EXHIBIT 4.4
SUBORDINATED DEBENTURE CERTIFICATE
WESTBANK CORPORATION
CUSIP No.:
$17,000,000
Certificate No.
[______]% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE [__________], 2029
Westbank Corporation, a Delaware corporation (the "Corporation," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to NHTB Capital Trust I or its registered
assigns, the principal sum of $17,000,000 (Seventeen Million Dollars) on
[__________], 2029 (the "Maturity Date"), unless previously prepaid, and to pay
interest on the outstanding principal amount hereof from [_______], 1999, or
from the most recent interest payment date (each such date, an "Interest Payment
Date") to which interest has been paid or duly provided for, quarterly (subject
to deferral as set forth herein) in arrears on ,
, and of each year, commencing [__________],
1999 at the rate of [______]% per annum until the principal hereof shall have
become due and payable, and on any overdue principal and (without duplication
and to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the same rate per annum
compounded quarterly ("Compounded Interest"). The amount of interest payable on
any Interest Payment Date shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. In the event that any date on which the
principal of `or interest on this Security is payable is not a Business Day (as
defined in the Indenture), then the payment payable on such date will be made on
the next succeeding day that is a Business Day, except that if such next
succeeding Business Day falls in the next succeeding calendar year such payment
shall be made on the immediately preceding Business Day (and without any
interest or other payment in respect of any such delay), with the same force and
effect as if made on such date. Pursuant to the Indenture, in certain
circumstances the Corporation will be required to pay Additional Sums (as
defined in the Indenture) with respect to this Security.
The interest installment so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be paid to
the Person in whose name this Security (or one or more Predecessor Securities,
as defined in said Indenture) is registered at the close of business on the
regular record date for such interest installment, which shall be one Business
Day prior to the relevant Interest Payment Date for Global Securities and the
/th/ day of the month in which the relevant Interest Payment Date falls for
Definitive Securities. Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the holders on such
regular record date and may 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 to be fixed by the Debenture Trustee for the payment of
such defaulted interest, notice whereof shall be given to the holders of
Securities not less than 10 days prior to such special record date, or may 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 the Indenture.
The principal of and interest (including Compounded Interest and Additional
Sums, if any) on this Security shall be payable at the office or agency of the
Debenture Trustee maintained for that purpose in any coin or currency of the
United States of America that at the time of payment is legal tender for payment
of public and private debts; provided, however, that payment of interest may be
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made at the option of the Corporation by (i) check mailed to the holder at such
address as shall appear in the Security Register or (ii) transfer to an account
maintained by the Person entitled thereto, provided that proper written transfer
instructions have been received by the relevant record date. Notwithstanding
the foregoing, so long as the holder of this Security is the Property Trustee of
Westbank Capital Trust I, the payment of the principal of and interest
(including Compounded Interest and Additional Sums, if any) on this Security
will be made at such place and to such account as may be designated by such
Property Trustee.
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Debenture Trustee on his or her behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Debenture Trustee his or her
attorney-in-fact for any and all such purposes. Each holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
This Security shall not be entitled to any benefit under the Indenture or
be valid or become obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by or on behalf of the Debenture
Trustee.
The provisions of this Security are continued on the reverse side hereof
and such provisions shall for all purposes have the same effect as though fully
set forth at this place.
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IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly
executed and sealed this ___ day of _________, 1999.
WESTBANK CORPORATION
By:___________________________________
Name:
Title:
Attest:
By:___________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the [______]% Junior Subordinated Deferrable Interest
Debentures of WESTBANK CORPORATION referred to in the within-mentioned
Indenture.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Debenture
Trustee
Dated:__________________ By:___________________________________
Authorized Signatory
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REVERSE OF SECURITY
This Security is one of the Securities of the Corporation (herein sometimes
referred to as the "Securities"), specified in the Indenture, all issued or to
be issued under and pursuant to an Indenture, dated as of [________], 1999 (the
"Indenture"), duly executed and delivered between the Corporation and Wilmington
Trust Company, as Debenture Trustee (the "Debenture Trustee"), to which
Indenture reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Debenture
Trustee, the Corporation and the holders of the Securities.
Upon the occurrence and continuation of a Special Event (as defined in the
Indenture), the Corporation shall have the right, at any time within days
following the occurrence of such Special Event, to prepay this Security in whole
(but not in part) at the Prepayment Price. "Prepayment Price" shall mean, with
respect to any prepayment of the Securities, an amount equal to % of the
principal amount of the Securities to be prepaid plus any accrued and unpaid
interest thereon (including Compounded Interest and Additional Sums, if any) to
the date of such prepayment.
In addition, the Corporation shall have the right to prepay this Security,
in whole or in part, at any time on or after the Initial Optional Redemption
Date (an "Optional Prepayment"), at the Prepayment Price plus accrued and unpaid
interest thereon (including Compounded Interest and Additional Sums, if any) to
the date of such prepayment.
The Prepayment Price shall be paid prior to 12:00 noon, New York City time,
on the date of such prepayment or at such earlier time as the Corporation
determines, provided, that the Corporation shall deposit with the Debenture
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Trustee an amount sufficient to pay the applicable Prepayment Price by 10:00
a.m., New York City time, on the date such Prepayment Price is to be paid. Any
prepayment pursuant to this paragraph will be made upon not less than days
nor more than 60 days' prior written notice.
If the Securities are only partially prepaid by the Corporation pursuant to
an Optional Prepayment, the particular Securities to be prepaid shall be
selected on a pro rata basis from the outstanding Securities not previously
called for prepayment; provided, however, that with respect to Securityholders
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that would be required to hold Securities with an aggregate principal amount of
less than $ but more than an aggregate principal amount of zero as a result of
such pro rata prepayment, the Corporation shall prepay Securities of each such
Securityholder so that after such prepayment such Securityholder shall hold
Securities either with an aggregate principal amount of at least $ or such
Securityholder no longer holds any Securities and shall use such method
(including, without limitation, by lot) as the Corporation shall deem fair and
appropriate; provided, further, that any such proration may be made on the basis
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of the aggregate principal amount of Securities held by each Securityholder
thereof and may be made by making such adjustments as the Corporation deems fair
and appropriate in order that only Securities in denominations of $ or
integral multiples thereof shall be prepaid. In the event of prepayment of this
Security in part only, a new Security or Securities for the portion hereof that
has not been prepaid will be issued in the name of the holder hereof upon the
cancellation hereof.
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Notwithstanding the foregoing, any prepayment of Securities by the
Corporation shall be subject to the receipt of any and all required regulatory
approvals.
In case an Event of Default (as defined in the Indenture) shall have
occurred and be continuing, the principal of all of the Securities may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Corporation and the
Debenture Trustee, with the consent of the holders of a majority in aggregate
principal amount of the Securities at the time outstanding (as defined in the
Indenture), to execute supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of modifying in any manner the rights of the holders of the
Securities; provided, however, that no such supplemental indenture shall,
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without the consent of each holder of Securities then outstanding and affected
thereby, (i) change the Maturity Date of any Security, or reduce the rate or
extend the time of payment of interest thereon (subject to Article XVI of the
Indenture), or reduce the principal amount thereof, or change any of the
prepayment provisions or make the principal thereof or any interest thereon
payable in any coin or currency other than U.S. dollars, or impair or affect the
right of any holder of Securities to institute suit for payment thereof, or (ii)
reduce the aforesaid percentage of Securities the holders of which are required
to consent to any such supplemental indenture. The Indenture also contains
provisions permitting the holders of a majority in aggregate principal amount of
the Securities at the time outstanding affected thereby, on behalf of all of the
holders of the Securities, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established pursuant to the
Indenture, and its consequences, except a default in the payment of the
principal of or interest on any of the Securities or a default in respect of any
covenant or provision under which the Indenture cannot be modified or amended
without the consent of each holder of Securities then outstanding. Any such
consent or waiver by the holder of this Security (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such holder and upon all
future holders and owners of this Security and of any Security issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this 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 Corporation, which
is absolute and unconditional, to pay the principal of and interest (including
Compounded Interest and Additional Sums, if any) on this Security at the time
and place and at the rate and in the money herein prescribed.
So long as no Event of Default shall have occurred and be continuing, the
Corporation shall have the right, at any time and from time to time during the
term of the Securities, to defer payments of interest by extending the interest
payment period (an "Extended Interest Payment Period") of such Securities for a
period not (i) exceeding 20 consecutive quarterly periods, including the first
such quarterly period during such extension period, (ii) extending beyond the
Maturity Date of the Securities or (iii) ending on a date other than an Interest
Payment Date, at the end of which period the Corporation shall pay all interest
then accrued and unpaid (together with interest thereon at the rate specified
for the Securities to the extent that payment of such interest is enforceable
under applicable law). Before the termination of any such Extended Interest
Payment Period, the
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Corporation may further defer payments of interest by further extending such
Extended Interest Payment Period, provided that such Extended Interest Payment
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Period, together with all such previous and further extensions within such
Extended Interest Payment Period, (i) shall not exceed 20 consecutive quarterly
periods including the first quarterly period during such Extended Interest
Payment Period, (ii) shall not end on any date other than an Interest Payment
Date, and (iii) shall not extend beyond the Maturity Date of the Securities.
Upon the termination of any such Extended Interest Payment Period and the
payment of all accrued and unpaid interest and any additional amounts then due,
the Corporation may commence a new Extended Interest Payment Period, subject to
the foregoing requirements. No interest shall be due and payable during an
Extended Interest Payment Period, except at the end thereof, but the Corporation
may prepay at any time all or any portion of the interest accrued during an
Extended Interest Payment Period.
The Corporation has agreed that if (1) there shall have occurred any event
of which the Corporation has actual knowledge that (a) is, or with the giving of
notice or the lapse of time, or both, would constitute, an Event of Default and
(b) in respect of which the Corporation shall not have taken reasonable steps to
cure, (2) if the Securities are held by the Property Trustee of Westbank Capital
Trust I, the Corporation shall be in default with respect to its payment of any
obligations under the Capital Securities Guarantee or (3) the Corporation shall
have given notice of its election to exercise its right to commence an Extended
Interest Payment Period, and shall not have rescinded such Notice, and such
Extended Interest Payment Period or any extension thereof shall have commenced
and be continuing, it will not (i) declare or pay any dividends or distributions
on, or redeem, purchase, acquire, or make a liquidation payment with respect to,
any of the Corporation's capital stock, (ii) make any payment of principal of or
interest on or premium, if any, on or repay, repurchase or redeem any debt
securities (including other Debentures) of the Corporation that rank pari passu
with or junior in right of payment to the Securities or (iii) make any guarantee
payments with respect to any guarantee by the Corporation of the debt securities
of any Subsidiary of the Corporation (including Other Guarantees) if such
guarantee ranks pari passu with or junior in right of payment to the Securities
(other than (a) dividends or distributions of Corporation's capital stock (which
includes Common Stock and preferred stock), (b) any declaration of a dividend in
connection with the implementation of a stockholders' rights plan, or the
issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under the Capital
Securities Guarantee, as defined in the Indenture, (d) as a result of a
reclassification of the Corporation's capital stock or the exchange or
conversion of one class or series of the Corporation's capital stock for another
class or series of the Corporation's capital stock, (e) the purchase of
fractional interests in shares of the Corporation's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged, and (f) purchases of Common Stock related to the
issuance of Common Stock or rights under any of the Corporation's benefit or
compensation plans for its directors, officers or employees or any of the
Corporation's dividend reinvestment plans).
Subject to (i) the Corporation having received any required regulatory
approvals and (ii) the Administrative Trustees of Westbank Capital Trust I
having received an opinion of counsel to the effect that such distribution will
not cause the holders of Capital Securities to recognize gain or loss for
federal income tax purposes, the Corporation will have the right at any time to
liquidate the Trust and, after satisfaction of liabilities of creditors of the
Trust as required by applicable law, to cause the Securities to be distributed
to the holders of the Trust Securities in liquidation of the Trust.
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The Securities are issuable only in registered form without coupons in
minimum denominations of $ and multiples of $ in excess thereof. As
provided in the Indenture and subject to the transfer restrictions limitations
as may be contained herein and therein from time to time, this Security is
transferable by the holder hereof on the Security Register of the Corporation,
upon surrender of this Security for registration of transfer at the office or
agency of the Corporation in Wilmington, Delaware accompanied by a written
instrument or instruments of transfer in form satisfactory to the Corporation or
the Debenture Trustee duly executed by the holder hereof or his or her attorney
duly authorized in writing, and thereupon one or more new Securities of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
made for any such registration of transfer, but the Corporation may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in relation thereto.
Prior to due presentment for registration of transfer of this Security, the
Corporation, the Debenture Trustee, any authenticating agent, any paying agent,
any transfer agent and the security registrar may deem and treat the holder
hereof as the absolute owner hereof (whether or not this Security shall be
overdue and notwithstanding any notice of ownership or writing hereon made by
anyone other than the security registrar for the Securities) for the purpose of
receiving payment of or on account of the principal hereof and (subject to the
Indenture) interest due hereon and for all other purposes, and neither the
Corporation nor the Debenture Trustee nor any authenticating agent nor any
paying agent nor any transfer agent nor any security registrar shall be affected
by any notice to the contrary.
No recourse shall be had for the payment of the principal of or interest
(including Compounded Interest and Additional Sums, if any) on this Security, or
for any claim based hereon, or otherwise in respect hereof, or based on or in
respect of the Indenture, against any incorporator, stockholder, employee,
officer or director, past, present or future, as such, of the Corporation or of
any predecessor or successor Person, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issuance hereof, expressly waived and released.
All terms used in this Security that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES THEREOF.
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