<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 24, 1997.
REGISTRATION NO. 333-24173
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
BANK PLUS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------------
DELAWARE 6712 95-1782887
(State or Other (Primary Standard (I.R.S. Employer
Jurisdiction of Industrial Identification Number)
Incorporation or Classification Code
Organization) Number)
4565 COLORADO BOULEVARD
LOS ANGELES, CALIFORNIA 90039
(818) 241-6215
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
----------------
GODFREY B. EVANS, ESQ.
GENERAL COUNSEL
BANK PLUS CORPORATION
4565 COLORADO BOULEVARD
LOS ANGELES, CALIFORNIA 90039
(818) 549-3330
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
----------------
Copy to:
JOHN L. SAVVA, ESQ.
SULLIVAN & CROMWELL
444 SOUTH FLOWER STREET, 12TH FLOOR
LOS ANGELES, CALIFORNIA 90071
(213) 955-8000
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(a), MAY DETERMINE.
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- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law (the "DGCL") authorizes corporations to
limit or eliminate the personal liability of directors to the corporation and
its stockholders for monetary damages in connection with the breach of a
director's fiduciary duty of care. The duty of care requires that, when acting
on behalf of the corporation, directors must exercise an informed business
judgment based on all material information reasonably available to them.
Absent the limitation authorized by the DGCL, directors could be accountable
to corporations and their stockholders for monetary damages for conduct that
does not satisfy such duty of care. Although the DGCL does not change a
director's duty of care, it enables corporations to limit available relief to
equitable remedies such as injunction or rescission. The Registrant's
certificate of incorporation limits the liability of directors to the
Registrant or its stockholders to the fullest extent permitted by the DGCL as
in effect from time to time. Specifically, directors of the Registrant will
not be personally liable for monetary damages for breach of a director's
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Registrant or its stockholder, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for unlawful payments of dividends or unlawful
stock repurchases or redemptions as provided in Section 174 of the DGCL or
(iv) for any transaction from which the director derived an improper personal
benefit. This provision does not affect a director's responsibilities under
certain other laws such as the federal securities laws or state or federal
environmental laws.
The bylaws of the Registrant provide that the Registrant shall indemnify its
officers, directors and employees to the fullest extent permitted by the DGCL.
The Registrant believes that indemnification under its bylaws covers at least
negligence and gross negligence on the part of the indemnified parties.
The Registrant has entered into indemnification agreements with its
directors and officers which provide for broad indemnification, except where
the "reviewing party" has determined that the indemnitee would not be entitled
to be indemnified under applicable law. The "reviewing party" is defined as
the majority vote of the directors of Registrant not subject to the particular
claim or, if none, independent legal counsel selected by the indemnitee and
approved by the Registrant. No payments may be made under these
indemnification agreements in connection with claims made against a director
or officer for which payment is made under an insurance policy or for which
such person is otherwise indemnified.
Under an insurance policy currently maintained by the Registrant, the
directors and officers of the Registrant are insured, within the limits and
subject to the limitations of the policy, against certain expenses in
connection with the defense of certain claims, actions, suits or proceedings,
and certain liabilities which may be imposed as a result of such claims,
actions, suits or proceedings which may be brought against them by reason of
being or having been such directors or officers.
II-1
<PAGE>
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits.
<TABLE>
<C> <S>
2.1 Agreement and Plan of Reorganization, dated as of March 27, 1996, among
Fidelity, Bank Plus and Fidelity Interim Bank (incorporated by reference
to Exhibit 2.1 to the Form 8-B of Bank Plus filed with the Commission on
April 22, 1996).
4.1* Form of Indenture between Bank Plus and The Bank of New York, as
Trustee, relating to the 12% Senior Notes due , 2007 of Bank
Plus.
5.1+ Opinion of Sullivan & Cromwell regarding the validity of the securities
being registered.
8.1+ Opinion of Sullivan & Cromwell regarding certain federal income tax
matters with respect to the securities being registered.
12.1++ Statement regarding computation of ratios.
23.1++ Consent of Deloitte & Touche.
23.4+ Consents of Sullivan & Cromwell. (Included in its opinions filed as
Exhibits 5.1 and 8.1 to this Registration Statement.)
24.1++ Powers of Attorney.
25.1* Statement of Eligibility under the Trust Indenture Act of 1939 on Form
T-1 of The Bank of New York.
99.1* Amended and Restated Charter S of Fidelity Federal Bank, A Federal
Savings Bank; First Supplemental Section to Section 5.B. of Amended and
Restated Charter S of Fidelity Federal Bank, A Federal Savings Bank;
Certificate of Amendment.
99.2++ Form of Notice of Rejection of Offer and instructions thereto.
99.3++ Form of Letter to Brokers, Dealers, etc.
99.4++ Form of Letter to Clients and instructions thereto.
(b) Not applicable.
(c) Not applicable.
</TABLE>
- --------
* Filed herewith
+To be filed by amendment
++Previously filed
ITEM 22. UNDERTAKING.
The undersigned Registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
II-2
<PAGE>
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4,10(b), 11, or 13 of this
Form, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means.
This includes information contained in documents filed subsequent to the
effective date of the Registration Statement through the date of responding
to the request.
(d) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein,
that was not the subject of and included in the Registration Statement when
it became effective.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions referred to in Item 20, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction, the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Los
Angeles, State of California, on this 24th day of April, 1997.
BANK PLUS CORPORATION
By: /s/ Godfrey B. Evans
____________________________
Godfrey B. Evans
Executive Vice President,
General Counsel and Corporate
Secretary
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by the following persons in
the capacities indicated on April 24, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
*
____________________________________ President, Chief Executive
Richard M. Greenwood Officer and Director
(principal executive officer)
*
____________________________________ Executive Vice President and
William L. Sanders Chief Financial Officer
(principal financial officer)
*
____________________________________ Senior Vice President and Controller
Richard M. Villa (principal accounting officer)
*
____________________________________ Director
Norman Barker, Jr.
*
____________________________________ Director
Waldo H. Burnside
*
____________________________________ Director
George Gibbs, Jr.
*
____________________________________ Director
Lilly V. Lee
*
____________________________________ Director
Gordon V. Smith
*
____________________________________ Director
Mark Sullivan III
</TABLE>
*Godfrey B. Evans
/s/ Godfrey B. Evans
__________________________________
Godfrey B. Evans
Attorney-in-Fact
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
------- -----------
<S> <C>
2.1 Agreement and Plan of Reorganization, dated as of March 27, 1996, among
Fidelity, Bank Plus and Fidelity Interim Bank (incorporated by reference to
Exhibit 2.1 to the Form 8-B of Bank Plus filed with the Commission on April 22,
1996).
4.1* Form of Indenture between Bank Plus and The Bank of New York, as Trustee,
relating to the 12% Senior Notes due March , 2007 of Bank Plus.
5.1+ Opinion of Sullivan & Cromwell regarding the validity of the securities being
registered.
8.1+ Opinion of Sullivan & Cromwell regarding certain federal income tax matters
with respect to the securities being registered.
12.1++ Statement regarding computation of ratios.
23.1++ Consent of Deloitte & Touche.
23.4+ Consents of Sullivan & Cromwell. (Included in its opinions filed as Exhibits
5.1 and 8.1 to this Registration Statement).
24.1++ Powers of Attorney.
25.1* Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of
The Bank of New York.
99.1* Amended and Restated Charter S of Fidelity Federal Bank, A Federal Savings
Bank; First Supplemental Section to Section 5.B. of Amended and Restated
Charter S of Fidelity Federal Bank, A Federal Savings Bank; Certificate of
Amendment.
99.2++ Form of Notice of Rejection of Offer and instructions thereto.
99.3++ Form of Letter to Brokers, Dealers, etc.
99.4++ Form of Letter to Clients and instructions thereto.
</TABLE>
- --------
*Filed herewith.
+To be filed by amendment.
++Previously filed
<PAGE>
EXHIBIT 4.1
BANK PLUS CORPORATION
TO
THE BANK OF NEW YORK
Trustee
-------
________________
Indenture
Dated as of ...........
-----------
________________
$51,750,000
12% Senior Notes due _______
<PAGE>
.....................................
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- ------------------ -------------
<S> <C>
(S) 310(a)(1).............................................. 609
(a)(2)................................................. 609
(a)(3)................................................. Not
Applicable
(a)(4)................................................. Not
Applicable
(b).................................................... 608
610
(S) 311(a)................................................. 613
(b).................................................... 613
(S) 312(a)................................................. 701
702(a)
(b).................................................... 702(b)
(c).................................................... 702(c)
(S) 313(a)................................................. 703(a)
(a)(4)................................................. 101
1004
(b).................................................... 703(a)
(c).................................................... 703(a)
(d).................................................... 703(b)
(S) 314(a)................................................. 704
(b).................................................... Not
Applicable
(c)(1)................................................. 102
(c)(2)................................................. 102
(c)(3)................................................. Not
Applicable
(d).................................................... Not
Applicable
(e).................................................... 102
(S) 315(a)................................................. 601
(b).................................................... 602
</TABLE>
- -------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
-i-
<PAGE>
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- ------------------ -------------
<S> <C>
(c).................................................... 601
(d).................................................... 601
(e).................................................... 514
(S) 316(a)................................................. 101
(a)(1)(A).............................................. 502
512
(a)(1)(B).............................................. 513
(a)(2)................................................. Not
Applicable
(b).................................................... 508
(c).................................................... 104(c)
(S) 317(a)(1).............................................. 503
(a)(2)................................................. 504
(b).................................................... 1003
(S) 318(a)................................................. 107
</TABLE>
- -------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
-ii-
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Parties................................................................................ 1
Recitals of the Company................................................................ 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.............................................................. 1
Act.................................................................................... 2
Affiliate.............................................................................. 2
Authenticating Agent................................................................... 2
Board of Directors..................................................................... 2
Board Resolution....................................................................... 2
Business Day........................................................................... 2
Capital Lease Obligation............................................................... 2
Change of Control...................................................................... 3
Commission............................................................................. 3
Company................................................................................ 3
Company Notice......................................................................... 3
Company Request or Company Order....................................................... 3
Consolidated Net Worth................................................................. 3
Corporate Trust Office................................................................. 3
corporation............................................................................ 3
Defaulted Interest..................................................................... 3
Event of Default....................................................................... 3
Funded Indebtedness.................................................................... 3
Guarantee.............................................................................. 4
Holder................................................................................. 4
Indenture.............................................................................. 4
Interest Payment Date.................................................................. 4
Lien................................................................................... 4
Maturity............................................................................... 5
Officers' Certificate.................................................................. 5
Opinion of Counsel..................................................................... 5
Outstanding............................................................................ 5
Paying Agent........................................................................... 6
Person................................................................................. 6
Predecessor Security................................................................... 6
Property............................................................................... 6
</TABLE>
- ---------------
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
-i-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Redemption Date........................................................................ 6
Redemption Price....................................................................... 6
Regular Record Date.................................................................... 6
Repurchase Date........................................................................ 6
Repurchase Price....................................................................... 6
Responsible Officer.................................................................... 6
Security Register and Security Registrar............................................... 6
Special Record Date.................................................................... 7
Stated Maturity........................................................................ 7
Subsidiary............................................................................. 7
Trustee................................................................................ 7
Trust Indenture Act.................................................................... 7
Vice President......................................................................... 7
SECTION 102. Compliance Certificates and Opinions..................................... 7
SECTION 103. Form of Documents Delivered to Trustee................................... 7
SECTION 104. Acts of Holders; Record Dates............................................ 8
SECTION 105. Notices, Etc., to Trustee and Company.................................... 9
SECTION 106. Notice to Holders; Waiver................................................ 9
SECTION 107. Trust Indenture Act...................................................... 10
SECTION 108. Effect of Headings and Table of Contents................................. 10
SECTION 109. Successors and Assigns................................................... 10
SECTION 110. Separability Clause...................................................... 10
SECTION 111. Benefits of Indenture.................................................... 11
SECTION 112. Governing Law............................................................ 11
SECTION 113. Legal Holidays........................................................... 11
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.......................................................... 11
SECTION 202. Form of Face of Security................................................. 12
SECTION 203. Form of Reverse of Security.............................................. 14
SECTION 204. Form of Trustee's Certificate of Authentication.......................... 16
</TABLE>
- ---------------
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
-ii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.......................................................... 16
SECTION 302. Denominations............................................................ 17
SECTION 303. Execution, Authentication, Delivery and Dating........................... 17
SECTION 304. Temporary Securities..................................................... 17
SECTION 305. Registration, Registration of Transfer and Exchange...................... 18
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities......................... 19
SECTION 307. Payment of Interest; Interest Rights Preserved........................... 20
SECTION 308. Persons Deemed Owners.................................................... 21
SECTION 309. Cancellation............................................................. 21
SECTION 310. Computation of Interest.................................................. 21
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.................................. 21
SECTION 402. Application of Trust Money............................................... 23
ARTICLE FIVE
Remedies
SECTION 501. Events of Default........................................................ 23
SECTION 502. Acceleration of Maturity; Rescission and Annulment....................... 25
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.......... 26
SECTION 504. Trustee May File Proofs of Claim......................................... 26
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.............. 27
SECTION 506. Application of Money Collected........................................... 27
SECTION 507. Limitation on Suits...................................................... 27
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest............................................................. 28
SECTION 509. Restoration of Rights and Remedies....................................... 28
SECTION 510. Rights and Remedies Cumulative........................................... 29
SECTION 511. Delay or Omission Not Waiver............................................. 29
SECTION 512. Control by Holders....................................................... 29
SECTION 513. Waiver of Past Defaults.................................................. 29
</TABLE>
- ------------------
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
-iii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 514. Undertaking for Costs.................................................... 30
SECTION 515. Waiver of Stay or Extension Laws......................................... 30
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities...................................... 30
SECTION 602. Notice of Defaults....................................................... 31
SECTION 603. Certain Rights of Trustee................................................ 31
SECTION 604. Not Responsible for Recitals or Issuance of Securities................... 32
SECTION 605. May Hold Securities...................................................... 32
SECTION 606. Money Held in Trust...................................................... 32
SECTION 607. Compensation and Reimbursement........................................... 33
SECTION 608. Disqualification; Conflicting Interests.................................. 33
SECTION 609. Corporate Trustee Required; Eligibility.................................. 33
SECTION 610. Resignation and Removal; Appointment of Successor........................ 34
SECTION 611. Acceptance of Appointment by Successor................................... 35
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.............. 35
SECTION 613. Preferential Collection of Claims Against Company........................ 36
SECTION 614. Appointment of Authenticating Agent...................................... 36
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders................ 38
SECTION 702. Preservation of Information; Communications to Holders................... 38
SECTION 703. Reports by Trustee....................................................... 38
SECTION 704. Reports by Company....................................................... 39
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms..................... 39
SECTION 802. Successor Substituted.................................................... 40
</TABLE>
- -----------------
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
-iv-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders....................... 40
SECTION 902. Supplemental Indentures with Consent of Holders.......................... 41
SECTION 903. Execution of Supplemental Indentures..................................... 42
SECTION 904. Effect of Supplemental Indentures........................................ 42
SECTION 905. Conformity with Trust Indenture Act...................................... 42
SECTION 906. Reference in Securities to Supplemental Indentures....................... 42
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest............................... 43
SECTION 1002. Maintenance of Office or Agency.......................................... 43
SECTION 1003. Money for Security Payments to Be Held in Trust.......................... 43
SECTION 1004. Statement by Officers as to Default...................................... 45
SECTION 1005. Existence................................................................ 45
SECTION 1006. Maintenance of Property.................................................. 45
SECTION 1007. Payment of Taxes and Other Claims........................................ 45
SECTION 1008. Limitations on Dividends................................................. 45
SECTION 1009. Restrictions on Additional Indebtedness.................................. 46
SECTION 1010. Additional Covenants..................................................... 46
SECTION 1011. Waiver of Certain Covenants.............................................. 46
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption...................................................... 47
SECTION 1102. Applicability of Article................................................. 47
SECTION 1103. Election to Redeem; Notice to Trustee.................................... 47
SECTION 1104. Selection by Trustee of Securities to Be Redeemed........................ 47
SECTION 1105. Notice of Redemption..................................................... 48
SECTION 1106. Deposit of Redemption Price.............................................. 48
SECTION 1107. Securities Payable on Redemption Date.................................... 49
SECTION 1108. Securities Redeemed in Part.............................................. 49
</TABLE>
- -----------------
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
-v-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE TWELVE
Repurchase of Securities at the Option of the
Holder Upon a Change of Control
SECTION 1201. Right to Require Repurchase.............................................. 49
SECTION 1202. Notices; Method of Exercising Repurchase Right, Etc...................... 50
SECTION 1203. Certain Definitions...................................................... 51
TESTIMONIUM............................................................................ 53
SIGNATURES AND SEALS................................................................... 53
ACKNOWLEDGMENTS........................................................................ 53
</TABLE>
- ----------------
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
-vi-
<PAGE>
INDENTURE, dated as of _________________________, between Bank Plus
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
4565 Colorado Boulevard, Los Angeles, California 90039, and The Bank of New
York, a New York banking corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 12%
Senior Notes due ______ (herein called the "Securities") of substantially the
tenor and amount hereinafter set forth, and to provide therefor the Company has
duly authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101 Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
<PAGE>
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation; and
(4) the words "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.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York, New
York, or Los Angeles, California are authorized or obligated by law or executive
order to close.
"Capital Lease Obligation" of any Person means the obligation to
pay rent or other payment amounts under a lease of (or other Funded Indebtedness
arrangements conveying the right to use) real or personal property of such
Person which is required to be classified and accounted for as a capital lease
or a liability on the face of a balance sheet of such Person in accordance with
generally accepted accounting principles. The stated maturity of such obligation
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be terminated by the
lessee without payment of a penalty.
-2-
<PAGE>
"Change of Control" has the meaning specified in Section 1203(c).
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Notice" has the meaning specified in Section 1202.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Net Worth" means, at any date, the total amount of
preferred stock (excluding any preferred stock that is subject to mandatory
redemption) and common shareholders' equity (excluding amounts attributable to
securities that are exchangeable for or convertible into securities other than
common stock) that would appear on a consolidated statement of financial
condition of the Company as of such date, prepared in accordance with generally
accepted accounting principles.
"Corporate Trust Office" means the principal office of the
Trustee in New York, New York at which at any particular time its corporate
trust business shall be administered, and which initially shall be at 101
Barclay St., Floor 21 West, New York, New York 10286.
"corporation" means a corporation, association, company, joint-
stock company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Event of Default" has the meaning specified in Section 501.
"Funded Indebtedness" means any of the following obligations of
the Company: (a) any obligation, contingent or otherwise, for borrowed money or
for the deferred purchase price of property or services (including any interest
accruing subsequent to an Event of Default), (b) all obligations (including the
Securities) evidenced by bonds, notes, debentures or other similar instruments,
(c) all indebtedness created or arising under any conditional sale or other
title retention agreement with respect to property acquired, except for trade
payables and accrued liabilities arising in the ordinary course of business, if
and to the extent such indebtedness would appear as a liability upon a balance
sheet prepared on a consolidated basis in accordance with generally accepted
accounting principles, (d) all Capital Lease Obligations,
-3-
<PAGE>
(e) all indebtedness referred to above secured by (or for which the holder of
such debt has an existing right, contingent or otherwise, to be secured by) any
Lien upon or in property (including, without limitation, accounts and contract
rights), even though the Company has not assumed or become liable for the
payment of such debt, and (f) any Guarantee of any item included above.
Notwithstanding the foregoing, there shall be excluded from the definition of
Funded Indebtedness all ordinary course and similar borrowings having a
contractual term to maturity of one year or less and not constituting offerings
of securities or commercial paper, including repurchase and reverse repurchase
agreements and brokers' margin loans and similar borrowings, but not including
revolving lines of credit or similar borrowings.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Funded Indebtedness of any other
Person (the "primary obligator") in any manner, whether directly or indirectly,
and including, without limitation, any obligation of such Person, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Funded Indebtedness or to purchase (or to advance or supply funds for the
purchase of) any security for the payment of such Funded Indebtedness, (ii) to
purchase property, securities or services for the purpose of assuring the holder
of such Funded Indebtedness of the payment of such Funded Indebtedness, or (iii)
to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Funded Indebtedness (and "Guaranteed", "Guaranteeing" and
"Guarantor" shall have meanings correlative to the foregoing); provided,
--------
however, that the Guarantee by any Person shall not include endorsements by such
- -------
Person for collection or deposit, in either case, in the ordinary course of
business.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"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 pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date" means the Stated Maturity of an
instalment of interest on the Securities.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including,
without limitation, any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing).
-4-
<PAGE>
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 1004 shall
be the principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
------
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are
--------
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
-5-
<PAGE>
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any), the Repurchase Price of or interest on
any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Property" means all properties used or useful in the conduct of
the business of the Company or of any Subsidiary, provided however that Property
shall not include any properties the discontinuance or failure to maintain of
which is, in the judgment of the Company, desirable in the conduct of its
business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the January 30, April 30, July 30, or October 30 (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date.
"Repurchase Date" has the meaning specified in Section 1201.
"Repurchase Price" has the meaning specified in Section 1201.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the chairman
or any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers 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.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
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<PAGE>
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
instalment of interest thereon, means the date specified in such Security as the
fixed date on which the principal of such Security or such instalment of
interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
-------- -------
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under Section 314
of the Trust Indenture Act. Each such certificate or opinion shall be given in
the form of an Officers' Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and shall comply
with the requirements of the Trust Indenture Act and any other requirement set
forth in this Indenture.
SECTION 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters
-7-
<PAGE>
and one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are received
by the Trustee and, where it is hereby expressly required, delivered to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action,
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<PAGE>
or to vote on any action, authorized or permitted to be given or taken by
Holders. If not set by the Company prior to the first solicitation of a Holder
made by any Person in respect of any such action, or, in the case of any such
vote, prior to such vote, the record date for any such action or vote shall be
the 30th day (or, if later, the date of the most recent list of Holders required
to be provided pursuant to Section 701) prior to such first solicitation or
vote, as the case may be. With regard to any record date, only the Holders on
such date (or their duly designated proxies) shall be entitled to give or take,
or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders.
-9-
<PAGE>
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Trust Indenture Act.
-------------------
The provisions of the Trust Indenture Act shall be deemed to apply to
this Indenture to the extent such provisions would be applicable if this
Indenture were required to be qualified under the Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that would be required under the Trust Indenture Act to be a part
of and govern this Indenture, if this Indenture were required to be qualified
under the Trust Indenture Act, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
SECTION 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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<PAGE>
SECTION 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders of Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York without regard to the
conflicts-of-laws provisions thereof.
SECTION 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made on
the Interest Payment Date or Redemption Date, or at the Stated Maturity.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
---------------
The Securities and the Trustee's certificates of authentication shall
be in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods on steel engraved borders or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
-11-
<PAGE>
SECTION 202. Form of Face of Security.
------------------------
Bank Plus Corporation
12% Senior Notes due _________
CUSIP No. __________ $________
No. __________
Bank Plus Corporation, a corporation duly organized and existing under
the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to __________________, or registered assigns,
the principal sum of _____________________ Dollars on ____________, and to pay
interest thereon from _____________ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, quarterly on February
15, May 15, August 15 and November 15 in each year, commencing ___________, at
the rate of 12% per annum, until the principal hereof is paid or made available
for payment. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the, January 30, April 30, July 30 or October 30
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any), the Repurchase Price of and
interest on this Security will be made at the office or agency of the Company
maintained for that purpose in New York, New York, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
-------- -------
the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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<PAGE>
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
BANK PLUS CORPORATION
By _____________________________
Attest:
______________________________
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<PAGE>
SECTION 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of Securities of the
Company designated as its 12% Senior Notes due ______________ (herein called the
"Securities"), limited in aggregate principal amount to $51,750,000 issued and
to be issued under an Indenture, dated as of _______ (herein called the
"Indenture"), between the Company and The Bank of New York, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
The Securities are subject to redemption at the option of the Company,
in whole or in part, at any time or from time to time, on or after November 15,
2005, on not less than 45 nor more than 60 days' notice by first-class mail to
the holders of this Security, at the Redemption Prices set forth below, plus in
each case an amount equal to accrued interest, if any, to (and including) the
Redemption Date: If redeemed during the 12-month period beginning November 15
of the years indicated,
<TABLE>
<CAPTION>
Year Redemption Price
(Per $1,000 of Principal Amount)
<S> <C>
2007 $1,060
2006 $1,080
</TABLE>
Interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.
The Indenture provides that if a Change of Control (as defined
therein) occurs, each Holder of Securities shall have the right, in accordance
with the provisions of the Indenture, to require the Company to repurchase all
of such Holder's Securities, or any portion thereof that is an integral multiple
of $1,000, for cash at a price equal to 110% of the principal amount of such
Securities to be repurchased together with accrued interest to the Repurchase
Date.
In the event of redemption or repurchase of this Security in part
only, a new Security or Securities for the unredeemed or unrepurchased portion
hereof will be issued in the name of the Holder hereof or any such name
designated by the Holder hereof upon the cancellation hereof.
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<PAGE>
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any),
the Repurchase Price of and interest on this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in New York, New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this
-15-
<PAGE>
Security be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
SECTION 204. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
This is one of the Securities referred to in the within-mentioned
Indenture.
____________________________,
as Trustee
By __________________________
Authorized Signatory
Dated: ______________
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
---------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $51,750,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306, 906, 1108 or 1202.
The Securities shall be known and designated as the "12% Senior Notes
due ____________" of the Company. Their Stated Maturity shall be ____________,
and they shall bear interest at the rate of 12% per annum, from __________ or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, as the case may be, payable quarterly on February 15, May 15,
August 15 and November 15, commencing ___________, until the principal thereof
is paid or made available for payment.
The principal of (and premium, if any), the Repurchase Price of and
interest on the Securities shall be payable at the office or agency of the
Company in New York, New York maintained for such purpose and at any other
office or agency maintained by the Company for such purpose; provided, however,
-------- -------
that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
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<PAGE>
The Securities shall be redeemable as provided in Article Eleven and
subject to repurchase as provided in Article Twelve.
SECTION 302. Denominations.
-------------
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and make available for delivery such
Securities as in this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
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<PAGE>
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee or transferees,
one or more new Securities of any authorized denominations and of a like
aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
All 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.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
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<PAGE>
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1108 or 1202.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 1104 and ending at the close of business
on the day of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and make available for delivery
in exchange therefor a new Security of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and make
available for delivery, in lieu of any such destroyed, lost or stolen Security,
a new Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
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<PAGE>
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names the
Securities (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
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<PAGE>
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security shall be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of as directed by a Company Order, except that
the Trustee shall not be required to destroy cancelled Securities.
SECTION 310. Computation of Interest.
-----------------------
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and
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<PAGE>
the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 and, if a Change of Control shall have occurred prior
to
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<PAGE>
such satisfaction and discharge, the obligations of the Company under Article
Twelve shall survive.
SECTION 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
-----------------
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of any interest upon any Security when it
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security at its Maturity or in the payment of the Repurchase Price
of any Security on the applicable Repurchase Date; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of such default or
breach for a period of 30 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(4) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company having an aggregate
principal amount outstanding in excess of $20,000,000 or under any
mortgage, indenture or instrument under which there may be issued or by
which there may be secured or
-23-
<PAGE>
evidenced any indebtedness for money borrowed by the Company having an
aggregate principal amount outstanding in excess of $20,000,000, whether
such indebtedness now exists or shall hereafter be created, which default
shall have resulted in such indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable, without such acceleration having been rescinded or annulled within
a period of 10 days after there shall have been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities a written notice specifying such default and
requiring the Company to cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" hereunder;
provided, however, that, subject to the provisions of Sections 601 and 602,
-------- -------
the Trustee shall not be deemed to have knowledge of such default unless
either (A) a Responsible Officer of the Trustee shall have actual knowledge
of such default or (B) the Trustee shall have received written notice
thereof from the Company, from any Holder, from the holder of any such
indebtedness or from the trustee under any such mortgage, indenture or
other instrument; or
(5) a final judgment or final judgments for the payment of money are
entered against the Company or any Subsidiary in an aggregate amount in
excess of $20,000,000 by a court or courts of competent jurisdiction, which
judgments remain undischarged or unbonded for a period (during which
execution shall not be effectively stayed) of 60 days after all rights to
appeal all such judgments have been exhausted or have expired; or
(6) the entry by a court having jurisdiction in the premises of (A) 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 (B) a decree or order adjudging the
Company a 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 custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, 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
(7) 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 of 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 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
custodian, receiver, liquidator, assignee,
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<PAGE>
trustee, sequestrator or other similar official of the Company or of any
substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default (other than an Event of Default specified in
Section 501(6) or 501(7)) occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal shall
become immediately due and payable. If an Event of Default specified in Section
501(6) or 501(7) occurs, the principal amount of all the Securities shall
automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the Outstanding Securities, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any
Securities which have become due otherwise than by such declaration of
acceleration and the Repurchase Price due and payable with respect to
Securities and interest thereon at the rate borne by the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities,
and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
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<PAGE>
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof or the payment of the
Repurchase Price of any Security on the applicable Repurchase Date,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and the Repurchase
Price due and payable with respect to any Securities, and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and any overdue payment of the Repurchase Price
of any Securities and on any overdue interest, at the rate borne by the
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
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<PAGE>
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, or the payment of the Repurchase Price on any Securities
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any), the Repurchase Price of and interest on
the Securities in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal
(and premium, if any), the Repurchase Price and interest, respectively.
THIRD: To the Company.
SECTION 507. Limitation on Suits.
-------------------
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
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<PAGE>
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity, reasonably satisfactory to the Trustee, against the costs,
expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
----------------------------------------------------------------
Interest.
- --------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any), the Repurchase Price
of and (subject to Section 307) interest on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption, on
the Redemption Date and, in the case of any repurchase, on the applicable
Repurchase Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
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<PAGE>
SECTION 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that
--------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any), the
Repurchase Price of or interest on any Security, or
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(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, that neither this Section nor the Trust Indenture Act
--------
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
SECTION 515. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
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indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
------------------
The Trustee shall give the Holders notice of any default hereunder as
and to the extent provided by the Trust Indenture Act; provided, however, that
-------- -------
in the case of any default of the character specified in Section 501(3), no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default.
SECTION 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) shall, in the absence
of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity, reasonably
satisfactory to the Trustee, against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
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(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
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SECTION 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time compensation as the
Company and the Trustee shall agree upon in writing from time to time for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
SECTION 608. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and its Corporate
Trust Office in New York, New York. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
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SECTION 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the date of such Board Resolution or any order
or decree of any court removing the Trustee, as the case may be, the retiring
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor
Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of
such
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appointment, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of
a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust
Office.
SECTION 611. Acceptance of Appointment by Successor.
--------------------------------------
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenti cating Trustee may
adopt such authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such
Securities.
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SECTION 613. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer, partial
conversion or partial redemption or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which
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shall be acceptable to the Company and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders as their names
and addresses appear in the Security Register. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities described in the within-mentioned
Indenture.
_____________________________,
As Trustee
----------
By___________________________,
As Authenticating Agent
-----------------------
By___________________________
Authorized Officer
------------------
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ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
- ---------
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
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(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 704. Reports by Company.
------------------
Within 60 days of May 15 of each year, the Company shall file with the
Trustee and the Commission, and transmit to Holders, such information, documents
and other reports, and such summaries thereof, as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant to such
Act; provided that any such information, documents or reports required to be
--------
filed with the Commission pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 shall be filed with the Trustee within 5 days after the
same is so required to be filed with the Commission; provided further that the
-------- -------
Company shall transmit to Holders copies of all annual and quarterly reports
that it is required to file with the Trustee (or summaries thereof) within 30
days after such filing is required to be made. Delivery of such reports,
information and documents to the Trustee is for the informational purposes only
and the Trustee's receipt of such shall not constitute constructive notice of
any information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease all or substantially all of its property to any
Person, and the Company shall not permit any Person to consolidate with or merge
into the Company or convey, transfer or lease all or substantially all of its
property to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease all or substantially all of its
property to any Person, the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, all or substantially all of the property of the
Company shall be a corporation duly organized and existing under the laws
of the United States of America, any State thereof or the District of
Columbia and shall unconditionally assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if
any) and interest on all the
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Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or a Subsidiary
as a result of such transaction as having been incurred by the Company or
such Subsidiary at the time of such transaction, no Event of Default, and
no event which, after notice or lapse of time or both, would become an
Event of Default, shall have occurred and be continuing;
(3) immediately after giving effect to such transaction, the
surviving entity and its subsidiaries meet all applicable statutory capital
requirements; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802. Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
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(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to secure the Securities; or
(4) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of
this Indenture, provided that such action pursuant to this Clause (4) shall
--------
not adversely affect the interests of the Holders in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
- -------- -------
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment
of interest on, any Security, or reduce the principal amount thereof or the
rate of interest thereon or any premium payable upon the redemption
thereof, or change the place of payment where, or the coin or currency in
which, any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or adversely affect the right to cause the
Company to repurchase any Security pursuant to Article Twelve, or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
or
(3) modify any of the provisions of this Section, Section 513 or
Section 1011, except to increase any such percentage or to provide that
certain other provisions of
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this Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
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ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in New York, New York an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will 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 to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, 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, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside New York, New York) where the Securities may
be presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or
-------- -------
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in 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.
SECTION 1003. Money for Security Payments to Be Held in Trust.
-----------------------------------------------
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of (and premium, if any), the
Repurchase Price of or interest on any of the Securities, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any), the Repurchase Price or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of (and premium, if any), the Repurchase
Price of or interest on
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<PAGE>
any Securities, deposit with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture Act, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (i) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (ii) during the continuance of any
default by the Company (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any), the Repurchase Price of or interest on any Security and remaining
unclaimed for two years after such principal (and premium, if any), the
Repurchase Price or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
-------- -------
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in New York, New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 1004. Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate which shall be signed by the principal executive officer, the
principal accounting officer, or the chief financial officer, stating whether or
not to the best knowledge of the signers thereof the Company is in default in
the performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided
-44-
<PAGE>
hereunder) and, if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
SECTION 1005. Existence.
---------
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
-------- -------
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1006. Maintenance of Property.
-----------------------
The Company will cause all Property to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will 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.
SECTION 1007. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all 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 Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the Property of the Company or any Subsidiary; provided,
--------
however, that the Company shall not be required to pay or discharge or cause to
- -------
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1008. Limitations on Dividends.
------------------------
So long as any of the Securities are Outstanding, the Company will not
declare or pay or set apart any funds for the payment of dividends on, or make
any other distribution in respect of, or make or permit any Subsidiary or
Affiliate of the Company to make any payment on account of the purchase,
redemption or other acquisition or retirement of, any shares of the Company's
capital stock (other than dividends or distributions payable solely in shares of
its capital stock) if (at the time of such action and after giving effect, as if
paid, to the proposed dividend, distribution or payment): (a) the declaration
or payment of such dividend would be in violation of applicable federal or state
banking laws and regulations, (b) Fidelity Federal Bank, A Federal Savings Bank,
or the Company would fail to be in compliance with applicable regulatory capital
requirements or (c) an Event of Default or an event which, after notice or
-45-
<PAGE>
lapse of time or both, would become an Event of Default shall have occurred and
be continuing.
SECTION 1009. Restrictions on Additional Indebtedness.
---------------------------------------
The Company will not incur, assume, guarantee or otherwise create any
Funded Indebtedness if, immediately after giving effect thereto, the amount of
Funded Indebtedness, including the Securities, would be greater than 100% of the
Company's Consolidated Net Worth.
SECTION 1010. Additional Covenants.
--------------------
The Company covenants (a) that neither the Company nor any Subsidiary
will engage in transactions with any Affiliate of the Company or any Subsidiary,
except that the Company or Subsidiary may (i) make such payments and investments
and enter into such transactions on terms and conditions at least as favorable
to the Company or such Subsidiary, as the case may be, as those that could be
obtained in a comparable arm's length transaction with a person who is not an
Affiliate of the Company or any Subsidiary (as determined in good faith by the
Board of Directors of the Company, whose determination shall be conclusive) and
(ii) make payments or provide compensation (including the extension of credit in
accordance with the requirements of applicable laws and regulations) for
services rendered by an Affiliate of the Company or any Subsidiary who is an
officer, director or employee of the Company or any Subsidiary, (b) to maintain
and to cause each Subsidiary to maintain, with financially sound and reputable
insurance companies, insurance on all its Property of an insurable nature in at
least such amounts as are usually insured against in the same general area by
companies of established repute engaged in a similar business, (c) to keep, and
to cause each Subsidiary to keep, proper books of record and account and to
cause its books of record and account and those of each of its Subsidiaries to
be examined on a consolidated basis by a nationally recognized firm of
independent public accountants not less frequently than annually for purposes of
preparing audited consolidated financial statements and (d) that it and its
Subsidiaries will comply with applicable laws, rules and regulations and renew
any license, permit and other authorizations necessary to the ownership or
operation of their properties or to the conduct of their businesses, if the
failure to so comply, obtain, preserve and renew adversely affects in any
material respect the Company's consolidated business, prospects, earnings,
properties or condition.
SECTION 1011. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1005 to 1010, inclusive, if before
the time for such compliance the Holders of at least a majority in principal
amount of the Outstanding Securities shall, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver
-46-
<PAGE>
shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in full force
and effect.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption.
-------------------
The Securities may be redeemed at the election of the Company, as a
whole or in part, at any time or from time to time, on or after November 15,
2005 at the Redemption Prices specified in the form of Security hereinbefore set
forth, together with accrued interest to (and including) the Redemption Date.
SECTION 1102. Applicability of Article.
------------------------
Redemption of Securities at the election of the Company, as permitted
by any provision of this Indenture, shall be made in accordance with such
provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company of less than all the Securities, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities to
be redeemed.
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by lot or a substantially equivalent method which may
provide for the selection for redemption of portions (equal to $1,000 or any
integral multiple thereof) of the principal amount of Securities of a
denomination larger than $1,000.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
-47-
<PAGE>
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1105. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 45 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall include the CUSIP number of the
Securities and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to be redeemed,
the identification (and, in the case of partial redemption of any
Securities, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date, and
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
-48-
<PAGE>
SECTION 1107. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest whose
-------- -------
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
SECTION 1108. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company designated for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
Repurchase of Securities at the Option of the
Holder Upon a Change of Control
SECTION 1201. Right to Require Repurchase.
---------------------------
In the event that a Change of Control shall occur, then each Holder
shall have the right, at the Holder's option, to require the Company to
repurchase, and upon the exercise of such right the Company shall repurchase,
all of such Holder's Securities, or any portion of the principal amount thereof
that is an integral multiple of $1,000, on the date (the "Repurchase Date") that
is 25 days after the date of the Company Notice (as defined in Section 1202) for
cash at a purchase price equal to 110% of the principal amount of the Securities
to be repurchased (the "Repurchase Price"), together in each case with accrued
interest to the
-49-
<PAGE>
Repurchase Date (unless the Repurchase Date shall occur prior to an Interest
Payment Date and after the close of business on the corresponding Regular Record
Date). Such right to require the repurchase of the Securities shall not continue
after a discharge of the Company from its obligations with respect to the
Securities in accordance with Article Four, unless a Change of Control shall
have occurred prior to such discharge.
SECTION 1202. Notices; Method of Exercising Repurchase Right, Etc.
----------------------------------------------------
(a) Unless the Redemption Date shall have occurred in connection with
the Company's call for redemption of all the Outstanding Securities, on or
before the 15th day after the occurrence of a Change of Control, the Company or,
at the request of the Company, the Trustee, shall mail to all Holders a notice
(the "Company Notice") of the occurrence of the Change of Control and of the
repurchase right set forth herein arising as a result thereof. The Company
shall also deliver a copy of such notice of a repurchase right to the Trustee
and cause a copy of such notice of a repurchase right, or a summary of the
information contained therein, to be published in a newspaper of general
circulation in The City of New York.
Each notice of a repurchase right shall state:
(1) the Repurchase Date,
(2) the date by which the repurchase right must be exercised,
(3) the Repurchase Price, and
(4) a description of the procedure which a Holder must follow to
exercise a repurchase right.
No failure of the Company to give the foregoing notices or defect
therein shall limit any Holder's right to exercise a repurchase right or affect
the validity of the proceedings for the repurchase of Securities.
If any of the foregoing provisions are inconsistent with applicable
law, such law shall govern.
(b) To exercise a repurchase right, a Holder shall deliver to the
Trustee on or before the 15th day after the date of the Company Notice (i)
written notice of the Holder's exercise of such right, which notice shall set
forth the name of the Holder, the principal amount of the Securities to be
repurchased and a statement that an election to exercise the repurchase right is
being made thereby, and (ii) the Securities with respect to which the repurchase
right is being exercised, duly endorsed for transfer to the Company. Such
written notice shall be irrevocable.
(c) In the event a repurchase right shall be exercised in accordance
with the terms hereof, the Company shall pay or cause to be paid the Repurchase
Price in cash to
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<PAGE>
the Holder on the Repurchase Date, together with accrued and unpaid interest to
the Repurchase Date payable with respect to the Securities as to which the
repurchase right has been exercised; provided, however, in the event the
-------- -------
Repurchase Date shall occur prior to the opening of business on an Interest
Payment Date and after the close of business on the corresponding Regular Record
Date, the interest payable on such Interest Payment Date shall be payable to the
Holder of such Securities, or one or more predecessor Securities, registered as
such on the relevant Regular Record Date as provided in Article Three and no
accrued and unpaid interest shall be payable upon repurchase of such Securities.
(d) If any Security surrendered for repurchase shall not be so paid
on the Repurchase Date, the Repurchase Price shall, until paid, bear interest to
the extent permitted by applicable law from the Repurchase Date at the rate
borne by the Security.
(e) Any Security which is to be repurchased only in part shall be
surrendered to the Trustee (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, containing identical terms and conditions,
of any authorized denomination as requested by such Holder in aggregate
principal amount equal to and in exchange for the unrepurchased portion of the
principal of the Security so surrendered.
SECTION 1203. Certain Definitions.
-------------------
For purposes of this Article Twelve,
(a) the term "beneficial owner" shall be determined in accordance
with Rule 13d-3, as in effect on the date of the original execution of this
Indenture, promulgated by the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended;
(b) the term "Person" shall include any syndicate or group which
would be deemed to be a "person" under Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended, as in effect on the date of the original
execution of this Indenture, other than the Company, any subsidiary of the
Company or any employee benefit plan of the Company; and
(c) a "Change of Control" will be deemed to have occurred at such
time as:
(i) any Person is or becomes the beneficial owner, directly or
indirectly, through a purchase, merger or other acquisition transaction or
series of transactions, of shares of capital stock of the Company entitling
such Person to exercise 50% or more of the total voting power of all shares
of capital stock of the Company entitled to vote generally in the election
of directors; or
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<PAGE>
(ii) there occurs any consolidation of the Company with, or merger of
the Company into, any other Person, any merger of another Person into the
Company, or any sale or transfer of all or substantially all of the assets
of the Company to another Person (other than a merger which does not result
in any reclassification, conversion, exchange or cancellation of
outstanding shares of any class of the Company's capital stock);
provided, however, that no Change of Control shall be deemed to have occurred
- -------- -------
unless and until the transaction that would result in such Change of Control has
been approved by the Board of Directors of the Holding Company and by the Office
of Thrift Supervision (or any successor agency).
____________________
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
-52-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
BANK PLUS CORPORATION
By: ___________________________
Name:
Title:
Attest:
__________________________
THE BANK OF NEW YORK,
as Trustee
By: ___________________________
Name:
Title:
Attest:
___________________________
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<PAGE>
STATE OF CALIFORNIA) ss.:
COUNTY OF LOS ANGELES )
On the _____ day of __________, 1997, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that he --she is ______________________________________________
of Bank Plus Corporation, one of the corporations described in and which
executed the foregoing instrument; that he -- she knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he -- she signed his -- her name thereto by like
authority.
______________________________
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
On the _____ day of __________, 1997, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that he --she is ______________________________________________
of The Bank of New York, one of the corporations described in and which executed
the foregoing instrument; that he -- she knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that
he -- she signed his -- her name thereto by like authority.
______________________________
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<PAGE>
EXHIBIT 25.1
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
BANK PLUS CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 95-1782887
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
4565 Colorado Boulevard
Los Angeles, California 90039
(Address of principal executive offices) (Zip code)
______________________
12% Senior Notes due 2007
(Title of the indenture securities)
================================================================================
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
- -------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7A-
29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE 24 OF THE
COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust
powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with
Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed
with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 21st day of April, 1997.
THE BANK OF NEW YORK
By: /s/ Paul J. Schmalzel
----------------------------
Name: Paul J. Schmalzel
Title: Assistant Treasurer
-4-
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286 And Foreign and Domestic Subsidiaries, a
member of the Federal Reserve System, at the close of business September 30,
1996, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository
institutions:
Noninterest-bearing balances
and currency and coin........................... $ 4,404,522
Interest-bearing balances....................... 732,833
Securities:
Held-to-maturity securities..................... 789,964
Available-for-sale securities................... 2,006,608
Federal funds sold in domestic offices
of the bank:
Federal funds sold.............................. 3,364,838
Loans and lease financing receivables:
Loans and leases, net of unearned income........ 28,728,602
LESS: Allowance for loan and lease losses....... 584,525
LESS: Allocated transfer risk reserve........... 429
Loans and leases, net of unearned income,
allowance, and reserve......................... 28,143,648
Assets held in trading accounts................... 1,004,242
Premises and fixed assets (including
capitalized leases)............................. 605,668
Other real estate owned........................... 41,238
Investments in unconsolidated subsidiaries and
associated companies............................ 205,031
Customers' liability to this bank on
acceptances outstanding......................... 919,154
Intangible assets................................. 490,524
Other assets...................................... 1,305,839
-----------
Total assets...................................... $44,043,010
===========
LIABILITIES
Deposits:
In domestic offices............................. $20,441,318
Noninterest-bearing............................. 8,158,472
Interest-bearing................................ 12,252,846
In foreign offices, Edge and Agreement
subsidiaries, and IBFs......................... 11,710,903
Noninterest-bearing............................. 46,182
Interest-bearing................................ 11,664,721
Federal funds purchased in domestic offices
of the bank:
Federal funds purchased......................... 1,565,288
Demand notes issued to the U.S.
Treasury........................................ 293,186
Trading liabilities............................... 826,856
Other borrowed money:
With original maturity of one year or less...... 2,103,443
With original maturity of more than one year.... 20,766
Bank's liability on acceptances executed and
outstanding..................................... 951,116
Subordinated notes and debentures................. 1,020,400
Other liabilities................................. 1,522,884
-----------
Total liabilities................................. 40,456,160
-----------
EQUITY CAPITAL
Common stock...................................... 942,284
Surplus........................................... 525,666
Undivided profits and capital reserves............ 2,129,376
Net unrealized holding gains (losses) on
available-for-sale securities................... (2,073)
Cumulative foreign currency translation
adjustments..................................... (8,403)
-----------
Total equity capital.............................. 3,586,850
Total liabilities and equity capital.............. $44,043,010
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot
Thomas A. Renyi } Directors
Alan R. Griffith
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT 99.1
Charter No. 6109
AMENDED AND RESTATED
CHARTER S
FIDELITY FEDERAL BANK, A FEDERAL SAVINGS BANK
SECTION 1. Corporate Title. The full corporate title of the savings bank
is "Fidelity Federal Bank, A Federal Savings Bank".
SECTION 2. Office. The home office of the savings bank shall be located in
Glendale in the County of Los Angeles, State of California.
SECTION 3. Powers. The savings bank is a capital stock savings bank
chartered under Section 5 of the Home Owners' Loan Act and has and may exercise
all the express, implied and incidental powers conferred thereby and by all acts
amendatory thereof and supplemental thereto, subject to the Constitution and
laws of the United States as they are now in effect, or as they may hereafter be
amended, and subject to all lawful and applicable rules, regulations, and orders
of the Office of Thrift Supervision or any successor agency (the "OTS"). In
addition, the savings bank may make any investment and engage in any activity as
may be specifically authorized by action of the OTS, including authorization by
delegating authority, in connection with action approving the issuance of the
charter.
SECTION 4. Duration. The duration of the savings bank is perpetual.
SECTION 5. Capital Stock. The total number of shares of all classes of the
capital stock which the savings bank has authority to issue is one hundred
million (100,000,000), of which (a) seventy-three million (73,000,000) shall be
Class A Common Stock, par value $.01 per share, ("Class A Common Stock"), (b)
fourteen million (14,000,000) shall be Class B Common Stock, par value $.01 per
share ("Class B Common Stock"), (c) three million (3,000,000) shall be Class C
Common Stock, par value $.01 per share ("Class C Common Stock" and, together
with the Class A Common Stock and Class B Common Stock, "Common Stock") and (d)
ten million (10,000,000) shall be serial preferred stock. The shares may be
issued by the savings bank from time to time as approved by its board of
directors without the approval of its stockholders except as otherwise provided
in this Section 5. The consideration for the issuance of the shares shall be
paid in full before their issuance and shall not be less than the stated value
per share. Neither promissory notes nor future services shall constitute
payment or partial payment for the issuance of shares of the savings bank. The
consideration for the shares shall be cash, tangible or intangible property,
labor or services actually performed for the savings bank or any combination of
the foregoing. In the absence of actual fraud in the transaction, the value of
such property, labor or services, as determined by the board of directors of the
savings bank, shall be
<PAGE>
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 2
- ------------------------------
conclusive. Upon payment of such consideration such shares shall be deemed to be
fully paid and nonassessable. In the case of a stock dividend, that part of the
surplus of the savings bank which is transferred to stated capital upon the
issuance of shares as a share dividend shall be deemed to be the consideration
for their issuance.
Subject to the rights of any preferred stock outstanding from time to time
and except as otherwise expressly provided in Section 5(A) hereof, nothing
contained in this Section 5 (or in any supplementary sections hereto) shall
entitle the holders of any class or series of capital stock to vote as a
separate class or series or to more than one vote per share; provided, however,
that this restriction on voting separately by class or series shall not apply to
any amendment which would adversely change the specific terms of any class or
series of capital stock as set forth in this Section 5 (or in any supplementary
sections hereto). An amendment which increases the number of authorized shares
of any class or series of capital stock, or substitutes the surviving savings
bank or the entity in a merger or consolidation for the savings bank, shall not
be considered to be such an adverse change.
No shares of capital stock (including shares issuable upon conversion,
exchange or exercise of other securities) shall be issued, directly or
indirectly, to officers, directors or controlling persons of the savings bank
other than as part of a general public offering, unless their issuance or the
plan under which they would be issued has been approved by a majority of the
total number of outstanding shares of Class A Common Stock.
A description of the different classes and series of the savings bank's
capital stock and a statement of the designations, and the relative rights,
preferences and limitations of the shares of each class of and series of capital
stock are as follows:
(A) Common Stock. Except as provided in this Section 5 (or in any
------------
supplementary sections hereto) the holders of the Common Stock shall exclusively
possess all voting power.
(1) Class A Common Stock. The shares of Class A Common Stock, shares of
Class B Common Stock and shares of Class C Common Stock shall be identical in
all respects and shall have equal rights and privileges except as set forth in
this Section 5.
(a) Dividends and Distributions.
(i) Subject to all of the rights of any preferred stock outstanding
from time to time and Sections 5(A)(1)(a)(ii) and (iii) below, such
dividends and distributions as may be determined by the Board of
Directors of the savings bank from time to
<PAGE>
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 3
- ------------------------------
time may be declared and paid or made upon the Class A Common Stock out
of any source at the time lawfully available for the payment of
dividends provided that identical dividends or distributions are
declared and paid or made concurrently upon the Class B Common Stock and
Class C Common Stock.
(ii) No dividend may be declared and paid or made in Class A Common
Stock unless the dividend is payable only to holders of Class A Common
Stock and both (1) a dividend payable in Class B Common Stock is
declared and paid or made concurrently in respect of outstanding shares
of Class B Common Stock in the same number of shares of Class B Common
Stock per outstanding share and (2) a dividend payable in Class C Common
Stock is declared and paid or made concurrently in respect of
outstanding shares of Class C Common Stock in the same number of shares
of Class C Common Stock per outstanding share.
(iii) No distribution of rights to acquire shares of Class A Common
Stock may be made unless such distribution is made only in respect of
Class A Common Stock and a distribution of rights to acquire shares of
Class B Common Stock and Class C Common Stock is made concurrently in
respect of outstanding shares of Class B Common Stock and Class C Common
Stock, respectively, with such rights evidencing the right to acquire
the same number of shares of each class per outstanding share and
including identical terms as the rights distributed to holders of Class
A Common Stock.
(b) Stock Combinations and Subdivisions. Subject to the rights of any
preferred stock outstanding from time to time and the provisions of Sections
5(A)(2)(b) and 5(A)(3)(b) hereof, the Class A Common Stock may be combined
or subdivided in such manner as may be permitted by applicable law;
provided, however, that the Class A Common Stock shall not be combined or
-------- -------
subdivided unless concurrently therewith there is a proportionate
combination or subdivision of both the Class B Common Stock and the Class C
Common Stock.
(c) Voting. Subject to the rights of any preferred stock outstanding
from time to time and the provisions of Sections 5(A)(2)(c) and 5(A)(3)(c)
hereof, the Class A Common Stock shall have exclusive voting power and shall
have one vote per share. Without limiting the generality of the foregoing:
(i) With respect to the election of directors of the savings bank,
the holders of Class A Common Stock shall (subject to voting rights that
may be granted to
<PAGE>
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 4
- ------------------------------
holders of preferred stock outstanding from time to time) be entitled to
elect all directors.
(ii) The holders of the Class A Common Stock shall (subject to
voting rights that may be granted to holders of preferred stock
outstanding from time to time) be entitled to vote on the removal, with
or without cause, of any director.
(iii) Any vacancy in the office of a director shall (subject to
voting rights that may be granted to holders of preferred stock
outstanding from time to time) be filled by a vote of the holders of
Class A Common Stock or, in the absence of a stockholder vote, by the
remaining directors.
(2) Class B Common Stock.
(a) Dividends and Distributions.
(i) Subject to the rights of any preferred stock outstanding
from time to time and the provisions of Sections 5(A)(2)(a)(ii)
and (iii) below, such dividends and distributions as may be
determined by the Board of Directors of the savings bank from time
to time may be declared and paid or made upon the Class B Common
Stock out of any source at the time lawfully available for the
payment of dividends provided that identical dividends or
distributions are declared and paid or made concurrently upon the
Class A Common Stock and the Class C Common Stock.
(ii) No dividend may be declared and paid or made in Class B
Common Stock unless the dividend is payable only in respect of Class
B Common Stock and both (1) a dividend payable in Class A Common
Stock is declared and paid or made concurrently in respect of
outstanding shares of Class A Common Stock in the same number of
shares of Class A Common Stock per outstanding share and ( 2) a
dividend payable in Class C Common Stock is declared and paid or
made concurrently in respect of outstanding shares of Class C Common
Stock in the same number of shares of Class C Common Stock per
outstanding share.
(iii) No distribution of rights to acquire shares of Class B
Common Stock may be made unless such distribution is made only in
respect of Class B Common Stock and a distribution of rights to
acquire shares of Class A
<PAGE>
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 5
- ------------------------------
Common Stock and Class C Common Stock is made concurrently in
respect of outstanding shares of Class A Common Stock and Class C
Common Stock, respectively, with such rights evidencing the right to
acquire the same number of shares of each class per outstanding
share and including identical terms as the rights distributed to
holders of Class B Common Stock.
(b) Stock Combinations and Subdivisions. Subject to the rights of any
preferred stock outstanding from time to time and the provisions of Sections
5(A)(1)(b) and 5(A)(3)(b) hereof, the Class B Common Stock may be combined
or subdivided in such manner as may be permitted by applicable law;
provided, however, that if the Class B Common Stock is combined or
-------- -------
subdivided, a proportionate combination or subdivision of both the Class A
Common Stock and the Class C Common Stock shall be made concurrently
therewith.
(c) Voting. Except as otherwise expressly provided in this paragraph
(c) or as otherwise required by law, the holders of Class B Common Stock
shall have no right to vote on any matters to be voted on by the
stockholders of the savings bank (including, without limitation, any
election or removal of the directors of the savings bank). Notwithstanding
the foregoing, the holders of Class B Common Stock shall have the following
voting rights and one vote per share:
(i) No amendment, modification or waiver of any provision of this
Amended and Restated Charter S, in any such case which would adversely
affect the rights of the Class B Common Stock (including, without
limitation, any increase or decrease in the percentage of shares of
outstanding Class B Common Stock required to approve any such amendment,
modification or waiver) will be effective without the prior affirmative
vote of the holders of a majority of shares of Class B Common Stock at
the time outstanding voting as a separate class.
(ii) The holders of the Class B Common Stock shall be entitled to
vote, (A) together with the holders of the Class A Common Stock, all
such holders of Class A Common Stock and Class B Common Stock voting
together as a single class, on any consolidation or merger of the
savings bank with or into another Person, any merger of another Person
into the savings bank or any sale or conveyance of all or substantially
all of the assets of the savings bank to any Person, in each case if,
and only if, the holders of the Class A Common Stock are entitled to
vote on such matter and (B) together with the holders of Class A Common
Stock and Class C Common Stock, all such holders of Class A Common
Stock, Class B Common stock and Class
<PAGE>
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 6
- ------------------------------
C Common Stock voting together as a single class, on any dissolution of
the savings bank.
(iii) Notwithstanding anything herein to the contrary, until
shares of Class A Common Stock are issued and become outstanding, the
holders of Class B Common Stock shall have all voting power (subject to
voting rights that may be granted to holders of preferred stock
outstanding from time to time), which voting power shall be exclusive.
(d) Automatic Conversion.
(i) Upon the Transfer (other than by way of a dividend or
distribution by CHC to its stockholders generally) by a holder of
one or more shares of Class B Common Stock (the "Transferred
Shares") and delivery by the transferor to the savings bank of a
certificate in form and substance reasonably satisfactory to the
savings bank to the effect that, to the best of the transferor's
knowledge, immediately after such Transfer, none of the Transferred
Shares will be CHC Shares, or, if any of the Transferred Shares will
be CHC Shares, specifying such shares, then the Transferred Shares,
other than any CHC shares, shall immediately and automatically be
converted into an equal number of shares of Class A Common Stock. As
promptly as practicable after presentation to the savings bank at
its principal office of the certificate or certificates, duly
endorsed to the savings bank or in blank or accompanied by stock
powers duly executed to the savings bank or in blank, representing
the Transferred Shares, together with the certificate of the
transferor thereof referred to above, the savings bank shall issue
and deliver, to or upon the written order of the transferee,
certificates representing the shares, if any, of Class A Common
Stock into which such Transferred Shares are converted. In case any
certificate for shares of Class B Common Stock shall be surrendered
for Transfer of only a part of the shares represented thereby or in
case any of the Transferred Shares shall be CHC Shares, the savings
bank shall deliver, as promptly as practicable after such surrender,
to or upon the written order of the transferor, a certificate or
certificates for the number of shares of Class B Common Stock
represented by such surrendered certificate that have not been
converted into shares of Class A Common Stock.
(ii) Upon the Transfer by way of a dividend or distribution by
CHC to its stockholders generally of one or more shares of Class B
Common Stock
<PAGE>
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 7
- ------------------------------
(the "Distributed Shares"), all Distributed Shares constituting
Eligible Distributed Shares shall immediately and automatically be
converted into an equal number of shares of Class A Common Stock. As
promptly as practicable after presentation to the savings bank at
its principal office of the certificate or certificates, duly
endorsed to the savings bank or in blank or accompanied by stock
powers duly executed to the savings bank or in blank, representing
the Distributed Shares, the savings bank shall issue and deliver, to
or upon the written order of the transferee, certificates
representing the shares, if any, of Class A Common Stock into which
such Transferred Shares are converted. In case any certificate for
shares of Class B Common Stock shall be surrendered for Transfer by
way of such dividend or distribution of only a part of the shares
represented thereby or in case any of the Distributed Shares shall
not be Eligible Distributed Shares, the savings bank shall deliver,
as promptly as practicable after such surrender, to or upon the
written order of the transferor (in the case of a Transfer of only
part of such shares) or transferee (in the case of a Transfer of
Distributed Shares that are not Eligible Distributed Shares), a
certificate or certificates for the number of shares of Class B
Common Stock represented by such surrendered certificate that have
not been converted into shares of Class A Common Stock.
(iii) If, at any time, the number of issued and outstanding
shares of Class B Common Stock shall be less than 10% of the
aggregate number of issued and outstanding shares of Common Stock,
all such outstanding shares of Class B Common Stock shall, without
any further action by the holder thereof, immediately and
automatically be converted into an equal number of shares of Class A
Common Stock. Upon any such automatic conversion, as promptly as
practicable after presentation to the savings bank at its principal
office of the certificate or certificates, duly endorsed to the
savings bank or in blank or accompanied by stock powers duly
executed to the savings bank or in blank, representing any shares of
Class B Common Stock, the savings bank shall issue and deliver to or
upon the written order of the registered holder of such shares of
Class B Common Stock, certificates representing the shares of Class
A Common Stock into which such shares of Class B Common Stock are
converted.
(3) Class C Common Stock.
(a) Dividends and Distributions.
<PAGE>
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 8
- ------------------------------
(i) Subject to the rights of any preferred stock outstanding
from time to time and the provisions of Sections 5(A) (3) (a)(ii)
and (iii) below, such dividends and distributions as may be
determined by the Board of Directors of the savings bank from time
to time may be declared and paid or made upon the Class C Common
Stock out of any source at the time lawfully available for the
payment of dividends provided that identical dividends or
distributions are declared and paid or made concurrently upon the
Class A Common Stock and the Class B Common Stock.
(ii) No dividend may be declared and paid or made in Class C
Common Stock unless the dividend is payable only in respect of Class
C Common Stock and both (1) a dividend payable in Class A Common
Stock is declared and paid or made concurrently in respect of
outstanding shares of Class A Common Stock in the same number of
shares of Class A Common Stock per outstanding share and (2) a
dividend payable in Class B Common Stock is declared and paid or
made concurrently in respect of outstanding shares of Class B Common
Stock in the same number of shares of Class B Common Stock per
outstanding share.
(iii) No distribution of rights to acquire shares of Class C
Common Stock may be made unless such distribution is made only in
respect of Class C Common Stock and a distribution of rights to
acquire shares of Class A Common Stock and Class B Common Stock is
made concurrently in respect of outstanding shares of Class A Common
Stock and Class B Common Stock, respectively, with such rights
evidencing the right to acquire the same number of shares of each
class per outstanding share and including identical terms as the
rights distributed to holders of Class C Common Stock.
(b) Stock Combinations and Subdivisions. Subject to the rights of any
preferred stock outstanding from time to time and the provisions of Sections
5(A)(1)(b) and 5(A)(2)(b) hereof, the Class C Common Stock may be combined
or subdivided in such manner as may be permitted by applicable law;
provided, however, that if the Class C Common Stock is combined or
-------- -------
subdivided, a proportionate combination or subdivision of both the Class A
Common Stock and Class B Common Stock shall be made concurrently therewith.
(c) Voting. Except as otherwise expressly provided in this paragraph
(c) or as otherwise required by law, the holders of Class C Common Stock
shall have no right to
<PAGE>
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 9
- ------------------------------
vote on any matters to be voted on by the stockholders of the savings bank
(including, without limitation, any election or removal of the directors of
the savings bank). Notwithstanding the foregoing, (i) no amendment,
modification or waiver of any provision of this Amended and Restated Charter
S, in any such case which would adversely affect the rights of the Class C
Common Stock (including, without limitation, any increase or decrease in the
percentage of shares of outstanding Class C Common Stock required to approve
any such amendment, modification or waiver) will be effective without the
prior affirmative vote of the holders of a majority of shares of Class C
Common Stock at the time outstanding voting as a separate class with each
outstanding share of Class C Common Stock having one vote per share and (ii)
the holders of shares of Class C Common Stock shall be entitled to vote,
together with the holders of Class A Common Stock and Class B Common Stock,
all such holders of Class A Common Stock, Class B Common Stock and Class C
Common Stock voting together as a single class, on any dissolution of the
savings bank.
(d) Conversion Upon Certain Transfers.
(i) In connection with any Transfer of shares of Class C Common
Stock:
a. in a public offering registered with the OTS pursuant to
12 C.F.R. Part 563g (or any successor provision);
b. in a Transfer (otherwise than to the savings bank, the
Parent or a Controlled Subsidiary) in which the transferor shall
make reasonable efforts to prevent the sale to any single person
or group of persons acting in concert of a number of shares of
Class C Common Stock which, if converted into Class A Common
Stock, would represent more than two percent (2%) of the sum of
(1) the outstanding shares of Class A Common Stock and (2) if,
and only if, an interpretation is obtained from the Board of
Governors of the Federal Reserve System or the staff thereof to
the effect that the Class B Common Stock is considered for
Regulation Y purposes the same class as the Class A Common
Stock, the outstanding shares of Class B Common Stock; or
c. after any required federal regulatory approvals have been
obtained, in a single transaction to a third party who acquires
or has acquired at least a majority of the Class A Common Stock
(including
<PAGE>
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 10
- ------------------------------
shares of Class A Common Stock issuable on conversion of Class B
Common Stock and Class C Common Stock) without regard to the
Transfer of such Class C Common Stock,
the purchaser or transferee of such Class C Common Stock may
exchange such Class C Common Stock for Class A Common Stock by
presenting to the savings bank the certificates, duly endorsed to
the savings bank or in blank or accompanied by stock powers duly
executed to the savings bank or in blank, representing the shares of
Class C Common Stock, together with a certificate in form and
substance reasonably acceptable to the savings bank evidencing
compliance with Section 5(A)(3)(d)(i). Upon presentment of such
evidence as aforesaid, the savings bank shall deliver as promptly as
practicable to such purchaser or transferee certificates
representing such number of shares of Class A Common Stock as is
equal to the number of shares of Class C Common Stock so presented.
In case any certificate for shares of Class C Common Stock shall be
surrendered for Transfer of only a part of the shares represented
thereby, the savings bank shall deliver, as promptly as practicable
after such surrender, to or upon the written order of the
transferor, a certificate or certificates for the number of shares
of Class C Common Stock represented by such surrendered certificate
that have not been converted into shares of Class A Common Stock.
Notwithstanding the foregoing, in the event of a Regulatory Change,
the effect of which is to permit a holder of Class C Common Stock
which is a Regulated Stockholder to Transfer such shares in a
transaction that would permit the transferee to convert the Class C
Common Stock into Class A Common Stock, then this Section
5(A)(3)(d)(i) shall be deemed modified to permit such conversion
upon such Transfer.
(ii) Shares of Class C Common Stock which are not Transferred in
a Transfer satisfying the requirements of Section 5(A)(3)(d)(i)
shall not be convertible into Class A Common Stock by the purchaser
or transferee in such Transfer but such shares of Class C Common
Stock shall be convertible upon any subsequent Transfer that does
satisfy the requirements of such Section.
(4) Reservation of Shares. The savings bank shall at all times reserve and
keep available out of the authorized and unissued shares of Class A Common
Stock, solely for the purpose of effecting the conversion of the outstanding
shares of Class B Common Stock and Class C Common Stock, such number of shares
of Class A Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding Class B Common Stock and Class C
<PAGE>
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 11
- ------------------------------
Common Stock. If, notwithstanding the foregoing, at any time, the number of
authorized and unissued shares of Class A Common Stock shall not be sufficient
to effect conversion of the then outstanding shares of Class B Common Stock and
Class C Common Stock, the savings bank shall take such corporate action as may
be necessary to increase the number of authorized and unissued shares of Class A
Common Stock to such number as shall be sufficient for such purposes.
(5) Redemptions, etc. The savings bank will not directly or indirectly
redeem, purchase, acquire or take any other action affecting outstanding shares
of capital stock of the savings bank if such action will increase the percentage
of outstanding voting securities owned or controlled by any Regulated
Stockholder and its Affiliates (other than a stockholder which waives in writing
its rights under this Section 5(A)(5)), unless the savings bank gives written
notice (the "Deferral Notice") of such action to each Regulated Stockholder. The
savings bank will defer making any such redemption, purchase or other
acquisition, or taking any other action, for a period of 20 days (the "Deferral
Period") after giving the Deferral Notice in order to allow each Regulated
Stockholder to determine whether it wishes to take any action with respect to
the Common Stock it owns, controls or has the power to vote. The savings bank
will not directly or indirectly redeem, purchase, acquire or take any other
action affecting outstanding shares of Common Stock of the savings bank if such
action will increase over 24.9% the percentage of outstanding Common Stock owned
or controlled by any Regulated Stockholder and its Affiliates (other than a
stockholder which waives in writing its rights under this Section 5(A)(5)). The
provisions of this paragraph (5) shall not apply if, and only so long as, the
Class A Common Stock is listed on a national securities exchange or admitted for
quotation on the Nasdaq National Market or any successor thereto.
(6) Reorganizations, Reclassifications, Mergers, Etc. In the event there
shall be a capital reorganization, reclassification of the stock of the savings
bank, consolidation or merger of the savings bank with or into another Person or
sale or conveyance of all or substantially all of the assets of the savings bank
to any Person, the amount of any cash, securities or other assets, or any
combination thereof, issuable or distributable in respect of each share of
Common Stock of each class shall be identical.
(7) Certain Definitions. For purposes of this Section 5 the following
defined terms shall have the meanings specified.
"Affiliate" shall mean, with respect to any Person, any other Person
---------
that, directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person.
<PAGE>
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 12
- ------------------------------
"Beneficially Owned", when used in connection with any Person with
------------------
respect to any shares of Common Stock, shall mean shares of which such Person,
together with the Affiliates of such Person, would be deemed to be a beneficial
owner within the meaning of Rule 13d-3 or 13d-5 under the Exchange Act; and the
term "Beneficial Ownership" shall have a meaning correlative to the foregoing.
"CHC" shall mean Citadel Holding Corporation.
---
"CHC Shares" shall mean, with respect to any shares of Class B Common
----------
Stock Transferred, any of such shares that, immediately after such Transfer,
will be Beneficially Owned by CHC or any successor thereto or any Affiliate of
CHC or such successor or Group of which CHC or any such Affiliate or successor
is a member.
"Controlled Subsidiary" means any direct or indirect subsidiary of the
---------------------
Parent.
"Eligible Distributed Shares" shall mean, with respect to any shares of
---------------------------
Class B Common Stock, Beneficial Ownership of which is Transferred by CHC to a
stockholder of CHC by a dividend or distribution made to stockholders of CHC
generally, all or any portion of such shares as to which the Beneficial Owner
(or if there shall be more than one, all Beneficial Owners) immediately after
such distribution of such shares delivers to the savings bank a certificate in
form and substance reasonably satisfactory to the savings bank to the effect
that the shares of Class B Common Stock so distributed, or portion thereof, when
added to all other shares of Class B Common Stock Beneficially Owned immediately
prior to such distribution by such Beneficial Owner or Beneficial Owners and any
shares of Class B Common Stock Beneficially Owned immediately prior to such
distribution by all other members of any Group of which such Beneficial Owner
is, or Beneficial Owners are, members, do not exceed five percent of all
outstanding shares of Common Stock.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended.
"Group" shall mean any group of Persons formed for the purpose of
-----
acquiring, holding, voting or disposing of securities which would be required
under Section 13(d) of the Exchange Act and the rules and regulations thereunder
(as now in effect and based on present legal interpretations thereof) to file a
statement on Schedule 13D as a "person" within the meaning of Section 13(d)(3)
of the Exchange Act if such group beneficially owned securities of a class
representing more than 5% of all securities of such class then outstanding.
"Parent" means the ultimate Parent of a holder of Class C Common Stock.
------
<PAGE>
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 13
- ------------------------------
"Person" shall mean an individual, corporation, partnership, trust,
------
unincorporated organization, government or any agency or political subdivision
thereof or any other entity that may be treated as a person under applicable
law.
"Regulated Stockholder" shall mean any stockholder that is subject to
---------------------
the provisions of Regulation Y as a bank holding company or a subsidiary thereof
or to 12 C.F.R. Part 574 as a savings and loan holding company or a subsidiary
thereof and that holds shares of Common Stock of the savings bank, or shares
issued upon the conversion(s) of such shares.
"Regulatory Change" means, with respect to any Regulated Stockholder,
-----------------
(i) any change on or after the date this Amended and Restated Charter S is
declared effective by the OTS under United States federal laws or regulations
(including the Bank Holding Company Act and Regulation Y thereunder); (ii) the
adoption on or after such date of any interpretation or ruling applying to a
class of Persons including such Regulated Stockholder under any United States
federal laws or regulations by any court or governmental or regulatory authority
charged with the interpretation or administration thereof; or (iii) the
modification on or after such date of any agreement or commitment of any such
governmental or regulatory authority that is applicable to or binding upon such
Regulated Stockholder.
"Regulation Y" shall mean Regulation Y of the Board of Governors of the
------------
Federal Reserve System, 12 C.F.R. Part 225 (or any successor to such
Regulation).
"Transfer" shall mean to transfer, sell, assign, give, place in trust
--------
(voting or otherwise), transfer by operation of law or in any other way dispose
of, directly or indirectly, and whether or not voluntarily, any shares of Class
B Common Stock or Class C Common Stock of the savings bank; provided, however,
that no pledge, lien, security interest or other encumbrance shall be deemed to
be a Transfer unless and until such pledge, lien, security interest or
encumbrance has been foreclosed and any rights of redemption in connection
therewith have expired.
(8) Automatic Removal.
(a) Removal of Class B Common Stock Provisions. At the earliest time when no
shares of Class B Common Stock shall be outstanding, the following provisions of
Section 5 shall be deemed to have no effect and shall be modified as provided
below or deleted and removed from this Amended and Restated Charter to the
extent that such provisions have not already been modified or removed from this
Amended and Restated Charter S; provided, that such modification, deletion and
--------
removal shall not affect the conversion of any shares of Class B
<PAGE>
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 14
- ------------------------------
Common Stock into other securities of the savings bank or the validity of any
such securities:
(i) First paragraph, from "(b) fourteen million" through "('Class B
Common Stock')," and "and Class B Common Stock" in clause (c);
(ii) Second paragraph;
(iii) Third paragraph;
(iv) Fourth paragraph;
(v) Section 5(A)(1), ", shares of Class B Common Stock";
(vi) Section 5(A)(1)(a)(i), "Class B Common Stock and";
(vii) Section 5(A)(1)(a)(ii) from "both (1) a dividend payable"
through "Class B Common Stock per outstanding share and (2)";
(viii) Section 5(A)(1)(a)(iii)(a.) from "both (1) such distribution"
through "share of each class and (2)";
(ix) Section 5(A)(1)(a)(iii)(b.), both references to "Class B Common
Stock and" and ", respectively,";
(x) Section 5(A)(1)(b), "both the Class B Common Stock and" in the
first sentence;
(xi) Section 5(A)(1)(c), change "provisions" to "provision" and
"Sections" to "Section", remove "5(A)(2)(c) and";
(xii) Section 5(A)(2) in its entirety;
(xiii) Section 5(A)(3)(a)(i), "and the Class B Common Stock";
(xiv) Section 5(A)(3)(a)(ii), "both (1)" and from "and (2) a dividend
payable" through "Class B Common Stock per outstanding share";
(xv) Section 5(A)(3)(a)(iii), both references to "and Class B Common
Stock" and ", respectively,";
(xvi) Section 5(A)(3)(b), "both", "and the Class B Common Stock",
"and Section 5(A)(2)(b)" and the last letter of "Sections";
(xvii) Section 5(A)(3)(d)(i)(b.), "sum of (1) the" and from "and, if
and only if, the Class B Common Stock" through "Class A Common Stock, Class
B Common Stock";
(xviii) Section 5(A)(3)(d)(i)(c.), "Class B Common Stock and";
(xix) Section 5(A)(4), all references to "Class B and"; and
(xx) Section 5(A)(7), definitions of "Beneficially Owned", "CHC
Shares", "Exchange Act", "Excluded Shares" and "Group" and "Class B Common
Stock or" in the definition of "Transfer".
(xxi) Upon the consecutive renumbering of each remaining Section,
subsection and paragraph of this Amended and Restated Charter S and after
giving effect to each of the provisions of paragraphs (i) through (xix) of
this Section 5(A)(8)(a), this Section 5(A)(8)(a).
<PAGE>
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 15
- ------------------------------
(b) Removal of Class C Common Stock Provisions. At the earliest time when
no shares of Class C Common Stock shall be outstanding, the following provisions
of Section 5 shall be deemed to have no further effect and shall be modified as
provided below or deleted and removed from this Amended and Restated Charter to
the extent that such provisions have not already been modified or removed from
this Amended and Restated Charter S; provided, that such modification, deletion
--------
and removal shall not affect the conversion of any shares of Class C Common
Stock into other securities of the savings bank or the validity of any such
securities:
(i) First paragraph, "), (c) three million (3,000,000) shall be Class
C Common Stock, par value 5.01 per share ('Class C Common Stock"' and "and
Class B Common Stock" in clause (c);
(ii) Section 5(A)(1), "and shares of Class C Common Stock"; and, if
necessary, the word "and" shall be added before "shares of Class B Common
Stock" if such words have not been previously deleted pursuant to
5(A)(8)(a);
(iii) Section 5(A)(1)(a)(i), "and Class C Common Stock";
(iv) Section 5(A)(1)(a)(ii), "both (1)" and from "and (2) a dividend
payable" through "Class C Common Stock per outstanding share";
(v) Section 5(A)(1)(a)(iii)(a.), "both (1)" and from "and (2) a
distribution of rights"' through "and including identical terms";
(vi) Section 5(A)(1)(a)(iii)(b.), both references to "and Class C
Common Stock" and ", respectively,";
(vii) Section 5(A)(1)(b), "both" and "and the Class C Common Stock" in
the first sentence;
(viii) Section 5(A)(1)(c), change "provisions" to "provision" and
"Sections" to "Section", remove "and 5(A)(3)(c)";
(ix) Section 5(A)(2)(a)(i), "and the Class C Common Stock";
(x) Section 5(A)(2)(a)(ii), "both (1)" and from "and (2) a dividend
payable" through "Class C Common Stock per outstanding share";
(xi) Section 5(A)(2)(a)(iii), both references to "and Class C Common
Stock" and ", respectively,";
(xii) Section 5(A)(2)(b), "both" and "and the Class C Common Stock,"
the last letter of "Sections" and "and 5(A)(3)(b)";
(xiii) Section 5(A)(3) in its entirety;
(xiv) Section 5(A)(4), all references to "and Class C Common Stock"
and, if necessary, the word "and" shall be added before "Class B Common
Stock"; and
(xv) Section 5(A)(7), definition of "Regulation Y" and "or Class C
Common Stock" in the definition of "Transfer".
(xvi) Upon the consecutive renumbering of each remaining Section,
subsection and
<PAGE>
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 16
- ------------------------------
paragraph of this Amended and Restated Charter and after giving effect to
each of the provisions of paragraphs (i) through (xiv) of this Section
5(A)(8)(b), this Section 5(A)(8)(b).
(c) Removal of Remaining Classification Provisions. At the earliest time
when no shares of either Class B Common Stock or Class C Common Stock shall be
outstanding, the following provisions of Section 5 shall be deemed to have no
further effect and shall be modified as provided below or deleted and removed
from this Amended and Restated Charter to the extent that such provisions have
not already been modified or removed from this Amended and Restated Charter S;
provided, that such modification, deletion and removal shall not affect the
- --------
conversion of any shares of Class B Common Stock or Class C Common Stock into
other securities of the savings bank or the validity of any such securities:
(i) First paragraph, from "and, together with" through "'Common
Stock')";
(ii) Section 5(A)(1), "except as set forth in this Section 5";
(iii) Section 5(A)(1)(a)(i), "and paragraphs (a)(ii) and (iii) below"
and "provided that identical dividends or distributions are declared and
paid or made concurrently upon the";
(iv) Section 5(A)(1)(a)(ii);
(v) Section 5(A)(1)(a)(iii);
(vi) Section 5(A)(1)(b), other than the first sentence thereof;
(vii) Section 5(A)(1)(c), "and the provisions of Sections 5(A)(2)(c)
and 5(A)(3)(c) hereof"
(viii) Section 5(A)(4);
(ix) Section 5(A)(6);
(x) Any references to "Class A Common Stock" appearing anywhere in
this Amended and Restated Charter S shall be changed to read "Common Stock";
and
(xi) Upon the consecutive renumbering of each remaining Section,
subsection and paragraph of this Amended and Restated Charter S and after
giving effect to each of the provisions of Sections 5(A)(8)(a), 5(A)(8)(b)
and 5(A)(8)(c)(i)-(x), this Section 5(A)(8).
(9) Restrictions on Transfer of Common Stock. The Class A Common Stock and
Class C Common Stock sold pursuant to the Form OC may not be Transferred prior
to the date 30 days after the date on which this Amended and Restated Charter S
becomes effective, and the Class B Common Stock may not be Transferred prior to
the date 45 days after the date on which this Amended and Restated Charter S
becomes effective. Until the filing (the "10-K Filing Date") by the savings bank
with the OTS of the savings bank's Annual Report on Form 10-K for its next
fiscal year following the fiscal year ended December 31, 1993, such Class A
Common Stock and
<PAGE>
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 17
- ------------------------------
Class C Common Stock may be Transferred only in blocks of 100,000 shares or
more, except as described below. During the period referred to in the
immediately preceding sentence, the savings bank and transfer agent for the
Common Stock will not register any Transfer of Common Stock except where the
transferee provides written certification reasonably acceptable to the savings
bank that the shares of Common Stock are being Transferred only to the
Beneficial Ownership of an Affiliate of the Transferor or an investment account
under the control of the Transferor or an Affiliate of the Transferor. Any
purported Transfer of Common Stock in violation of this Section 5(A)(9) shall be
void, and the savings bank and the transfer agent for the Common Stock will not
register any Transfer of Common Stock in violation of this Section 5(A)(9).
Effective at 12:01 A.M. on the date immediately following the 10-K Filing Date,
this paragraph 9 shall be deemed to have no further effect and to be deleted
from this Amended and Restated Charter S.
(B) Serial Preferred Stock. Subject to the approval of the provisions of any
----------------------
supplementary sections by the OTS, and except as provided in this Section 5, the
board of directors of the savings bank is authorized by resolution or
resolutions from time to time adopted, to provide in supplementary sections
hereto for the issuance of serial preferred stock in series and to fix and state
the voting powers, designation, preferences and relative, participating,
optional or other special rights of the shares of each such series and the
qualifications, limitations and restrictions thereof, including, but not limited
to, determination of any of the following:
(1) The distinctive serial designation and the number of shares
constituting such series;
(2) The dividend rates or the amount of dividends to be paid on the
shares of such series, whether dividends shall be cumulative and, if so,
from which date or dates, the payment date or dates for dividends, and the
participating or other special rights, if any, with respect to dividends;
(3) The voting powers, full or limited, if any, of shares of such
series;
(4) Whether the shares of such series shall be redeemable and, if so,
the price or prices at which, and the terms and conditions on which, such
shares may be redeemed;
(5) The amount or amounts payable upon the shares of such series in the
event of voluntary or involuntary liquidation, dissolution or winding up of
the savings bank;
(6) Whether the shares of such series shall be entitled to the benefit
of a sinking or retirement fund to be applied to the purchase or redemption
of such shares, and if so entitled, the amount of such fund and the manner
of its application, including the price or prices at which such shares may
be redeemed or purchased through the application of such fund;
(7) Whether the shares of such series shall be convertible into, or
exchangeable
<PAGE>
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 18
- ------------------------------
for, shares of any other class or classes or of any other series of the same
or any other class or classes of stock of the savings bank and, if so
convertible or exchangeable, the conversion price or prices, or the rate or
rates of exchange, and the adjustments thereof, if any, at which such
conversion or exchange may be made, and any other terms and conditions of
such conversion or exchange;
(8) The price or other consideration for which the shares of such series
shall be issued; and
(9) Whether the shares of such series which are redeemed or converted
shall have the status of authorized but unissued shares of serial preferred
stock and whether such shares may be reissued as shares of the same or any
other series of serial preferred stock.
Each share of each series of serial preferred stock shall have the same
relative rights as and be identical in all respects with all the other
shares of the same series.
Prior to the issuance of any preferred shares of a series established by
a supplementary Charter section adopted by the board of directors, the
savings bank shall file with the OTS a dated copy of that supplementary
section of this Amended and Restated Charter establishing and designating
the series and fixing and determining the relative rights and preferences
thereof.
SECTION 6. Preemptive Rights. Holders of the capital stock of the savings
bank shall not be entitled to preemptive rights with respect to any shares of
the savings bank which may be issued.
SECTION 7. Liquidation Account. Pursuant to the requirements of the Rules
and Regulations for Insurance of Accounts of the Federal Savings and Loan
Insurance Corporation, the savings bank shall establish and maintain a
liquidation account for the benefit of its savings account holders as of
February 28, 1974 and as of June 30, 1981 ("eligible savers"). In the event of a
complete liquidation of the savings bank, it shall comply with such rules and
regulations with respect to the amount and the priorities on liquidation of each
of the savings bank's eligible savers' inchoate interest in the liquidation
account, to the extent it is still in existence. Provided, however, that an
eligible saver's inchoate interest in the liquidation account shall not entitle
such eligible saver to any voting rights at meetings of the savings bank's
stockholders.
SECTION 8. Directors. (A) The savings bank shall be under the direction of a
board of directors. The authorized number of directors shall be such number, not
less than seven or greater than fifteen (except when a greater number is
approved by the OTS), as may be fixed from time to time by the board of
directors pursuant to a resolution adopted by a majority of the entire board of
directors. (B) The directors shall be divided into three classes as nearly equal
in number as possible. The members of each class shall be elected for a term of
three years and until their
<PAGE>
Amended and Restated Charter S
Fidelity Federal Bank,
A Federal Savings Bank
Page 19
- ------------------------------
successors are elected and qualified. One class shall be elected by ballot
annually. (C) The right to cumulate votes in the election of directors shall not
exist with respect to the savings bank.
SECTION 9. Amendment of Charter. Except as provided in Section 5, no
amendment, addition, alteration, change, or repeal of this charter shall be
made, unless such is first proposed by the board of directors of the savings
bank, then preliminarily approved by the OTS, which preliminary approval may be
granted by the OTS pursuant to regulations specifying preapproved charter
amendments, and thereafter approved by the stockholders by a majority of the
total votes eligible to be cast at a legal meeting. Any amendment, addition,
alteration, change, or repeal so acted upon shall be effective upon filing with
the OTS in accordance with regulatory procedures or on such other date as the
OTS may specify in its preliminary approval.
FIDELITY FEDERAL BANK,
A FEDERAL SAVINGS BANK
By___________________________
Richard M. Greenwood
Chief Executive Officer
Attest:
__________________________
_____________________________
Date: _____________________ Corporate Secretary
Office of Thrift Supervision
OFFICE OF THRIFT SUPERVISION
Declared effective 10/20/94 By___________________________
Acting Director
<PAGE>
CERTIFICATE OF RESOLUTIONS ADOPTING THE FIRST
SUPPLEMENTAL SECTION TO SECTION 5(B) OF THE
AMENDED AND RESTATED CHARTER S
OF
FIDELITY FEDERAL BANK,
A FEDERAL SAVINGS BANK
Richard M. Greenwood certifies that:
1. He is the president of FIDELITY FEDERAL BANK, A FEDERAL SAVINGS BANK
(the "Bank").
2. The authorized number of shares of serial preferred stock is
10,000,000, none of which has been issued.
3. The Board of Directors of the Bank has duly adopted the following
resolution:
WHEREAS, the Amended and Restated Charter S of the Bank (the "Amended
Charter") authorizes the preferred stock of the Bank to be issued in series and
authorizes the Board of Directors to determine the rights, preferences,
privileges and restrictions granted to or imposed upon any wholly unissued
series of Preferred Stock and to fix the number of shares and designation of any
such series, now therefore it is
RESOLVED, that the Board of Directors does hereby establish a series of
Preferred Stock as follows:
THE FIRST SUPPLEMENTAL SECTION TO SECTION 5(B)
OF THE AMENDED AND RESTATED CHARTER S OF
FIDELITY FEDERAL BANK, A FEDERAL SAVINGS BANK
Section 1. Designation and Rank. The series created and provided for
--------------------
hereby is designated as the 12% Noncumulative Exchangeable Perpetual Preferred
Stock, Series A (the "Series A Preferred Stock"). Each share of the Series A
Preferred Stock shall be identical in all respects with each other share of the
Series A Preferred Stock. Shares of the Series A Preferred Stock shall have a
liquidation preference of $25 per share (the "Stated Value"). The Series A
Preferred Stock shall rank prior to the Bank's Common Stock and to all other
classes and series of equity securities of the Bank now or hereafter authorized,
issued or outstanding (the Common Stock and such other classes and series of
equity securities collectively may be referred to herein as the "Junior Stock"),
other than any classes or series of equity securities of the Bank ranking on a
parity with (the "Parity Stock") or senior to (the "Senior Stock") the Series A
Preferred Stock as to
<PAGE>
dividend rights or rights upon liquidation, winding up or dissolution of the
Bank. The Series A Preferred Stock shall be junior to all outstanding debt of
the Bank, including, without limitation, deposits of the Bank. The Series A
Preferred Stock shall be subject to creation of Senior Stock, Parity Stock and
Junior Stock to the extent not prohibited by the Amended Charter, subject to the
approval of the holders of the outstanding shares of Series A Preferred Stock to
the extent required pursuant to Section 9 hereof.
Section 2. Number. The number of authorized shares of the Series A
------
Preferred Stock shall initially consist of 2,070,000 shares. The number of such
authorized shares of Series A Preferred Stock shall be automatically reduced
(but not below 1,800,000 shares) to the extent that the over-allotment option
granted by the Bank pursuant to the Underwriting Agreement dated November 8,
1995 between the Bank and Friedman, Billings, Ramsey & Co. Inc. is not
exercised, such reduction to become effective upon expiration of such over-
allotment option pursuant to its terms. The number of authorized shares of the
Series A Preferred Stock may be increased by the further resolution duly adopted
by the Board of Directors of the Bank or a duly authorized committee thereof.
The number of authorized shares of the Series A Preferred Stock shall not at any
time be decreased below the aggregate number of such shares then outstanding.
Section 3. Dividends.
---------
(a) The holders of Series A Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds at the
time legally available therefor, noncumulative dividends at the rate of $3.00
per annum per share (subject to reduction as provided in Section 6(a) hereof),
and no more. Such dividends shall accrue without interest (including any
interest, sum of money in lieu of interest or other property paid on account of
any dividend payment or payments which may be in arrears) from the date of
original issuance and shall be payable in cash quarterly in arrears on February
15, May 15, August 15 and November 15 of each year commencing February 15, 1996
(the "Dividend Payment Dates") (except that if any such date is not a Business
Day, then such dividend shall be payable on the next Business Day following such
Dividend Date, provided that, for the purposes of computing such dividend
--------
payment, no interest or sum in lieu of interest shall accrue from such Dividend
Payment Date to the next Business Day following such Dividend Payment Date) to
holders of record as they appear in the securities register of the Bank at the
close of business on January 30, April 30, July 30 or
-2-
<PAGE>
October 30, as the case may be, next preceding each Dividend Payment Date (each,
a "Record Date"). For purposes hereof, the term Business Day shall mean any day
(except a Saturday or Sunday or any day on which banking institutions are
authorized or required to close in Los Angeles, California or New York, New
York). The amount of dividends payable per share of Series A Preferred Stock for
each quarterly dividend period shall be computed by dividing the annual dividend
amount by four. The amount of dividends payable for the initial dividend period
and any period shorter than a full quarterly dividend period shall be computed
on the basis of a 360-day year of twelve 30-day months. Dividends paid on shares
of Series A Preferred Stock in an amount less than the total amount of such
dividends at the time payable on such shares shall be allocated pro rata among
all such shares at the time outstanding.
No dividends or other distributions, other than dividends payable
solely in shares of Common Stock or other Junior Stock shall be declared, paid
or set apart for payment on, and no purchase, redemption or other acquisition
shall be made by the Bank of, any shares of Common Stock or other Junior Stock
(or any payment made in respect of or made available to a sinking fund for the
redemption of any shares of such Junior Stock) unless and until all unpaid
dividends on the Series A Preferred Stock shall have been paid or declared and
set apart for payment for the current quarterly dividend period.
If at any time any dividend on any Senior Stock shall be in default,
in whole or in part, then (except to the extent allowed by the terms of such
Senior Stock) no dividend shall be paid or declared and set apart for payment on
the Series A Preferred Stock unless and until all accrued and unpaid dividends
with respect to such Senior Stock, including the full dividends for the then-
current dividend period, shall have been paid or declared and set apart for
payment, without interest. No shares of Parity Stock shall be issued unless the
dividend payment dates for such shares are the same dates, and only the same
dates, as the Dividend Payment Dates. No full dividends shall be paid or
declared and set apart for payment on any class or series of Parity Stock for
any period unless full dividends have been, or contemporaneously are, paid or
declared and set apart for such payment on the Series A Preferred Stock for
payment at the same time. No full dividends shall be paid or declared and set
apart for any period unless full dividends have been, or contemporaneously are,
paid or declared and set apart for payment on the Parity Stock for the dividend
period terminating on the date of payment of such full dividends. When
dividends are not paid in full upon the Series A Preferred Stock and the Parity
Stock, all the
-3-
<PAGE>
dividends paid or declared and set aside for payment upon shares of Series A
Preferred Stock and the Parity Stock shall be paid or declared and set aside for
payment pro rata so that the amount of dividends paid or declared and set aside
for payment per share on the Series A Preferred Stock and the Parity Stock shall
in all cases bear to each other the same ratio that accrued and unpaid dividends
per shares on the shares of Series A Preferred Stock and the Parity Stock bear
to each other.
(b) The Bank shall not permit any subsidiary to purchase or otherwise
acquire for consideration any shares of stock of the Bank unless the Bank could,
under paragraph (a) of this Section 3, purchase or otherwise acquire such shares
at such time and in such manner.
(c) Any reference to "distribution" contained in this Section 3 shall
not be deemed to include any distribution made in connection with any
liquidation, dissolution or winding up of the Bank whether voluntary or
involuntary.
Section 4. Redemption.
----------
(a) Optional Redemption. The Series A Preferred Stock is perpetual
-------------------
and is not redeemable prior to November 15, 2005. The Series A Preferred Stock
is (subject to applicable regulatory limitations, including restrictions on
capital distributions) redeemable by the Bank at its option at any time, and
from time to time, on or after November 15, 2005, in whole or in part, at the
redemption prices set forth below in cash, plus an amount in cash equal to
accrued but unpaid dividends for the then-current dividend period up to, but
excluding, the date fixed for redemption (the "Redemption Date") without the
accumulation of unpaid dividends for prior dividend periods (subject to the
right of the holder of record on the record date for the payment of a dividend
to receive the dividend due on the corresponding Dividend Payment Date, or the
next Business Day thereafter, as the case may be):
<TABLE>
<CAPTION>
If redeemed during the
12-month period Redemption
beginning November 15, Price
- ------------------------- ----------
<S> <C>
2005 $27.50
2006 27.00
2007 26.50
2008 26.00
2009 25.50
2010 and thereafter 25.00
</TABLE>
-4-
<PAGE>
The applicable amount payable upon redemption as provided in the immediately
preceding sentence is hereinafter referred to as the "Redemption Price."
The aggregate Redemption Price payable to each holder of record of
shares of Series A Preferred Stock to be redeemed will be rounded to the nearest
cent ($0.01).
If fewer than all of the outstanding shares of Series A Preferred
Stock are to be redeemed, the shares to be redeemed shall be selected pro rata
or by lot or by such other method as the Board of Directors of the Bank, in its
sole discretion, determines to be equitable.
(b) Notice, etc. (i) Notice of every redemption of shares of Series
------------
A Preferred Stock pursuant to this Section 4 shall be mailed by first class
mail, postage prepaid, addressed to the holders of record of the shares to be
redeemed at their respective last addresses as they shall appear on the stock
register of the Bank. Such mailing shall be at least 45 days and not more than
60 days prior to the Redemption Date. Each such notice of redemption shall
specify the Redemption Date, the Redemption Price, the place or places of
payment and that payment will be made upon the later of the Redemption Date or
presentation and surrender of the shares of Series A Preferred Stock. Any
notice which is mailed as herein provided shall be conclusively presumed to have
been duly given, whether or not the holder of the Series A Preferred Stock
receives such notice; and failure to give such notice by mail, or any defect in
such notice, to the holders of any shares designed for redemption shall not
affect the validity of the proceedings for the redemption of any other shares of
Series A Preferred Stock.
(ii) If such notice of redemption shall have been duly given and if on
or before the Redemption Date specified therein the funds necessary for such
redemption shall have been deposited by the Bank with the bank or trust company
hereinafter referred to in trust for the pro rata benefit of the holders of the
shares called for redemption, then, notwithstanding that any certificate for
shares so called for redemption shall not have been surrendered for
cancellation, from and after the Redemption Date, all shares so called for
redemption shall no longer be deemed to be outstanding, dividends shall cease to
accrue thereon and all rights with respect to such shares shall forthwith cease
and terminate, except only the right of the holders thereof to receive from such
bank or trust company at any time on and after the Redemption Date the funds so
deposited, without interest. The aforesaid bank or trust company shall be
organized and in good standing under the laws of the United States of America or
of any State, shall have capital,
-5-
<PAGE>
surplus and undivided profits aggregating at least $50,000,000 according to its
last published statement of financial condition, and shall be identified in the
notice of redemption. Any interest accrued on such funds shall be paid to the
Bank from time to time. Any funds so set aside or deposited, as the case may be,
and unclaimed at the end of three years from such Redemption Date shall, to the
extent permitted by law, be released or repaid to the Bank, after which
repayment the holders of the shares so called for redemption shall look only to
the Bank for payment thereof.
(c) Status of Redeemed Shares. Shares of the Series A Preferred
-------------------------
Stock which have been redeemed shall, after such redemption, have the status of
authorized but unissued shares of Preferred Stock of the Bank, without
designation as to series, until such shares are once more designated as part of
a particular series by or on behalf of the Board of Directors.
Section 5. No Sinking Fund. The shares of Series A Preferred Stock,
---------------
shall not be subject to mandatory redemption or the operation of any purchase,
retirement, or sinking fund.
Section 6. Exchange.
--------
(a) If the Bank forms or is acquired by a holding company (the
"Holding Company"), the Holding Company may elect to make the Series A Preferred
Stock exchangeable at the option of the holders thereof on any date following a
date to be fixed by the Holding Company (the "Exchange Date"), for senior notes
of the Holding Company (the "Senior Notes") to be issued under an Indenture (the
"Indenture") between the Holding Company and such party as may reasonably be
selected by the Board of Directors to then act as trustee under the Indenture
(the "Trustee"), which shall be in substantially the form filed as an exhibit to
the Bank's Form OC (OTS Docket No. 5770) as filed with the OTS and as amended as
of November 8, 1995, completed as set forth therein and with such changes as may
be required by law or usage. Holders of the outstanding shares of Series A
Preferred Stock will be entitled to receive $1,000 principal amount of the
Senior Notes in exchange for each 40 shares of Series A Preferred Stock held by
them at the time of exchange. Dividends on the Series A Preferred Stock will be
payable following the Exchange Date at a reduced annual rate of $2.50 per share.
The Holding Company shall send to each holder of the Series A Preferred Stock
notice of the Exchange Date not less than 30 days nor more than 60 days prior to
the Exchange Date at the address of such holder shown on the books of the Bank.
Such notice shall state:
-6-
<PAGE>
(i) the Exchange Date, (ii) that shares of Series A Preferred Stock will be
exchanged for Senior Notes without any further action on the part of the holder
unless such holder returns an enclosed election form stating that none of such
holder's shares of Series A Preferred Stock is to be exchanged for Senior Notes,
(iii) the place where shares of Series A Preferred Stock are to be surrendered
for exchange and (iv) the arrangements for the delivery of new securities
representing the Senior Notes.
(b) After the occurrence of the Exchange Date, any holder of shares of
Series A Preferred Stock desiring to exchange such shares for Senior Notes shall
surrender the certificate or certificates for such shares of Series A Preferred
Stock at the office of the transfer agent for the Series A Preferred Stock (the
"Transfer Agent"), which certificate or certificates, if the Bank shall so
require, shall be duly endorsed to the Bank or in blank, or accompanied by
proper instruments of transfer to the Bank or in blank, accompanied by
irrevocable written notice to the Bank and the Holding Company that the holder
elects so to exchange such shares of Series A Preferred Stock and specifying the
name or names in which a certificate or certificates for Senior Notes are to be
issued. Any such election by a holder of shares of Series A Preferred Stock may
be made with respect to all, but not less than all, of the shares of Series A
Preferred Stock held by such holder or, if the number of such shares is not a
multiple of 40, the nearest multiple of 40 shares that is less than the
aggregate number of shares held by such holder.
The Bank covenants that, as soon as practicable after such deposit of
certificates for Series A Preferred Stock accompanied by the written notice of
exchange and compliance with any other conditions herein contained, there shall
be delivered at such office of such Transfer Agent to the person for whose
account such shares of Series A Preferred Stock were so surrendered, or his
nominee or nominees, certificates for the principal amount of Senior Notes to
which he shall be entitled as aforesaid. Subject to the following provisions of
this paragraph, such exchange shall be deemed to have been made as of the date
of such surrender of the shares of Series A Preferred Stock to be exchanged, and
the person or persons entitled to received the Senior Notes deliverable upon
exchange of such Series A Preferred Stock shall be treated for all purposes as
the holder or holders of such Senior Notes on such date.
(c) In the case of any shares of Series A Preferred Stock which is
surrendered for exchange after any record date established by the Board of
Directors with respect to the payment of a dividend on the Series A
-7-
<PAGE>
Preferred Stock and on or prior to the opening of business on the next
succeeding Dividend Payment Date (or, if such Dividend Payment Date is not a
Business Day, before the close of business on the next Business Day following
such Dividend Payment Date), the dividend due on such date shall be payable on
such date to the holder of record of such shares as of such preceding record
date notwithstanding such exchange. Shares of Series A Preferred Stock
surrendered for exchange during the period from the close of business on any
record date established by the Board of Directors with respect to the payment of
a dividend on the Series A Preferred Stock immediately preceding any Dividend
Payment Date to the opening of business on such Dividend Payment Date (or, if
such Dividend Payment Date is not a Business Day, before the opening of business
on the next Business Day following such Dividend Payment Date), except in the
case of shares called for redemption on a Redemption Date within such period,
shall be accompanied by payment in New York Clearing House funds or other funds
acceptable to the Bank in an amount equal to the dividend payable on such
Dividend Payment Date on the shares of Series A Preferred Stock being
surrendered for exchange. The dividend with respect to a share of Series A
Preferred Stock called for redemption on a Redemption Date during the period
from the close of business on any record date established by the Board of
Directors with respect to the payment of a dividend on the Series A Preferred
Stock next preceding any Dividend Payment Date to the opening of business on
such Dividend Payment Date (or, if such Dividend Payment Date is not a Business
Day, before the opening of business on the next Business Day following such
Dividend Payment Date) shall be payable on such Dividend Payment Date (or, if
such Dividend Payment Date is not a Business Day, before the opening of business
on the next Business Day following such Dividend Payment Date) to the holder of
record of such share on such record date notwithstanding the exchange of such
share of Series A Preferred Stock after such record date and prior to the
opening of business on such Dividend Payment Date (or, if such Dividend Payment
Date is not a Business Day, before the opening of business on the next Business
Day following such Dividend Payment Date) and the holder exchanging such shares
of Series A Preferred Stock need not include a payment in an amount equal to
such dividend upon surrender of such shares for exchange. Except as provided in
this paragraph, no payment or adjustment shall be made upon any exchange on
account of any dividends on shares of Series A Preferred Stock surrendered for
exchange.
(d) Exchange of shares of Series A Preferred Stock for Senior Notes
may be effected only in lots of 40 shares, and in no event shall the Holding
Company be
-8-
<PAGE>
obligated to issue a certificate representing less than $1,000 in principal
amount of Senior Notes.
(e) Series A Preferred Stock shall not be exchangeable for the Senior
Notes unless all dividends accrued on the Series A Preferred Stock for the
dividend period in which the Exchange Date is to occur (and, if the Exchange
Date is not a Dividend Payment Date, for the prior dividend period) have been
paid or set aside for payment. No such exchange of Senior Notes for shares of
Series A Preferred Stock shall be made unless (A) at the time of the exchange,
the Holding Company meets the definitional characteristics specified in the
Indenture; (B) the Senior Notes have been registered under the Securities Act of
1933, as amended, unless an exemption from registration is available; (C) the
Indenture shall have been executed and delivered by the Holding Company and the
Trustee; (D) immediately following the exchange, no default or event of default
will exist under the Indenture; and (E) the Trustee has received an opinion (in
the form specified in the Indenture) to the effect that the Senior Notes will,
when issued in accordance with the terms of the Indenture, be legal, valid,
binding and enforceable obligations of the Holding Company in accordance with
their terms and that all necessary corporate and governmental approvals,
including without limitation any securities registrations, for the issuance of
the Senior Notes have been obtained.
(f) From and after the date of any such exchange, the rights of the
holders of Series A Preferred Stock so exchanged as stockholders of the Bank
shall cease (except as set forth above), and the person or persons entitled to
receive the Senior Notes issuable upon such exchange shall be treated as the
holder or holders of such Senior Notes.
Section 7. Repurchase.
----------
(a) Right to Require Repurchase. In the event that a Change of
---------------------------
Control (as hereinafter defined) shall occur, then each holder of Series A
Preferred Stock shall have the right, at such holder's option, to require the
Bank to repurchase, and upon the exercise of such right the Bank shall
repurchase, all or a specified number of such holder's Series A Preferred Stock
on the date (the "Repurchase Date") that is 25 days after the date of the Bank
Notice (as defined below) for cash at a purchase price equal to 110% of the
Stated Value of such shares of Series A Preferred Stock to be repurchased (the
"Repurchase Price"), plus dividends accrued and unpaid for the then current
quarterly dividend period (without accumulation of accrued and unpaid dividends
for prior periods) to the Repurchase Date, unless the Repurchase Date shall
occur prior to the opening of business
-9-
<PAGE>
on a Divided Payment Date and after the close of business on the corresponding
Record Date.
(b) Notices; Method of Exercising Repurchase Right, Etc.
----------------------------------------------------
(1) Unless the Redemption Date shall have occurred in connection with
the Bank's call for redemption of all of the shares of Series A Preferred Stock,
on or before the 45th day after the occurrence of a Change of Control, the Bank
shall mail to all holders of shares of Series A Preferred Stock a notice (the
"Bank Notice") of the occurrence of the Change of Control and of the repurchase
right set forth herein arising as a result thereof. The Bank shall also cause a
copy of such notice of a repurchase right, or a summary of the information
contained therein, to be published in a newspaper of general circulation in The
City of New York.
Each notice of a repurchase right shall state:
(a) the Repurchase Date,
(b) the date by which the repurchase right must be exercised,
(c) the Repurchase Price, and
(d) a description of the procedure which a holder of shares of Series
A Preferred Stock must follow to exercise a repurchase right.
No failure of the Bank to give the foregoing notices or defect therein
shall limit the right of any holder of shares of Series A Preferred Stock to
exercise a repurchase right or affect the validity of the proceedings for the
repurchase of such shares.
If any of the foregoing provisions are inconsistent with applicable
law, such law shall govern.
(2) To exercise a repurchase right, a holder of shares of Series A
Preferred Stock shall deliver to the Bank on or before the 15th day after the
date of the Bank Notice (i) written notice of such holder's exercise of such
right, which notice shall set forth the name of such holder, the number of
shares of Series A Preferred Stock to be repurchased and a statement that an
election to exercise the repurchase right is being made thereby, and (ii) the
shares of Series A Preferred Stock with respect to which the repurchase right is
being exercised, duly endorsed for
-10-
<PAGE>
transfer to the Bank. Such written notice shall be irrevocable.
(3) In the event a repurchase right shall be exercised in accordance
with the terms hereof, the Bank shall pay or cause to be paid the Repurchase
Price in cash to the holder on the Repurchase Date, plus dividends accrued and
unpaid for the then current quarterly dividend period (without accumulation of
accrued and unpaid dividends for prior periods) to the Repurchase Date;
provided, however, that in the event the Repurchase Date shall occur prior to
- -------- -------
the opening of business on a Dividend Payment Date and after the close of
business on the corresponding Record Date, the dividend payable on such Dividend
Payment Date shall be payable to the holder of such shares registered as such on
the relevant Record Date and no accrued and unpaid dividends shall be payable
upon repurchase of such shares. The aggregate Repurchase Price payable to such
holder will be rounded to the nearest cent ($0.01) with respect to the shares of
Series A Preferred Stock as to which the repurchase right has been exercised.
(c) Status of Repurchased Shares. Shares of the Series A Preferred
----------------------------
Stock which have been repurchased shall, after such repurchase, have the status
of authorized but unissued shares of Preferred Stock of the Bank, without
designation as to series, until such shares are once more designated as part of
a particular series by or on behalf of the Board of Directors.
(d) Certain Definitions.
-------------------
For purposes of this Section 7,
(1) the term "beneficial owner" shall be determined in accordance
with Rule 13d-3, as in effect on the date of the original execution of this
Certificate of Designations, promulgated by the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934, as amended;
(2) the term "Person" shall include any syndicate or group which
would be deemed to be a "person" under Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended, as in effect on the date of the original
execution of this Certificate of Designations, other than the Bank, any
subsidiary of the Bank or any employee benefit plan of the Bank; and
(3) a "Change of Control" will be deemed to have occurred at such
time as:
-11-
<PAGE>
(i) any Person is or becomes the beneficial owner, directly or
indirectly, through a purchase, merger or other acquisition transaction or
series of transactions, of shares of capital stock of the Bank entitling
such Person to exercise 50% or more of the total voting power of all shares
of capital stock of the Bank entitled to vote generally in the election of
directors; or
(ii) there occurs any consolidation of the Bank with, or merger
of the Bank into, any other Person, any merger of another Person into the
Bank, or any sale or transfer of all or substantially all of the assets of
the Bank to another Person (other than a merger which does not result in
any reclassification, conversion, exchange or cancellation of outstanding
shares of any class of the Bank's capital stock);
provided, however, that no Change of Control shall be deemed to have occurred
- -------- -------
under paragraphs (i) or (ii) above unless and until the transaction that would
result in the Change of Control has been approved by the Board of Directors of
the Bank and such transaction, and the exercise by the holders of the Preferred
Stock of their right to require repurchase of the Series A Preferred Stock
hereunder with respect thereto, has been approved by the Office of Thrift
Supervision (together with any successor agency, the "OTS") after receipt by the
OTS of written notice thereof from the Bank given no later than the business day
immediately following the day on which the Board of Directors of the Bank
approves the transaction. In the event the OTS does not approve the exercise of
such repurchase right within 30 days after the date the OTS receives such notice
from the Bank, one or more holders of shares of the Series A Preferred Stock may
request from the OTS a reconsideration of such determination (pursuant to
applicable procedures of the OTS with respect thereto) within 60 days (or such
longer period as may be required or permitted by the OTS) of such failure to
approve such exercise. In the event the OTS disapproves the repurchase of the
Series A Preferred Stock hereunder and does not approve such repurchase upon any
such subsequent request for reconsideration, the right of the holders to require
such repurchase shall irrevocably terminate with respect to such Change of
Control, but the right of the holders of the Series A Preferred Stock to require
such repurchase, on the terms and subject to the conditions contained herein
(including, without limitation, the requirements contained herein for OTS
approval), in the event of any subsequent Change of Control shall not be
affected thereby.
-12-
<PAGE>
Section 8. Liquidation Rights.
------------------
(a) Liquidation Preference. In the event of any voluntary or
----------------------
involuntary liquidation, dissolution or winding up of the affairs of the Bank,
the holders of outstanding shares of the Series A Preferred Stock shall be
entitled, before any payment or distribution shall be made on stock of the Bank
ranking junior to the Series A Preferred Stock as to rights upon liquidation,
dissolution or winding-up of the Bank, to be paid in full an amount equal to the
Stated Value per share, plus an amount equal to all accrued but unpaid dividends
for the then-current dividend period (without accumulation of accrued and unpaid
dividends for prior dividend periods), and no more; provided, however, that such
-------- -------
rights shall accrue to the holders of Series A Preferred Stock only in the event
that the Bank's payments with respect to the liquidation preferences of the
holders of the Senior Stock and the rights of the Parity Stock are fully met.
After payment of the full amount of such liquidation distribution, the holders
of the Series A Preferred Stock shall not be entitled to any further
participation in any distribution of assets of the Bank.
(b) Insufficient Assets. (i) If, upon any voluntary or involuntary
-------------------
liquidation, dissolution or winding up of the Bank, the assets of the Bank, or
proceeds thereof, distributable among the holders of the shares of the Series A
Preferred Stock and any other stock of the Bank ranking, as to liquidation,
dissolution or winding up, on a parity with the Series A Preferred Stock
(collectively, "Liquidation Parity Stock"), shall be insufficient to pay in full
the preferential amount set forth in subparagraph (a) above and liquidating
payments on all Liquidation Parity Stock, then assets of the Bank remaining
after the distribution to holders of any Senior Stock then outstanding of the
full amounts to which they may be entitled, or the proceeds thereof, shall be
distributed among the holders of the Series A Preferred Stock and all such
Liquidation Parity Stock ratably in accordance with the respective amount which
would be payable on such shares of Series A Preferred Stock and any such
Liquidation Parity Stock if all amounts payable thereon were paid in full
(which, in the case of such other stock, may include accumulated dividends).
(ii) In the event of any such liquidation, dissolution or winding up
of the Bank, whether voluntary or involuntary, unless and until payment in full
is made to the holders of all outstanding shares of the Series A Preferred Stock
of the liquidation, distribution to which they are entitled pursuant to
subparagraph (a) above, no dividend or other distribution shall be made to the
holders of any stock of the Bank ranking junior to the Series A Preferred Stock
-13-
<PAGE>
as to rights upon liquidation dissolution or winding-up of the Bank and no
purchase, redemption or other acquisition for any consideration by the Bank
shall be made in respect of any Junior Stock, other than any such dividend or
distribution consisting solely of, or purchase, redemption or acquisition for
consideration consisting solely of, shares of Junior Stock.
(c) Definition. Neither the consolidation nor the merger of the Bank
----------
into or with another corporation or corporations shall be deemed to be a
liquidation, dissolution or winding up of the Bank within the meaning of this
Section 8.
Section 9. Voting Rights.
-------------
(a) No Vote Except as Provided. Except as otherwise expressly
--------------------------
provided herein or required by law, no holder of shares of Series A Preferred
Stock shall have or possess any right to notice of shareholders' meetings or any
vote (whether at such a meeting or in writing without a meeting) with respect to
any shares of Series A Preferred Stock held by such holder on any matter.
(b) Election of Directors. (i) If the Bank fails to pay full
---------------------
quarterly dividends on the Series A Preferred Stock for each of two consecutive
dividend periods, the holders of the Series A Preferred Stock shall have the
exclusive right (voting separately as a class together with the holders of any
Parity Stock upon which like voting rights have been conferred and are then
exercisable) to elect two directors (subject to compliance with any requirement
for regulatory approval of, or non-objection to, persons to serve as directors
of the Bank) for newly created directorships of the Board of Directors, each
director to be in addition to the number of directors constituting the Board of
Directors immediately prior to the vesting of such right (the remaining
directors to be elected by the other class or classes of stock entitled to vote
therefor), at each meeting of shareholders duly held for the purpose of electing
directors. At any time when the right to elect such directors is vested (but
has not yet terminated), the Bank may call a special meeting of the holders of
the Series A Preferred Stock to fill such directorships, and upon the written
request of the holders of not less than 20% of such stock made in accordance
with the terms of the Series A Preferred Stock, the Bank is obligated to do so.
The right of the holders of the Series A Preferred Stock to elect directors
shall continue until dividends on the Series A Preferred Stock have been paid
for two consecutive dividend periods, at which time such voting rights of the
holders of the Series A Preferred
-14-
<PAGE>
Stock shall, without further action, terminate, subject to revesting in the
event of each and every subsequent failure of the Bank to pay such dividends for
two consecutive dividend periods as described above.
(ii) The term of office of all directors elected by the holders of the
Series A Preferred Stock in office at any time when the aforesaid voting right
is vested in such holders shall terminate upon the election of their successors
at any meeting of shareholders for the purpose of electing directors; provided,
--------
however, that, without further action and unless otherwise required by law, any
- -------
directors who shall have been elected by the holders of the Series A Preferred
Stock as provided herein may be removed at any time, either with or without
cause, by the affirmative vote of the holders of record of a majority of the
outstanding shares of the Series A Preferred Stock (voting separately as a class
together with the holders of any Parity Stock upon which like voting rights have
been conferred and are then exercisable) at a duly held shareholders' meeting.
Upon termination of the aforesaid voting right in accordance with the foregoing
provisions, the term of office of all directors elected by the holders of the
Series A Preferred Stock pursuant thereto then in office shall, without further
action, terminate unless otherwise required by law. Upon such termination the
number of directors constituting the Board of Directors shall, without further
action, be reduced by two, subject always to the increase of the number of
directors pursuant to the foregoing provisions in case of the future vesting of
the right of such holders of the Series A Preferred Stock to elect directors as
provided above.
(iii) Unless otherwise required by law, in the case of any vacancy
occurring in the directorships so created, the remaining director who shall have
been elected to such a directorship may appoint a successor to hold office for
the unexpired term of the director whose place shall be vacant, and if all
directors so elected by the holders of the Series A Preferred Stock shall cease
to serve as directors before their term shall expire, the holders of the Series
A Preferred Stock then outstanding may, at a meeting of such holders duly held
(voting separately as a class together with the holders of any Parity Stock upon
which like voting rights have been conferred and are then exercisable) elect
successors to hold office for the unexpired terms of the directors whose places
shall be vacant.
(iv) The directors elected by the holders of the Series A Preferred
Stock in accordance with the foregoing provisions shall be entitled to one vote
per director on any
-15-
<PAGE>
matter on which the directors not so elected are so entitled.
(c) Certain Actions. So long as any shares of the Series A Preferred
---------------
Stock shall remain outstanding, the affirmative vote of the holders of at least
66 2/3% of the votes of the shares of the Series A Preferred Stock at the time
outstanding, acting as a separate series, given in person or by proxy, either in
writing without a meeting or by vote at any meeting called for the purpose,
shall be necessary for effecting or validating:
(i) The authorization, creation, issuance or sale of any shares of any
class or series of capital stock of the Bank which shall rank senior to the
Series A Preferred Stock as to dividends or upon liquidation, dissolution or
winding-up or which possesses rights to vote separately as one class with the
Series A Preferred Stock on the basis of more than one vote for each $25 of
liquidation preference thereof (excluding any liquidation preference for accrued
but unpaid dividends), or to issue or authorize any obligation or security
convertible into, or evidencing a right to purchase, such a security;
(ii) Any amendment, alteration or repeal of any of the provisions of
the Amended Charter in any manner which adversely affects the powers,
preferences, voting power, dividend rights or other rights or privileges of the
Series A Preferred Stock; provided, however, that no vote of the holders of the
-------- -------
Series A Preferred Stock will be required for any of the following, which are
deemed not to adversely affect the powers, preferences, voting power, dividend
rights or other rights or privileges of the Series A Preferred Stock: (A) an
amendment of the Amended Charter which increases the number of shares of
preferred stock which the Bank is authorized to issue, (B) the creation or
issuance of Parity Stock or stock ranking junior to the Series A Preferred Stock
as to dividends and as to rights upon liquidation, winding up and dissolution of
the Bank and (C) a merger or consolidation of the Bank with or into any other
entity or a sale, transfer or lease of all or any part of the assets of the Bank
to any other entity.
(d) One Vote per Share. In connection with any matter on which the
------------------
holders of the Series A Preferred Stock are entitled to vote as one class or
otherwise pursuant to law or the provisions of the Amended Charter, including,
without limitation, the election of directors as set forth above, each holder of
Series A Preferred Stock shall be entitled to one vote for each share of the
Series A Preferred Stock held by such holder.
-16-
<PAGE>
Section 10. Exclusion of Other Rights. Except as may otherwise be
-------------------------
required by law, the shares of Series A Preferred Stock shall not have any
preferences or relative, participating, optional or other special rights, other
than those specifically set forth in this resolution (as such resolution may be
amended from time to time) and in the Amended Charter of the Bank, as amended.
Without limitation of the foregoing, the shares of Series A Preferred Stock
shall have no preemptive or subscription rights.
Section 11. Headings of Subdivisions. The headings of the various
------------------------
subdivisions hereof are for convenience of reference only and shall not affect
the interpretation of any of the provisions hereof.
Section 12. Severability of Provisions. If any right, preference or
--------------------------
limitation of the Series A Preferred Stock set forth in this resolution (as such
resolution may be amended from time to time) is invalid, unlawful or incapable
of being enforced by reason of any rule of law or public policy, all other
rights, preferences and limitations set forth in this resolution (as so amended)
which can be given effect without the invalid, unlawful or unenforceable right,
preference or limitation shall, nevertheless, remain in full force and effect,
and no right, preference or limitation herein set forth shall be deemed
dependent upon any other such right, preference or limitation unless so
expressed herein.
-17-
<PAGE>
FIDELITY FEDERAL BANK,
a Federal Savings Bank
Dated: November 8, 1995 By:___________________________
Name: Richard M. Greenwood
Title: President
Attest:
Dated: November 8, 1995 By:___________________________
Name: Godfrey B. Evans
Title: Secretary
OFFICE OF THRIFT SUPERVISION
Declared effective _____________ By:___________________________
Name:
Title: Acting Director
By:___________________________
Name:
Title: Corporate Secretary
-18-
<PAGE>
CERTIFICATE OF AMENDMENT TO
AMENDED AND RESTATED CHARTER S OF
FIDELITY FEDERAL BANK, A FEDERAL SAVINGS BANK
Fidelity Federal Bank, A Federal Savings Bank (the "Bank"), hereby
certifies as follows:
FIRST. The Board of Directors of the Bank has duly adopted resolutions
approving the amendment of the Amended and Restated Charter S of the Bank as
follows:
Section 5 of the Amended and Restated Charter S of the Bank is hereby
amended as follows:
(1) In the first sentence of such Section 5, (a) the phrase "one
hundred million (100,000,000)" shall be deleted and in its place shall be
inserted the phrase "one hundred five million, five hundred thousand
(105,500,000)" and (b) the phrase "seventy-three million (73,000,000)"
shall be deleted and in its place shall be inserted the phrase "seventy-
eight million, five hundred thousand (78,500,000)".
(2) The following shall be inserted at the end of the first paragraph
of such Section 5:
"Upon the amendment of this Section 5 to include this sentence, each
four (4) outstanding shares of Class A Common Stock are combined,
reconstituted and converted into one (1) new share of Class A Common
Stock, and each four (4) outstanding shares of Class C Common Stock of
the Bank are combined, reconstituted and converted into one (1) new
share of Class C Common Stock (together, the "Reverse Stock Split").
Following the Reverse Stock Split, each certificate for one or more
shares of Class A Common Stock or Class C Common Stock as of the close
of business on the date this amendment becomes effective (the
"Effective Date") shall represent (a) the whole number of shares of
Class A Common Stock or Class C Common Stock, as the case may be,
obtained by multiplying .25 by the number of shares of Class A Common
Stock or Class C Common Stock represented by such certificate
immediately prior to the Effective Date and (b) a right to receive
cash in exchange for any fractional share of Class A Common Stock or
Class C Common Stock, as the case may be, that such stockholder would
otherwise be entitled to receive, in an amount equal to the fractional
share which such stockholder would otherwise be entitled to receive
multiplied by an amount equal to the last reported sale price on the
National Association of Securities Dealers, Inc. OTC Bulletin Board
(the "OTCBB") of one share of Class A Common Stock on the Effective
<PAGE>
Date, or if no sales of the Class A Common Stock occur on the
Effective Date as reported on the OTCBB, the first day immediately
preceding the Effective Date on which a sale of the Class A Common
Stock was reported on the OTCBB, appropriately adjusted for the
Reverse Stock Split."
SECOND. The foregoing amendment has been duly adopted by the stockholders
of the Bank by a majority of the total votes eligible to be cast at a legal
meeting.
IN WITNESS WHEREOF, the Bank has caused this certificate to be signed by
Richard M. Greenwood, its President, and attested by Godfrey B. Evans, its
Secretary, on the 13th day of February, 1996.
FIDELITY FEDERAL BANK,
A FEDERAL SAVINGS BANK
By
--------------------------
Attest:
---------------------
-2-
