 

“SEC” means the Securities and Exchange Commission.

 

“Securities” means the 7.75% Subordinated Debentures due 2004 of the Company issued pursuant to this Indenture and, from and after the consummation of the Registered Exchange Offer, any New Securities issued in exchange therefor pursuant to Section 2.2.

 

“Securities Act” means the Securities Act of 1933, as amended and in effect from time to time.

 

5

 

“Securities Custodian” means Chemical Bank the custodian for the Depository under an existing contractual relationship between the Depository and the Securities Custodian which will hold the Global Security which is issued hereunder, and any successor entity thereto.

 

“Senior Indebtedness” means any and all Indebtedness of the Company, whether outstanding on the date of this Indenture as originally executed or thereafter created or incurred, except any particular Indebtedness, for which the instrument creating or evidencing the same or pursuant to which the same is outstanding expressly provides that such Indebtedness shall be subordinate or shall rank pari passu in right of payment to the Securities.

 

“Significant Subsidiary or Subsidiaries” means as of any date any Subsidiary which singly, or one or more Subsidiaries which in the aggregate, would be a “significant subsidiary” on such date as defined in Rule 1-02 of Regulation S-X under the Securities Act and the Exchange Act.

 

“Subsidiary” means, with respect to the Company, any corporation, bank, association, partnership or other business entity of which more than 50% of the Voting Stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of directors, officers or trustees thereof or other persons performing similar functions is at the time owned in the aggregate, directly or indirectly, by the Company and its Subsidiaries.

 

“TIA” means the Trust Indenture Act of 1939 (15 U.S. Code sec.77aaa-77bbbb), as amended and in effect at the date as of which this Indenture was originally executed or, if this Indenture is qualified under the TIA, from and after the date of such qualification, the TIA as in effect at the date of such qualification, except in either case as provided in Section 8.3.

 

“Trustee” means the party named as such above until a successor replaces it pursuant to this Indenture and thereafter means such successor.

 

“Trust Officer”, when used with respect to the Trustee, means any officer assigned by the Trustee to administer the corporate trust business of the Trustee, including without limitation any vice president, any assistant vice president, any assistant secretary or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers, who shall, in any case, be responsible for the administration of this document, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.

 

“U.S. Government Obligations” means direct or indirect obligations of the United States of America or an agency of the United States of America for the payment of which the full faith and credit of the United States of America is pledged.

 

6

 

“Voting Stock” means Capital Stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of Capital Stock has such voting power by reason of any contingency.

 

SECTION 1.2 .                                                Incorporation by Reference of Trust Indenture Act.

 

Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture, whether or not this Indenture is qualified under the TIA.

 

The following TIA terms used in this Indenture have the following meanings:

 

“indenture securities” means the Securities;

 

“indenture security holder” means a Holder or a Securityholder;

 

“indenture to be qualified” means this Indenture;

 

“indenture trustee” or “institutional trustee” means the Trustee; and

 

“obligor” on the Securities means the Company.

 

All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein have the meanings so assigned to them therein.

 

SECTION 1.3 .                        Rules of Construction.

 

Unless the context otherwise requires:

 

(i)                                      a term has the meaning assigned to it;

 

(ii)                                   an accounting term not otherwise defined shall be interpreted in accordance with generally accepted accounting principles;

 

(iii)                                references to “generally accepted accounting principles” shall mean generally accepted accounting principles in effect in the United States as at the time of any computation;

 

(iv)                               “or” is not exclusive;

 

(v)                                  words in the singular include the plural, and in the plural include the singular;

 

(vi)                               provisions apply to successive events and transactions; and

 

(vii)                            the words “herein”, “hereof” and

 

7

 

“hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.

 

ARTICLE 2

 

THE SECURITIES

 

SECTION 2.1 .                      Form and Dating.

 

The definitive Securities and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A-1, which is part of this Indenture.  The Securities may have notations, legends or endorsements required by law, stock exchange rule or usage, which shall be provided in writing by the Company to the Trustee.  Each Security shall be dated the date of its authentication.

 

The terms and provisions contained in the Securities shall constitute, and are hereby expressly made, a part of this Indenture.  To the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.

 

The Securities will initially be issued in global form, substantially in the form of Exhibit A-2.  Such Global Security shall represent such of the outstanding Securities as shall be specified therein and shall provide that it shall represent the aggregate amount of outstanding Securities from time to time endorsed thereon and that the aggregate amount of outstanding Securities represented thereby may from time to time be reduced to reflect exchanges.  Any endorsement of a Security in global form to reflect the amount of any increase or decrease in the amount of outstanding Securities represented thereby shall be made by the Trustee or the Securities Custodian, at the direction of the Trustee, in such manner and upon instructions given by the holder thereof.

 

Payment of principal of and any interest on any Security in global form shall be made to the holder thereof.

 

SECTION 2.2 .                        Execution and Authentication.

 

Two Officers shall sign the Securities for the Company by manual or facsimile signature.  The Company’s seal shall be reproduced on the Securities and may be in facsimile form.

 

If an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.

 

A Security shall not be valid until executed on behalf of the Company and authenticated by the manual signature of the Trustee, if upon original issuance, or manual signature of the Trustee or an authenticating agent appointed pursuant to this

 

8

 

Section 2.2 if other than upon original issuance.  The signature of the Trustee or of an authenticating agent shall be conclusive evidence that the Security has been authenticated under this Indenture.

 

The Trustee shall authenticate Securities for original issue in the aggregate principal amount of not more than $25,000,000 pursuant to a written order of the Company signed by two Officers directing the Trustee to authenticate the Securities. The order shall specify the amount of Securities to be authenticated, the rate of interest to be paid and the date upon which the original issue of Securities is to be authenticated.  The aggregate principal amount of Securities outstanding at any time may not exceed $25,000,000, except as provided in Section 2.8.

 

On or immediately after the consummation of a registered exchange offer (“Registered Exchange Offer”) pursuant to the Registration Rights Agreement by and among the Company and each of the purchasers identified on Schedule I thereto (the “Initial Purchasers”) dated as of January 14, 1994 (as amended and in effect from time to time, the “Registration Rights Agreement”), the Trustee shall authenticate new securities (“New Securities”) for original issue in the aggregate principal amount of not more than $25,000,000, less the principal amount of any Securities which are not surrendered in the Registered Exchange Offer, pursuant to a written order of the Company signed by two Officers directing the Trustee to authenticate the New Securities.  The New Securities shall be identical in all material respects to the Securities except that the New Securities will be registered under the Securities Act, shall not bear the transfer restrictions set forth on the face of the form of Securities and shall not contain the interest rate step-up provision set forth in paragraph 18 of the Securities.  The order to the Trustee shall specify the amount of New Securities to be authenticated, the rate of interest to be paid and the date upon which the original issue of New Securities pursuant to the Registered Exchange Offer is to be authenticated and shall further provide instructions concerning registration, amounts for each Holder and delivery.  The aggregate principal amount of New Securities outstanding at any time may not exceed $25,000,000, less the aggregate principal amount of Securities outstanding, if any, except as provided in Section 2.8.

 

The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities.  Unless limited by the terms of such appointment, an authenticating agent may authenticate Securities whenever the Trustee may do so.  An authenticating agent may authenticate Securities on behalf of the Trustee, except upon original issuance and pursuant to Section 2.7. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.  An authenticating agent has the same rights as an Agent to deal with the Company, a Subsidiary or an Affiliate of the Company.

 

The Securities shall be issuable without coupons and only in denominations of $100,000 and integral multiples thereof.

 

9

 

SECTION 2.3 .                        Registrar and Paying Agent.

 

The Company shall maintain an office or agency in the State of New Jersey or the City of New York, New York where Securities may be presented for registration of transfer or for exchange (“Registrar”), an office or agency where Securities may be presented for payment (“Paying Agent”) and an office or agency where notices or demands to or upon the Company in respect of the Securities and the Indenture may be served.  The Registrar shall keep a register of the Securities and of their transfer and exchange.  The Company may appoint one or more co-registrars and one or more additional paying agents.  The term “Registrar” includes any co-registrars appointed by the Company.  The term “Paying Agent” includes any additional Paying Agent.  If any of the Securities are Restricted Securities and any of the Securities are Global Securities, the Company shall appoint a Registrar or a co- registrar that shall be a member of or otherwise participate in the Depository’s program for registering transfers of Restricted Securities.  Such Registrar or co-registrar shall also be eligible to serve as a Securities Custodian.  So long as any Securities are Restricted Securities and any Securities are in global form, Security holders shall effect the exchange, transfer and registration of Securities through the Registrar or co-registrar meeting the requirements of the preceding two sentences.  The Company may change any Paying Agent, Registrar or co-registrar and shall provide notice of any such change to any Securityholder.

 

The Company shall enter into an appropriate agency agreement with any Agent not a party to this Indenture.  Such agreement shall implement and comply with the provisions of this Indenture that relate to such Agent.  The Company shall give prompt written notice to the Trustee of the name and address of any Agent who is not a party to this Indenture.  If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such.  The Company, any Subsidiary or any of their Affiliates may act as Paying Agent, Registrar or co-registrar.

 

The Company initially appoints the Depository Trust Company to act as depository with respect to the Global Security, and appoints the Trustee as Registrar and Paying Agent and agent for service of notices and demands.  The Company initially appoints Chemical Bank as co-registrar and Securities Custodian.

 

SECTION 2.4 .                        Paying Agent to Hold Money in Trust.

 

On or prior to the due date of principal of, premium, if any, and interest on any Securities, the Company shall deposit with the Paying Agent money sufficient to pay such principal, premium, if any, and interest so becoming due.  The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of Securityholders or the Trustee on behalf of the Securityholders all money held by the Paying Agent for the payment of principal of, premium, if any, and interest on the Securities (whether such money has been paid to it by the Company or any other obligor on the Securities) and shall notify the Trustee in writing of any failure by the Company (or any other obligor on the Securities) in making

 

10

 

any such payment.  While any such failure continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed.  The Company at any time may require a Paying Agent to pay all money held by it to the Trustee.  Upon payment over to the Trustee, the Paying Agent (if other than the Company) shall have no further liability for the money so paid over to the Trustee.  If the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Securityholders all money held by it as Paying Agent.

 

SECTION 2.5 .                        Securityholder Lists.

 

The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders.  If (i) the Trustee is not the Registrar, the Company shall, or (ii) if there is a co-registrar, the co-registrar shall, furnish to the Trustee fifteen days prior to each Interest Payment Date for the Securities and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require, containing all of the information in the possession or control of the Registrar, the Company or any of its Paying Agents other than the Trustee, as to the names and addresses of Securityholders, and the Company shall otherwise comply with TIA sec. 312(a).

 

SECTION 2.6 .                        Registration of Transfer and Exchange.

 

(a)          The transfer and exchange of Securities in global form shall be effected through the Depository, in accordance with this Indenture (including the restrictions on transfer set forth herein) and the procedures of the Depository therefor.

 

When definitive Securities are presented to the Registrar or a co-registrar with a request to register their transfer or to exchange such definitive securities for an equal aggregate principal amount of definitive Securities of other authorized denominations, the Registrar or co-Registrar shall register the transfer or make the exchange if the requirements for such transaction are met; provided that a definitive Security presented or surrendered for registration of transfer or exchange for another Security (i) shall be duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Registrar or such co-registrar duly executed by the Holder thereof or his attorney duly authorized in writing and (ii) shall be accompanied by a duly completed certificate of the transferor in substantially the form of Exhibit B hereto and, to the extent specified therein, an opinion of counsel to the effect set forth therein; and, provided further, that, in the case of a transfer pursuant to an exemption from registration in accordance with Rule 144, Rule 145 or Regulation S under the Securities Act, or in reliance on another exemption from the registration requirements of the Securities Act (other than an exemption under Rule 144A under the Securities Act), such transfer shall be effected by the delivery of definitive Securities registered in the name of the transferee (or its nominee) in the books maintained by the Registrar of the Securities.

 

11

 

The registration of any definitive Security upon transfer or exchange shall be effective only after the surrender of the definitive Security and the issuance by the Company and authentication by the Trustee or the authenticating agent of a replacement Security.  To permit registrations of transfer and exchanges, the Company shall issue and the Trustee or the authenticating agent shall authenticate Securities at the Registrar’s request.  The Company will not make any service charge for any registration of transfer or exchange but may require payment by the party requesting such registration of transfer or exchange of a sum sufficient to cover any tax or other governmental charge in connection therewith.

 

All definitive Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

 

(b)          Except as permitted by the following paragraph or until such time as the same is no longer required under the applicable requirements of the Securities Act or applicable state securities laws, each certificate evidencing the Securities in global form and the definitive Securities (and all securities issued in exchange therefor or substitution thereof) shall bear a legend in substantially the following form:

 

“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY OTHER APPLICABLE SECURITIES LAW.  THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF HUBCO, INC. (THE “COMPANY”) THAT THIS SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) TO THE COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON WHOM 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) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT IN A TRANSACTION COMPLYING WITH REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144 (IF AVAILABLE) OR RULE 145 UNDER THE SECURITIES ACT, (5) IN RELIANCE ON ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND SUBJECT IN THE CASE OF EACH OF CLAUSES (2), (3), (4), (5) AND (6) ABOVE TO THE RECEIPT BY THE REGISTRAR OR CO-REGISTRAR OF A CERTIFICATION OF THE TRANSFEROR TO SUCH EFFECT AND IN THE CASE OF EACH OF CLAUSES (3), (4) AND (5) ABOVE TO THE DELIVERY TO THE TRANSFEREE OF DEFINITIVE SECURITIES REGISTERED IN ITS NAME (OR ITS NOMINEE’S NAME)  ON THE BOOKS MAINTAINED BY THE REGISTRAR, AND IN THE CASE OF CLAUSE (5) ABOVE TO RECEIPT OF AN OPINION (IN SUBSTANTIALLY

 

12

 

THE FORM OF EXHIBIT C TO THE INDENTURE REFERRED TO BELOW OR OTHERWISE SATISFACTORY TO THE COMPANY AND THE REGISTRAR) OF COUNSEL EXPERIENCED IN SECURITIES MATTERS (WHICH COUNSEL MAY BE AN EMPLOYEE OF THE TRANSFEROR) TO THE EFFECT THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, AND IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS IN ANY APPLICABLE STATE OF THE UNITED STATES.”

 

The transfer and exchange of Securities may be made in global form only if such Security is being transferred to a qualified institutional buyer (as defined in Rule 144A under the Securities Act) in accordance with Rule 144A under the Securities Act.

 

(c)           Any Securities which are presented to the Registrar for exchange pursuant to a Registered Exchange Offer shall be exchanged for New Securities of equal aggregate principal amount upon surrender to the Registrar of the Securities to be exchanged; provided, however, that the Securities so surrendered for exchange shall be duly endorsed and accompanied by a transmittal letter or written instrument of transfer in form satisfactory to the Company, the Trustee and the Registrar duly executed by the Holder thereof or his attorney who shall be duly authorized in writing to execute such document.  Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver to the Registrar the same aggregate principal amount of New Securities as Securities that have been surrendered.

 

(d)          Notwithstanding any other provisions of this Indenture (other than the provisions set forth in part (e) of this Section 2.6), a Security in global form may not be transferred as a whole except 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 or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.

 

(e)           If at any time the Depository for the Securities notifies the Company that it is unwilling or unable to continue as Depository for the Securities, the Company may appoint a successor Depository with respect to the Securities.  If a successor Depository for the Securities is not appointed by the Company within 90 days after the Company receives such notice, the Company will execute, and the Trustee, upon receipt of an officers’ certificate for the authentication and delivery of definitive Securities, will authenticate and deliver, Securities in definitive form, in an aggregate principal amount equal to the aggregate principal amount of the Securities in global form, in exchange for such Securities in global form.

 

The Company may at any time and in its sole discretion determine that the Securities issued in the form of global Securities shall no longer be represented by such global Securities.  In such event the Company will execute, and the Trustee, upon receipt of an Officers’ Certificate for the authentication and delivery of definitive Securities, will authenticate and deliver, Securities in definitive form, in an

 

13

 

aggregate principal amount equal to the aggregate principal amount of the Securities in global form, in exchange for such Securities in global form.

 

If a definitive Security is issued in exchange for any portion of the Global Security after the close of business at the office or agency where such exchange occurs on any Record Date and before the opening of business at such office or agency on the next succeeding Interest Payment Date, interest will not be payable on such Interest Payment Date in respect of such definitive Security, but will be payable on such Interest Payment Date only to the Person to whom interest in respect of such portion of such Global Security is payable in accordance with the provisions of this Indenture.

 

Definitive Securities issued in exchange for an interest in a Global Security pursuant to this Section 2.6 shall be registered in such names and in such authorized denominations as the Depository, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Registrar. The Registrar shall deliver such definitive Securities to the Persons in whose names such Securities are so registered.

 

(f)             Any Person having a beneficial interest in the Global Security upon request and upon satisfaction of the requirements set forth below, may exchange or transfer in whole or in part as provided herein its interest in the Global Security for one or more definitive Securities.  Upon receipt by the Registrar of (i) written or electronic instructions from the Depository or its nominee on behalf of any Person having a beneficial interest in the Global Security and (ii) a written order of such Person containing registration instructions accompanied by a certificate of such Person in substantially the form of Exhibit B hereto and, to the extent specified therein, an opinion of counsel to the effect set forth therein, the Registrar or the Securities Custodian, at the direction of the Registrar, will cause, in accordance with the standing instructions and procedures existing between the Depository and the Securities Custodian, the aggregate principal amount of the Securities in global form to be reduced and, following such reduction, the Company will execute and, upon receipt of an authentication order in the form of an Officers’ Certificate, the Trustee will authenticate and deliver to such Person or the transferee, as the case may be, a definitive Security.

 

Any holder of a definitive Security may, upon satisfaction of the requirements set forth below, as provided herein, exchange or transfer in whole or in part such definitive Security for an interest in the Global Security.  Upon receipt by the Registrar of a definitive Security, duly endorsed or accompanied by appropriate instruments of transfer, in form satisfactory to the Registrar together with (a) certification, substantially in the form of Exhibit B hereto, that such definitive Security is being registered or transferred to a qualified institutional buyer (as defined in Rule 144A under the Securities Act) in accordance with Rule 144A under the Securities Act, and (b) written instructions directing the Registrar to make, or to direct

 

14

 

the Securities Custodian to make, an endorsement on the Security in global form to reflect an increase in the aggregate principal amount of the Securities represented by the Security in global form, the Registrar shall cancel such definitive Security and cause, or direct the Securities Custodian to cause, in accordance with the standing instructions and procedures existing between the Depository and the Securities Custodian, the aggregate principal amount of Securities represented by the Security in global form to be increased accordingly.

 

(g)          At such time as all interests in the Global Security have either been exchanged for definitive Securities, converted, repurchased or canceled, such Global Security shall be canceled by the Registrar.  At any time prior to such cancellation, if any interest in the Global Security is exchanged for definitive Securities, redeemed, converted, repurchased or canceled, the principal amount of Securities represented by such Security in global form shall be reduced and an endorsement shall be made on such Security in global form, by the Registrar or the Securities Custodian, at the direction of the Registrar, to reflect such reduction.

 

SECTION 2.7 .                        Replacement Securities.

 

If a mutilated Security is surrendered to the Trustee or if the Holder of a Security claims that the Security has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee, at the Company’s request, shall authenticate and deliver, a replacement Security if the requirements of the Trustee and the Company are met, provided that the Trustee shall not be required to authenticate or replace any such Security which has been called for redemption in accordance with the terms thereof.  If required by the Trustee or the Company, an indemnity bond must be sufficient in the judgment of each of the foregoing to protect the Company, the Trustee, any Agent or any authenticating agent from any loss which any of them may suffer if a Security is replaced.  The Company may charge the Securityholder who has lost a Security for its expenses in replacing a Security.

 

Every replacement Security is an obligation of the Company and shall be entitled to the benefits of this Indenture.

 

SECTION 2.8 .                        Outstanding Securities.

 

The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation and those reductions in the interests in the Global Security effected by the Trustee hereunder and those described in this Section as not outstanding.

 

If a Security is replaced pursuant to Section 2.7, it ceases to be outstanding and interest ceases to accrue unless the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser.

 

If all principal of, premium, if any, and any interest on any of the Securities are considered paid under Section 3.1, such

 

15

 

Securities shall cease to be outstanding and interest on them shall cease to accrue.

 

Subject to Section 2.9, a security does not cease to be outstanding because the Company, a Subsidiary or an Affiliate holds such Security.

 

SECTION 2.9 .                        Treasury Securities.

 

In determining whether the Holders of the required aggregate principal amount of Securities have concurred in any direction, waiver, amendment or consent, Securities owned by the Company, a Subsidiary or an Affiliate of the Company shall be considered as though they are not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Securities which the Trustee knows are so owned shall be so disregarded. Securities owned by the Company, a Subsidiary or an Affiliate of the Company which have been pledged in good faith may be regarded as outstanding if the Trustee receives an Officer’s Certificate stating that said Securities have been so pledged, that the pledgee is entitled to vote with respect to such Securities and that the pledgee is not the Company or any other obligor on the Securities, a Subsidiary or an Affiliate of the Company, a Subsidiary or such other obligor.

 

SECTION 2.10 .                  Temporary Securities.

 

Until definitive Securities are ready for delivery, the Company may prepare and execute and the Trustee shall authenticate temporary Securities.  Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company (with the concurrence of the Trustee) considers appropriate for temporary Securities.  Each temporary Security shall be executed by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon receipt of a written order of the Company signed by two officers, shall authenticate definitive Securities in exchange for temporary Securities.  Until such exchange, temporary Securities shall be entitled to the same rights, benefits and privileges as definitive Securities.

 

SECTION 2.11 .                  Cancellation.

 

The Company at any time may deliver Securities to the Trustee for cancellation.  The Registrar and Paying Agent shall forward to the Trustee any Securities surrendered to them for redemption, registration of transfer, exchange or payment.  The Trustee shall cancel all Securities surrendered for redemption, registration of transfer, exchange, payment, replacement or cancellation and shall destroy canceled Securities.  The Company may not issue new Securities to replace Securities that it has paid or that have been delivered to the Trustee for cancellation, except as expressly permitted by any of the provisions of this Indenture.

 

16

 

All canceled Securities held by the Trustee shall be destroyed and certification of their destruction delivered to the Company.

 

SECTION 2.12 .                  CUSIP Numbers.

 

The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and the Trustee shall use CUSIP numbers (if such have been obtained) in notices of exchange as a convenience to Holders; provided that any such notice shall state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of exchange and that reliance may be placed only on the other identification numbers printed on the Securities.

 

SECTION 2.13 .                  Defaulted and Additional Interest.

 

(a)          If the Company fails to make a payment of interest on the Securities, it shall pay such interest plus, to the extent lawful, interest on the defaulted interest at the same rate of interest specified in the Securities, to the Persons who are Securityholders on a subsequent special record date.  The Company shall fix the special record date and payment date in a manner reasonably satisfactory to the Trustee.  The payment date shall be no less than 15 days after such record date.  At least 15 days before the special record date, the Company shall mail to Securityholders a notice that states the special record date, payment date and amount of such interest to be paid.

 

(b)         As provided in the Registration Rights Agreement, the Company is obligated on or prior to a date (the “Additional Interest Date”) that is 180 days after the date of issuance of the Securities (the “Closing Date”) (i) to file and cause to become effective with the SEC a registration statement on an appropriate form (the “Exchange Registration Statement”) with respect to a proposed offer (the “Registered Exchange Offer”) to the holders of the Securities, and (ii) to commence the Registered Exchange Offer and cause the same to remain open for a period of not less than the period required under applicable Federal and state law, to provide the Securityholders the opportunity to exchange any and all of the Securities for a like aggregate principal amount of debt securities of the Company that are substantially identical to the Securities. If the Exchange Registration Statement shall not have been filed and become effective and the Registered Exchange Offer commenced on or before the Additional Interest Date, then on that date and thereafter interest on the Securities shall be increased by one percent (1.00%) per annum.  Such additional interest shall cease to accrue on the date on which the Exchange Registration Statement is filed and declared effective and a Registered Exchange Offer commenced or, in certain circumstances, a shelf registration statement is filed and has been declared effective pursuant to the Registration Rights Agreement.  This description of the Registration Rights Agreement is only a summary and is qualified in its entirety by reference to the detailed provisions in the Registration Rights Agreement.

 

17

 

(c)           The Trustee, pursuant to Section 6.2(b), shall be under no obligation to pay the additional interest provided for in paragraph (b) of this Section 2.13 unless it shall have received an Officers’ Certificate directing the Trustee to pay such additional interest in accordance with the terms of Section 2.13(b).  The Trustee shall be entitled to rely on such Officers’ Certificate until it shall have received an Officers’ Certificate to the effect that the Company is no longer required to pay such additional interest pursuant to the Registration Rights Agreement.

 

ARTICLE 3

 

COVENANTS

 

SECTION 3.1 .                        Payment of Securities.

 

The Company shall pay the principal of, premium, if any, and interest on the Securities on the dates and in the manner provided in the Securities and in this Indenture.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN ANY OTHER DOCUMENT RELATING TO THE SECURITIES, THE SECURITIES WILL BEAR INTEREST FROM JANUARY 14, 1994, PAYABLE SEMIANNUALLY ON JANUARY 15 AND JULY 15 OF EACH YEAR COMMENCING JULY 15, 1994.  The Securities mature on January 15, 2004.  An installment of principal, premium, if any, or interest shall be considered paid on the date it is due if the Trustee or Paying Agent (other than the Company, a Subsidiary or an Affiliate) holds on that date money designated for and sufficient to pay such installment if payment thereof is not then prohibited by Article 9.

 

The Company shall pay interest (including interest that accrues after or would accrue but for the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of the Company to the extent that such interest is an allowed claim enforceable against the debtor in a bankruptcy case under Title 11 of the U.S. Code) on overdue principal at the rate then borne by the Securities; it shall pay interest (including interest that accrues after or would accrue but for the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of the Company to the extent that such interest is an allowed claim enforceable against the debtor in a bankruptcy case under Title 11 of the U.S. Code) on overdue premium, if any, and installments of interest at the same rate to the extent legally permitted.

 

SECTION 3.2 .                        Maintenance and Office or Agency.

 

The Company shall designate in the State of New Jersey, or in the city of New York, New York, an office or agency (which may be an office of the Trustee, Registrar or co-registrar) where at all times the Securities may be surrendered for registration of transfer or exchange and where at all times the notices and demands to or upon the Company in respect of the Securities and this Indenture may be served and where the Securities may be presented for payment.  The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.  If at any time the Company shall fail so to designate any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations,

 

18

 

surrenders, notices and demands may be made or served at the address of the Trustee set forth in Section 10.2.

 

The Company may also designate from time to time one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided that no such designation or rescission shall in any manner relieve the Company of its obligation so to designate as aforesaid an office or agency in the State of New Jersey, or in the city of New York, New York, for such purposes.  The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

 

The Company hereby designates the Trustee’s Corporate Trust Office in Summit, New Jersey, as one such office or agency of the Company in accordance with Section 2.3.

 

SECTION 3.3 .                        Maintenance and Inspection of Books and Records.

 

The Company will keep, and will cause each Subsidiary to keep, proper books of record and account in which full, true and correct entries shall be made of all dealings and transactions in relation to its business and activities; and will permit and will cause each Subsidiary to permit, each Qualified Holder (or its representative) at such Qualified Holder’s expense to visit and inspect any of their respective properties, to examine and make abstracts from their respective books of account and other records, and to discuss their respective affairs, finances and accounts with their respective officers and independent public accountants, all for such reasonable purposes and at such reasonable times as such Person shall request in writing to the Company and as often as any such Person may reasonably request.  The right of inspection under this Section 3.3 shall not include the right to materials, or information or data: (i) which the Company may not, in the opinion of counsel for the Company, disclose pursuant to confidentiality restrictions under applicable law, regulation or contract; or (ii) with respect to which such inspection or disclosure would likely, in the opinion of counsel for the Company, cause the loss of an attorney/client privilege.

 

SECTION 3.4 .                        Corporate Existence.

 

Subject to Article 4, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and that of each Subsidiary and the rights (charter and statutory) and corporate franchises of the Company and its Subsidiaries; provided that the Company shall not be required to preserve any such existence (except of the Company), right or franchise if the Board of Directors of the Company, or of the Subsidiary concerned, shall determine that the preservation thereof is no longer desirable or necessary in the conduct of the business as presently conducted of the Company or such Subsidiary and that the loss thereof is not adverse in any material respect to the Holders or to the business, financial prospects, results of operations or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole.

 

19

 

SECTION 3.5 .                        Compliance with Laws.

 

The Company is a duly registered bank holding company under the Bank Holding Company Act of 1956, as amended.  The Company and each of its Subsidiaries possess all material authorizations, approvals, orders, licenses, franchises, certificates and permits of and from all foreign and domestic governmental regulatory officials and bodies (including all applicable banking officials and bodies), necessary to own or hold their respective properties and to conduct the respective businesses in which they are engaged.  Each such authorization, approval, order, license, franchise, certificate and permit is valid and in full force and effect, and there is no proceeding pending or threatened (and, to the best knowledge of the Company, no basis for any such proceeding exists) which may lead to the revocation, termination, suspension or non-renewal of any authorization, approval, order, license, franchise, certificate or permit and there is no default thereunder.

 

SECTION 3.6 .                        No Violation or Contravention.

 

The execution and delivery by the Company of this Indenture, the issuance, sale and delivery of the Securities and the performance by the Company of its obligations hereunder and under the Securities, and the consummation of the transactions contemplated hereby and under the Securities have been duly authorized by all necessary corporate action on the part of the Company and do not and will not violate any provision of the Charter Documents of the Company or of any of its Subsidiaries, and do not and will not violate, or conflict with, or constitute a default under, or permit the termination of, or result in the creation of any lien, claim or encumbrance upon any property of the Company or any of its Subsidiaries under, (i) any statute or law or any judgment, decree, order, regulation or rule of any court or governmental authority, domestic or foreign, to which the Company or any of its Subsidiaries or any of their respective properties may be subject, or (ii) any material contract, indenture, mortgage, loan agreement, note, lease or other material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them may be bound, or to which any of their respective properties may be subject, which conflict, default, termination or lien, claim or encumbrance would have a material adverse effect upon the operations, business, prospects, assets, properties or condition (financial or other) of the Company and its subsidiaries taken as a whole.

 

SECTION 3.7 .                        Notice of Defaults.

 

(a)           In the event that any Indebtedness (in an amount which exceeds $5,000,000, whether under a single agreement or in the aggregate) other than Indebtedness under any Repurchase Agreement of the Company or any Subsidiary has been or could upon the delivery of notice or passage of time or both be declared due and payable before its maturity because of the occurrence of any

 

20

 

event or condition (including, without limitation, any Default under this Indenture), the Company promptly shall give written notice thereof to the Trustee.

 

(b)          In the event that the Company or any Subsidiary shall receive, with respect to any Indebtedness (in an amount which exceeds $5,000,000) under any Repurchase Agreement of the Company or any Subsidiary, a written notice from the other party to such Repurchase Agreement clearly alleging a default under such Repurchase Agreement which immediately enables, or would upon further notice or lapse of time or both enable, such other party to declare such Indebtedness due and payable before its maturity, the Company shall promptly give written notice thereof to the Trustee.

 

SECTION 3.8 .                        Compliance Certificate.

 

The Company shall deliver to the Trustee within 90 days after the end of each fiscal year of the Company, and within 45 days after the end of each fiscal quarter of the Company, an Officers’ Certificate, which shall comply with Section 10.5, and which shall: (a) state whether or not the signers know of any Default, provided, if they do know of such a Default, the certificate shall describe the Default and its status and the action that the Company is taking or proposes to take with respect thereto; (b) state whether the Company is in compliance with the covenants contained in Section 3.12; and (c) state whether this Indenture is required to be qualified under the TIA.

 

The Company shall deliver to the Trustee, within 105 days after the end of each of its fiscal years, an Accountants’ Certificate stating (a) that their audit examination has included a review of the terms of this Indenture and the Securities as they relate to accounting matters and (b) whether, during the course of their audit examination, any Default has come to their attention and, if such a Default has come to their attention, specifying the nature and period of existence thereof, provided that the independent certified public accountants delivering such Certificate shall not be liable in respect of such statement by reason of any failure to obtain knowledge of any such Default that would not be disclosed in the course of an audit examination conducted in accordance with generally accepted auditing standards.

 

Promptly after any officer of the Company obtains knowledge of any Default, and in any event within 10 Business Days thereafter, the Company shall deliver an Officer’s Certificate to the Trustee describing such Default and its status and the action that the Company is taking or proposes to take with respect thereto.

 

SECTION 3.9 .                        SEC Reports.

 

The Company shall file with the Trustee, within 15 days after it files them with the SEC, copies of the annual reports and of the information, documents (including Forms 10-K, 10-Q and 8-K) and any other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe), if any, which the Company is required to file with the SEC pursuant to

 

21

 

Section 13 or 15(d) of the Exchange Act.  The Company also shall comply with the other provisions of TIA sec. 314(a) whether or not this Indenture is qualified under the TIA.

 

SECTION 3.10 .                  Waiver of Stay, Extension or Usury Laws.

 

The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, or plead, or in any manner whatsoever claim, and shall resist any and all efforts to be compelled to take the benefit or advantage of, any stay or extension law or any usury law or other law which would prohibit or forgive the Company from paying all or any portion of the principal of and/or interest on the Securities as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture; and (to the extent that it may lawfully do so) the Company hereby expressly waives all benefit or advantage of any such law and covenants that it shall not hinder, delay or impede the execution of any power herein granted to the Trustee but shall suffer and permit the execution of every such power as though no such law had been enacted.

 

SECTION 3.11 .                  Payment of Taxes and Other Claims.

 

The Company shall pay or discharge or cause to be paid or discharged, before any penalty accrues thereon, (i) all income and other material taxes, assessments and governmental charges levied or imposed upon the Company or any Subsidiary or upon the income, profits or property of the Company or any Subsidiaries and (ii) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a material Lien upon the property of the Company or any Subsidiaries; provided that none of the Company or any Subsidiary shall be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claims the amount, applicability or validity of which is being contested in good faith by appropriate proceedings and for which adequate provision has been made.

 

SECTION 3.12 .                  Maintenance of Properties and Insurance.

 

The Company shall cause all properties (except for such properties as are not material in the aggregate to the operations, business, condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole) owned by or leased to it or any Subsidiary and used or useful in the conduct of its business or the business of such Subsidiary to be maintained and kept in normal condition, repair and working order and shall cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary, so that the business carried on in connection therewith may be properly and advantageously conducted at all times.

 

The Company shall provide or cause to be provided, for itself and any Subsidiaries of the Company, insurance (including appropriate self-insurance as defined below) against loss or damage of the kinds customarily insured against by corporations similarly situated and owning like properties, including, but not limited to,

 

22

 

public liability insurance, with reputable insurers or with the government of the United States of America or an agency or instrumentality thereof, in such amounts, with such deductibles and by such methods as shall be customary for corporations similarly situated in the industry.  For purposes of the foregoing, “appropriate self-insurance” means any self-insurance if, and only to the extent that, such self-insurance is customarily effected by corporations engaged in the same or similar businesses, similarly situated, and is otherwise prudent in the circumstances and the Company or such Subsidiary maintains adequate reserves with respect thereto.

 

Nothing in this Section shall prevent the Company from pledging any of its assets (whether already owned or acquired after the date hereof) as collateral security for the Indebtedness and Obligations of the Company.

 

SECTION 3.13 .                  Liquidation.

 

The Company shall not adopt any plan of liquidation which provides for, contemplates or the effectuation of which is preceded by (A) the sale, lease, conveyance or other disposition of all or substantially all the assets of the Company otherwise than substantially as an entirety in accordance with Article 4 and (B) the distribution of all or substantially all the proceeds of such sale, lease, conveyance or other disposition and of the remaining assets of the Company to holders of Common Stock of the Company, unless the Company shall in connection with the adoption of such plan make provision for, or agree that prior to making any liquidating distributions it will make provision for, the satisfaction in full in cash of the Company’s obligations hereunder and under the Securities as to the payment of all principal of and premium, if any, and interest on the Securities.

 

SECTION 3.14 .                  Information.

 

(a)           For as long as any of the Securities remain outstanding and are Restricted Securities, the Company covenants and agrees that it shall, during any period in which it is not subject to Section 13 or 15(d) under the Exchange Act, make available to any holder or beneficial holder of Securities that continue to be Restricted Securities in connection with any sale thereof and any prospective purchaser of such Securities from such holder or beneficial holder, the information specified in, and meeting the requirements of, Rule 144A(d)(4) under the Securities Act.

 

(b)          The Company shall provide to each Qualified Holder a copy of each notice or certificate required to be delivered by it to the Trustee pursuant to Section 3.7 or 3.8 and each Form 10-K or Form 10-Q delivered by it to the Trustee pursuant to Section 3.9 concurrently with the delivery thereof to the Trustee.

 

23

 

ARTICLE 4

 

MERGER , ETC.

 

SECTION 4.1 .                        When Company May Merge, etc.

 

The Company shall not consolidate or merge with or into, or sell, assign, transfer, convey, lease or otherwise dispose of, directly or indirectly, all or substantially all of its assets to, any Person unless:

 

(1)                 the Person formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, assignment, transfer or lease or conveyance or other disposition shall have been made, is a corporation organized and existing under the laws of the United States, any state thereof or the District of Columbia;

 

(2)                 the corporation formed by or surviving any such consolidation or merger (if other than the Company), or to which such sale, lease, conveyance or other disposition shall have been made, expressly assumes by supplemental indenture the due and punctual payment or performance of all the Obligations of the Company under the Securities and this Indenture; and

 

(3)                 immediately before and immediately after such transaction, and giving effect thereto, no Default shall have occurred and be continuing.

 

The Company shall deliver to the Trustee prior to any proposed transaction an Officers’ Certificate, an Opinion of Counsel and an Accountants’ Certificate each stating that the proposed transaction and such supplemental indenture comply with this Indenture.

 

SECTION 4.2 .                        Successor Corporation Substituted.

 

Upon any consolidation or merger, or any transfer of all or substantially all of the assets, of the Company in accordance with Section 4.1, the successor corporation formed by such consolidation or into which the Company is merged or to which such transfer is made shall succeed to, and be substituted for, and may exercise every right and power and will be bound by all obligations and covenants of, the Company under this Indenture with the same effect as if such successor corporation had been named as the Company herein and, in the case of any sale, assignment, transfer, conveyance or disposition (other than a transfer or conveyance by way of lease), the Company (which term shall for the purpose mean the Person named as the “Company” in the first paragraph of this Indenture or any successor corporation which previously shall have become liable in the manner prescribed in this Article 4) shall be relieved of all obligations and covenants and shall no longer exercise any rights or powers under this Indenture and the Securities.

 

24

 

ARTICLE 5

 

DEFAULTS AND REMEDIES

 

SECTION 5.1 .                        Events of Default.

 

An “Event of Default” occurs if:

 

(i)                                                                     the Company defaults in the payment of interest on any Security when the same becomes due and the default continues for a period of 20 days, whether or not such payment shall be prohibited by the provisions of Article 9 hereof;

 

(ii)                                                                  the Company defaults in the payment of all or any part of the principal of (or premium, if any, on) any Security when the same becomes due and payable at maturity, upon acceleration, redemption or otherwise, whether or not such payment shall be prohibited by the provisions of Article 9 hereof;

 

(iii)                                                               the Company fails to comply with any of its other agreements or covenants in, or provisions of, the Securities or this Indenture, and such failure continues for the period and after the notice specified below;

 

 

(iv)                                                              a final judgment or final judgments for the payment of money are entered by a court or courts of competent jurisdiction against the Company or any Subsidiary which remains undischarged and unbonded for a period (during which execution shall not be effectively stayed) of 60 days, provided that the aggregate of all such judgments (to the extent not paid or covered by insurance as confirmed to the Company and the Trustee in writing by the appropriate insurance carrier) exceeds $5,000,000;

 

(v)                                    (A)            the entry by a court having jurisdiction in the premises of (1) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (2) a decree or order adjudging the Company bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or of all or substantially all of its assets, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or

 

(B)                the commencement by the Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any

 

25

 

bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company of all or substantially all of its assets or the taking of corporate action by the Company in furtherance of any such action, or the failure generally of the Company to pay its debts as the same become due or the making by the Company of a general assignment for the benefit of its creditors; or

 

(vi)                                 (A)            the entry by a court having jurisdiction in the premises of (1) a decree or order for relief in respect of any Significant Subsidiary of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (2) a decree or order adjudging any such Significant Subsidiary bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of any such Significant Subsidiary under any applicable Federal or State law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of any such Significant Subsidiary or of all or substantially all of its assets, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or

 

(B)               the commencement by any Significant Subsidiary of the Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of any such Significant Subsidiary in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of any such Significant Subsidiary or of all or substantially all of its assets or the taking of corporate action by any such Significant Subsidiary in furtherance of any such action, or the failure generally of any such Significant Subsidiary to pay its debts as the same become due or the making by any Significant Subsidiary of a general assignment for the benefit of its creditors; or

 

(vii)                              (A)            (1)                            the appointment by the Federal Deposit Insurance Corporation or the Board of Governors of the Federal Reserve System (or other competent government agency having primary regulatory authority over any Major Bank Subsidiary) under any applicable Federal or State banking, insolvency or other

 

26

 

similar law now or hereafter in effect of a receiver, conservator or other similar official for any Major Bank Subsidiary or for all or substantially all of its assets or (2) the entry of a decree or order in any case or proceeding under any applicable Federal or State banking, insolvency or other similar law now or hereafter in effect adjudging any Major Bank Subsidiary insolvent or bankrupt, or appointing any receiver, conservator or other similar official for any Major Bank Subsidiary or for all or substantially all of its assets, or ordering the winding up or liquidation of its affairs; or

 

(B)               (1)                             the filing by any Major Bank Subsidiary with the Federal Deposit Insurance Company or the Board of Governors of the Federal Reserve System (or other competent government agency having primary regulatory au