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FIRST COMMUNITY BANCORP,
AS ISSUER
INDENTURE
DATED AS OF SEPTEMBER 7, 2000
STATE STREET BANK AND TRUST COMPANY, OF CONNECTICUT, NATIONAL ASSOCIATION,
AS TRUSTEE
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
DUE 2030
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TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS............................................................................................1
Section 1.1. Definitions............................................................................1
ARTICLE II. DEBT SECURITIES.......................................................................................8
Section 2.1. Authentication and Dating..............................................................8
Section 2.2. Form of Trustee's Certificate of Authentication........................................8
Section 2.3. Form and Denomination of Debt Securities...............................................9
Section 2.4. Execution of Debt Securities...........................................................9
Section 2.5. Exchange and Registration of Transfer of Debt Securities...............................9
Section 2.6. Mutilated, Destroyed, Lost or Stolen Debt Securities..................................11
Section 2.7. Temporary Debt Securities.............................................................11
Section 2.8. Payment of Interest and Additional Interest...........................................12
Section 2.9. Cancellation of Debt Securities Paid, etc.............................................13
Section 2.10. Computation of Interest...............................................................13
Section 2.11. Extension of Interest Payment Period..................................................13
Section 2.12. CUSIP Numbers.........................................................................14
ARTICLE III. PARTICULAR COVENANTS OF THE COMPANY.................................................................14
Section 3.1. Payment of Principal, Premium and Interest; Agreed Treatment of the Debt
Securities............................................................................14
Section 3.2. Offices for Notices and Payments, etc.................................................15
Section 3.3. Appointments to Fill Vacancies in Trustee's Office....................................15
Section 3.4. Provision as to Paying Agent..........................................................15
Section 3.5. Certificate to Trustee................................................................16
Section 3.6. Additional Sums.......................................................................16
Section 3.7. Compliance with Consolidation Provisions..............................................17
Section 3.8. Limitation on Dividends...............................................................17
Section 3.9. Covenants as to the Trust.............................................................17
ARTICLE IV. SECURITYHOLDERS'LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE.....................................18
Section 4.1. Securityholders'Lists.................................................................18
Section 4.2. Preservation and Disclosure of Lists..................................................18
ARTICLE V. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT..................................19
Section 5.1. Events of Default.....................................................................19
Section 5.2. Payment of Debt Securities on Default; Suit Therefor..................................20
Section 5.3. Application of Moneys Collected by Trustee............................................22
Section 5.4. Proceedings by Securityholders........................................................22
Section 5.5. Proceedings by Trustee................................................................23
Section 5.6. Remedies Cumulative and Continuing; Delay or Omission Not a Waiver....................23
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Section 5.7. Direction of Proceedings and Waiver of Defaults by Majority of Securityholders........23
Section 5.8. Notice of Defaults....................................................................24
Section 5.9. Undertaking to Pay Costs..............................................................24
ARTICLE VI. CONCERNING THE TRUSTEE...............................................................................24
Section 6.1. Duties and Responsibilities of Trustee................................................24
Section 6.2. Reliance on Documents, Opinions, etc..................................................25
Section 6.3. No Responsibility for Recitals, etc...................................................26
Section 6.4. Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar May
Own Debt Securities...................................................................26
Section 6.5. Moneys to be Held in Trust............................................................27
Section 6.6. Compensation and Expenses of Trustee..................................................27
Section 6.7. Officers'Certificate as Evidence......................................................27
Section 6.8. Eligibility of Trustee................................................................28
Section 6.9. Resignation or Removal of Trustee.....................................................28
Section 6.10. Acceptance by Successor Trustee.......................................................29
Section 6.11. Succession by Merger, etc.............................................................30
Section 6.12. Authenticating Agents.................................................................30
ARTICLE VII. CONCERNING THE SECURITYHOLDERS......................................................................31
Section 7.1. Action by Securityholders.............................................................31
Section 7.2. Proof of Execution by Securityholders.................................................32
Section 7.3. Who Are Deemed Absolute Owners........................................................32
Section 7.4. Debt Securities Owned by Company Deemed Not Outstanding...............................32
Section 7.5. Revocation of Consents; Future Holders Bound..........................................32
ARTICLE VIII. SECURITYHOLDERS'MEETINGS...........................................................................33
Section 8.1. Purposes of Meetings..................................................................33
Section 8.2. Call of Meetings by Trustee...........................................................33
Section 8.3. Call of Meetings by Company or Securityholders........................................33
Section 8.4. Qualifications for Voting.............................................................33
Section 8.5. Regulations...........................................................................33
Section 8.6. Voting................................................................................34
Section 8.7. Quorum; Actions.......................................................................34
ARTICLE IX. SUPPLEMENTAL INDENTURES..............................................................................35
Section 9.1. Supplemental Indentures without Consent of Securityholders............................35
Section 9.2. Supplemental Indentures with Consent of Securityholders...............................36
Section 9.3. Effect of Supplemental Indentures.....................................................37
Section 9.4. Notation on Debt Securities...........................................................37
Section 9.5. Evidence of Compliance of Supplemental Indenture to be Furnished to Trustee...........37
ARTICLE X. REDEMPTION OF SECURITIES..............................................................................37
Section 10.1. Optional Redemption...................................................................37
Section 10.2. Special Event Redemption..............................................................38
Section 10.3. Notice of Redemption; Selection of Debt Securities....................................38
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Section 10.4. Payment of Debt Securities Called for Redemption......................................39
ARTICLE XI. CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE....................................................39
Section 11.1. Company May Consolidate, etc., on Certain Terms.......................................39
Section 11.2. Successor Entity to be Substituted....................................................39
Section 11.3. Opinion of Counsel to be Given to Trustee.............................................40
ARTICLE XII. SATISFACTION AND DISCHARGE OF INDENTURE.............................................................40
Section 12.1. Discharge of Indenture................................................................40
Section 12.2. Deposited Moneys to be Held in Trust by Trustee.......................................41
Section 12.3. Paying Agent to Repay Moneys Held.....................................................41
Section 12.4. Return of Unclaimed Moneys............................................................41
ARTICLE XIII. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS....................................41
Section 13.1. Indenture and Debt Securities Solely Corporate Obligations............................41
ARTICLE XIV. MISCELLANEOUS PROVISIONS............................................................................41
Section 14.1. Successors............................................................................41
Section 14.2. Official Acts by Successor Entity.....................................................41
Section 14.3. Surrender of Company Powers...........................................................42
Section 14.4. Addresses for Notices, etc............................................................42
Section 14.5. Governing Law.........................................................................42
Section 14.6. Evidence of Compliance with Conditions Precedent......................................42
Section 14.7. Non-Business Days.....................................................................42
Section 14.8. Table of Contents, Headings, etc......................................................42
Section 14.9. Execution in Counterparts.............................................................43
Section 14.10. Separability..........................................................................43
Section 14.11. Assignment............................................................................43
Section 14.12. Acknowledgment of Rights..............................................................43
ARTICLE XV. SUBORDINATION OF DEBT SECURITIES.....................................................................43
Section 15.1. Agreement to Subordinate..............................................................43
Section 15.2. Default on Senior Indebtedness........................................................44
Section 15.3. Liquidation, Dissolution, Bankruptcy..................................................44
Section 15.4. Subrogation...........................................................................45
Section 15.5. Trustee to Effectuate Subordination...................................................46
Section 15.6. Notice by the Company.................................................................46
Section 15.7. Rights of the Trustee; Holders of Senior Indebtedness.................................46
Section 15.8. Subordination May Not Be Impaired.....................................................47
Exhibit A Form of Junior Subordinated Deferrable Interest Debenture
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THIS INDENTURE, dated as of September 7, 2000, between First
Community Bancorp, a California corporation (hereinafter sometimes called the
"COMPANY"), and State Street Bank and Trust Company of Connecticut, National
Association, a national banking association organized under the laws of the
United States of America, as debt securities trustee (hereinafter sometimes
called the "TRUSTEE"),
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issuance of its 10.60% Junior Subordinated Deferrable Interest
Debentures due 2030 (the "DEBT SECURITIES") under this Indenture to provide,
among other things, for the execution and authentication, delivery and
administration thereof, the Company has duly authorized the execution of this
Indenture; and
WHEREAS, all acts and things necessary to make this Indenture a
valid agreement according to its terms, have been done and performed;
NOW, THEREFORE, This Indenture Witnesseth:
In consideration of the premises, and the purchase of the Debt
Securities by the holders thereof, the Company covenants and agrees with the
Trustee for the equal and proportionate benefit of the respective holders
from time to time of the Debt Securities as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. DEFINITIONS. The terms defined in this Section 1.1
(except as herein otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this
Section 1.1. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally
accepted accounting principles and the term "generally accepted accounting
principles" means such accounting principles as are generally accepted in the
United States at the time of any computation. 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.
"ADDITIONAL INTEREST" means interest, if any, that shall accrue on
any interest on the Debt Securities the payment of which has not been made on
the applicable Interest Payment Date and which shall accrue at the Interest
Rate, compounded semi-annually (to the extent permitted by law).
"ADDITIONAL SUMS" has the meaning set forth in Section 3.6.
"AFFILIATE" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"AUTHENTICATING AGENT" means any agent or agents of the Trustee
which at the time shall be appointed and acting pursuant to Section 6.12.
"BANKRUPTCY LAW" means Title 11, U.S. Code, or any similar federal
or state law for the relief of debtors.
"BOARD OF DIRECTORS" means the board of directors or the executive
committee or any other duly authorized designated officers of the Company.
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"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 any day other than a Saturday, Sunday or any
other day on which banking institutions in New York City or Hartford,
Connecticut are permitted or required by any applicable law to close.
"CAPITAL SECURITIES" means undivided beneficial interests in the
assets of First Community/CA Statutory Trust I which rank PARI PASSU with
Common Securities issued by the Trust; PROVIDED, HOWEVER, that upon the
occurrence of an Event of Default (as defined in the Declaration), the rights
of holders of such Common Securities to payment in respect of distributions
and payments upon liquidation, redemption and otherwise are subordinated to
the rights of holders of such Capital Securities.
"CAPITAL SECURITIES GUARANTEE" means the guarantee agreement that
the Company enters into with State Street Bank and Trust Company of
Connecticut, National Association, as guarantee trustee, or other Persons
that operates directly or indirectly for the benefit of holders of Capital
Securities of the Trust.
"CAPITAL TREATMENT EVENT" means the receipt by the Company of an
opinion of counsel experienced in such matters that, as a result of the
occurrence of any amendment to, or change (including any announced
prospective change) in, the laws of the United States or any political
subdivision thereof or therein, or as the result of any official or
administrative pronouncement or action or decision interpreting or applying
such laws, rules or regulations, which amendment or change is effective or
which pronouncement, action or decision is announced on or after the date of
issuance of the Debt Securities, there is more than an insubstantial risk
that the Company will not be entitled to treat an amount equal to the
aggregate Liquidation Amount of the Debt Securities as "Tier 1 Capital" (or
the then equivalent thereof) for purposes of the capital adequacy guidelines
of the Federal Reserve, as then in effect and applicable to the Company;
PROVIDED, HOWEVER, that the inability of the Company to treat all or any
portion of the Liquidation Amount of the Debt Securities as Tier 1 Capital
shall not constitute the basis for a Capital Treatment Event if such
inability results from the Company having cumulative preferred stock,
minority interests in consolidated subsidiaries, or any other class of
security or interest which the Federal Reserve now or may hereafter accord
Tier 1 Capital treatment in excess of the amount which may qualify for
treatment as Tier 1 Capital under applicable capital adequacy guidelines for
the Federal Reserve; PROVIDED FURTHER, HOWEVER, that the distribution of Debt
Securities in connection with the dissolution of the Trust shall not in and
of itself constitute a Capital Treatment Event unless such dissolution shall
have occurred in connection with a Tax Event or an Investment Company Event.
"CERTIFICATE" means a certificate signed by any one of the principal
executive officer, the principal financial officer or the principal
accounting officer of the Company.
"COMMON SECURITIES" means undivided beneficial interests in the
assets of the Trust which rank PARI passu with Capital Securities issued by
the Trust; PROVIDED, HOWEVER, that upon the occurrence of an Event of Default
(as defined in the Declaration), the rights of holders of such Common
Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights of
holders of such Capital Securities.
"COMPANY" means First Community Bancorp, a California corporation,
and, subject to the provisions of Article XI, shall include its successors
and assigns.
"COMPARABLE TREASURY ISSUE" means with respect to any Special
Redemption Date the United States Treasury security selected by the Quotation
Agent as having a maturity comparable to the
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Remaining Life that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the Remaining Life. If no
United States Treasury security has a maturity which is within a period from
three months before to three months after September 7, 2010, the two most
closely corresponding United States Treasury securities, as selected by the
Quotation Agent, shall be used as the Comparable Treasury Issue, and the
Treasury Rate shall be interpolated or extrapolated on a straight-line basis,
rounding to the nearest month using such securities.
"COMPARABLE TREASURY PRICE" means (a) the average of five Reference
Treasury Dealer Quotations for such Special Redemption Date, after excluding
the highest and lowest such Reference Treasury Dealer Quotations, or (b) if
the Quotation Agent obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"DEBT SECURITY" or "DEBT SECURITIES" has the meaning stated in the
first recital of this Indenture.
"DEBT SECURITY REGISTER" has the meaning specified in Section 2.5.
"DECLARATION" means the Amended and Restated Declaration of Trust of
the Trust, as amended or supplemented from time to time.
"DEFAULT" means any event, act or condition that with notice or
lapse of time, or both, would constitute an Event of Default.
"DEFAULTED INTEREST" has the meaning set forth in Section 2.8.
"EVENT OF DEFAULT" means any event specified in Section 5.1,
continued for the period of time, if any, and after the giving of the notice,
if any, therein designated.
"EXTENSION PERIOD" has the meaning set forth in Section 2.11.
"FEDERAL RESERVE" means the Board of Governors of the Federal
Reserve System.
"INDENTURE" means this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented, or
both.
"INSTITUTIONAL TRUSTEE" has the meaning set forth in the Declaration.
"INTEREST PAYMENT DATE," means each March 7 and September 7 during
the term of this Indenture.
"INTEREST RATE" means 10.60%.
"INVESTMENT COMPANY EVENT" means the receipt by the Company and the
Trust of an opinion of counsel experienced in such matters to the effect
that, as a result of the occurrence of a change in law or regulation or
written change (including any announced prospective change) in interpretation
or application of law or regulation by any legislative body, court,
governmental agency or regulatory authority, there is more than an
insubstantial risk that the Trust is or will be considered an "investment
company" that is required to be registered under the Investment Company Act
of 1940, as amended which change or prospective change becomes effective or
would become effective, as the case may be, on or after the date of the
issuance of the Debt Securities.
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"LIQUIDATION AMOUNT" means the stated amount of $ 1,000 per Trust
Security.
"MATURITY DATE" means September 7, 2030.
"OFFICERS' CERTIFICATE" means a certificate signed by the [Chairman of
the Board, the Vice Chairman, the President, any Managing Director or any Vice
President, and by the Treasurer, an Assistant Treasurer, the Comptroller, an
Assistant Comptroller, the Secretary or an Assistant Secretary] of the Company,
and delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 14.6 if and to the extent required by the provisions of
such Section.
"OPINION OF COUNSEL" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company, or may be other
counsel reasonably satisfactory to the Trustee. Each such opinion shall
include the statements provided for in Section 14.6 if and to the extent
required by the provisions of such Section.
The term "OUTSTANDING," when used with reference to Debt Securities,
means, subject to the provisions of Section 7.4, as of any particular time, all
Debt Securities authenticated and delivered by the Trustee or the Authenticating
Agent under this Indenture, except:
(a) Debt Securities theretofore canceled by the Trustee or the
Authenticating Agent or delivered to the Trustee for cancellation;
(b) Debt Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Company) or shall have been set aside and segregated in trust
by the Company (if the Company shall act as its own paying agent);
PROVIDED, HOWEVER, that, if such Debt Securities, or portions thereof,
are to be redeemed prior to maturity thereof, notice of such redemption
shall have been given as provided in Article XIV or provision
satisfactory to the Trustee shall have been made for giving such
notice;
(c) Debt Securities paid pursuant to Section 2.6 or in lieu of
or in substitution for which other Debt Securities shall have been
authenticated and delivered pursuant to the terms of Section 2.6 unless
proof satisfactory to the Company and the Trustee is presented that any
such Debt Securities are held by bona fide holders in due course; and
(d) Debt Securities held in accordance with Section 7.4
hereof.
"PERSON" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"PREDECESSOR SECURITY" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 2.6
in lieu of a lost, destroyed or stolen Debt Security shall be deemed to
evidence the same debt as the lost, destroyed or stolen Debt Security.
"PRIMARY TREASURY DEALER" means either a nationally recognized
primary United States Government securities dealer or an entity of nationally
recognized standing in matters pertaining to the quotation of treasury
securities that is reasonably acceptable to the Company and the Trustee.
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"PRINCIPAL OFFICE OF THE TRUSTEE," or other similar term, means the
office of the Trustee, at which at any particular time its corporate trust
business shall be principally administered, which at the time of the
execution of this Indenture shall be 225 Asylum Street, Goodwin Square,
Hartford, Connecticut 06103.
"QUOTATION AGENT" means State Street Bank and Trust Company or its
designee, and its successors; PROVIDED, HOWEVER, that if the foregoing shall
cease to be a Primary Treasury Dealer, the Company shall substitute therefor
another Primary Treasury Dealer.
"REDEMPTION DATE" has the meaning set forth in Section 10.1.
"REDEMPTION PRICE" means the price set forth in the following table
for any Redemption Date that occurs within the twelve-month period beginning
in the relevant year indicated below, expressed as the percentage of the
principal amount of the Debt Securities being redeemed:
Year Beginning Percentage
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September 7, 2010 105.300%
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September 7, 2011 104.770%
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September 7, 2012 104.240%
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September 7, 2013 103.710%
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September 7, 2014 103.180%
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September 7, 2015 102.650%
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September 7, 2016 102.120%
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September 7, 2017 101.590%
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September 7, 2018 101.060%
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September 7, 2019 100.530%
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September 7, 2020 and after 100.000%
plus accrued and unpaid interest on such Debt Securities to the
Redemption Date.
"REFERENCE TREASURY DEALER" means (i) the Quotation Agent and (ii)
any other Primary Treasury Dealer selected by the Trustee after consultation
with the Company.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined
by the Quotation Agent, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Quotation Agent by such Reference Treasury
Dealer at 5:00 p.m., New York City time, on the third Business Day preceding
such Redemption Date.
"REMAINING LIFE" means, with respect to any Debt Security, the
period from the Special Redemption Date for such Debt Security to September
7, 2010.
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"RESPONSIBLE OFFICER" means, with respect to the Trustee, any
officer within the Principal Office of the Trustee, including any
vice-president, any assistant vice-president, any secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or other
officer of the Principal Trust Office 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 that officer's
knowledge of and familiarity with the particular subject.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time or any successor legislation.
"SECURITYHOLDER," "holder of Debt Securities," or other similar
terms, means any Person in whose name at the time a particular Debt Security
is registered on the register kept by the Company or the Trustee for that
purpose in accordance with the terms hereof.
"SENIOR INDEBTEDNESS" means, with respect to the Company, (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of
the Company for money borrowed and (B) indebtedness evidenced by securities,
debentures, notes, bonds or other similar instruments issued by the Company;
(ii) all capital lease obligations of the Company; (iii) all obligations of
the Company issued or assumed as the deferred purchase price of property, all
conditional sale obligations of the Company and all obligations of the
Company under any title retention agreement (but excluding trade accounts
payable arising in the ordinary course of business); (iv) all obligations of
the Company for the reimbursement of any letter of credit, any banker's
acceptance, any security purchase facility, any repurchase agreement or
similar arrangement, any interest rate swap, any other hedging arrangement,
any obligation under options or any similar credit or other transaction; (v)
all obligations of the type referred to in clauses (i) through (iv) above of
other Persons for the payment of which the Company is responsible or liable
as obligor, guarantor or otherwise; and (vi) all obligations of the type
referred to in clauses (i) through (v) above of other Persons secured by any
lien on any property or asset of the Company (whether or not such obligation
is assumed by the Company), whether incurred on or prior to the date of this
Indenture or thereafter incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is
provided that such obligations are not superior or PARI PASSU in right of
payment to the Debt Securities, except for (1) any indebtedness between or
among the Company and any non-financial institution Affiliate of the Company
and (2) Debt Securities issued pursuant to this Indenture and guarantees in
respect of such Debt Securities. Senior Indebtedness shall continue to be
Senior Indebtedness and be entitled to the subordination provisions
irrespective of any amendment, modification or waiver of any term of such
Senior Indebtedness.
"SPECIAL EVENT" means any of a Capital Treatment Event, an
Investment Company Event or a Tax Event.
"SPECIAL REDEMPTION DATE" has the meaning set forth in Section 10.2.
"SPECIAL REDEMPTION PRICE" means (a) if the Special Redemption Date
is before September 7, 2010, the greater of (i) 100% of the principal amount
of the Debt Securities, plus accrued and unpaid interest on the Debt
Securities to such Special Redemption Date, or (ii) as determined by a
Quotation Agent, the sum of (A) the present value of the principal amount of
the Debt Securities set forth in the table under the definition of
"Redemption Price" for the September 7, 2010 Redemption Date and the present
value of interest payable on the Debt Securities from such Special Redemption
Date to September 7, 2010 (the "REMAINING LIFE"), each discounted to the
Special Redemption Date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months at the Treasury Rate), plus (B) accrued
and unpaid interest on the Debt Securities to such Special Redemption Date,
or (b) if the
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Special Redemption Date is on or after September 7, 2010, the price for the
Debt Securities set forth in the table under the definition of "Redemption
Price" for such Special Redemption Date.
"SUBSIDIARY" means with respect to any Person, (i) any corporation
at least a majority of the outstanding voting stock of which is owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries,
or by such Person and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority of the
outstanding partnership or similar interests of which shall at the time be
owned by such Person, or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries and (iii) any limited partnership
of which such Person or any of its Subsidiaries is a general partner. For the
purposes of this definition, "voting stock" means shares, interests,
participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such power only
by reason of the occurrence of a contingency.
"TAX EVENT" means the receipt by the Company and the Trust of an
opinion of counsel experienced in such matters to the effect that, as a
result of any amendment to or change (including any announced prospective
change) in the laws or any regulations thereunder of the United States or any
political subdivision or taxing authority thereof or therein, or as a result
of any official administrative pronouncement (including any private letter
ruling, technical advice memorandum, field service advice, regulatory
procedure, notice or announcement, including any notice or announcement of
intent to adopt such procedures or regulations (an "ADMINISTRATIVE ACTION"))
or judicial decision interpreting or applying such laws or regulations,
regardless of whether such Administrative Action or judicial decision is
issued to or in connection with a proceeding involving the Company or the
Trust and whether or not subject to review or appeal, which amendment,
clarification, change, Administrative Action or decision is enacted,
promulgated or announced, in each case on or after the date of issuance of
the Debt Securities, there is more than an insubstantial risk that: (i) the
Trust is, or will be within 90 days of the date of such opinion, subject to
United States federal income tax with respect to income received or accrued
on the Debt Securities; (ii) interest payable by the Company on the Debt
Securities is not, or within 90 days of the date of such opinion, will not
be, deductible by the Company, in whole or in part, for United States federal
income tax purposes; or (iii) the Trust is, or will be within 90 days of the
date of such opinion, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
"TREASURY RATE" means (i) the yield, under the heading which
represents the average for the week immediately prior to the date of
calculation, appearing in the most recently published statistical release
designated H.15 (519) or any successor publication which is published weekly
by the Federal Reserve and which establishes yields on actively traded United
States Treasury securities adjusted to constant maturity under the caption
"Treasury Constant Maturities," for the maturity corresponding to the
Remaining Life (if no maturity is within three months before or after the
Remaining Life, yields for the two published maturities most closely
corresponding to the Remaining Life shall be determined and the Treasury Rate
shall be interpolated or extrapolated from such yields on a straight-line
basis, rounding to the nearest month) or (ii) if such release (or any
successor release) is not published during the week preceding the calculation
date or does not contain such yields, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price
for such Special Redemption Date. The Treasury Rate shall be calculated by
the Quotation Agent on the third Business Day preceding the Special
Redemption Date.
"TRUST" shall mean First Community/CA Statutory Trust I, a
Connecticut statutory trust, or any other similar trust created for the
purpose of issuing Capital Securities in connection with the issuance of Debt
Securities under this Indenture, of which the Company is the sponsor.
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"TRUST SECURITIES" means Common Securities and Capital Securities of
the Trust.
"TRUSTEE" means the Person identified as "TRUSTEE" in the first
paragraph hereof, and, subject to the provisions of Article VI hereof, shall
also include its successors and assigns as Trustee hereunder.
ARTICLE II.
DEBT SECURITIES
SECTION 2.1. AUTHENTICATION AND DATING. Upon the execution and
delivery of this Indenture, or from time to time thereafter, Debt Securities
in an aggregate principal amount not in excess of $8,248,000 may be executed
and delivered by the Company to the Trustee for authentication, and the
Trustee shall thereupon authenticate and make available for delivery said
Debt Securities to or upon the written order of the Company, signed by [its
Chairman of the Board of Directors, Vice Chairman, the President, one of its
Managing Directors or one of its Vice Presidents and by its Secretary, any
Assistant Secretary, Treasurer or any Assistant Treasurer], without any further
action by the Company hereunder. In authenticating such Debt Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Debt Securities, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon:
(a) a copy of any Board Resolution or Board Resolutions relating
thereto and, if applicable, an appropriate record of any action taken
pursuant to such resolution, in each case certified by the Secretary or an
Assistant Secretary of the Company as the case may be; and
(b) an Opinion of Counsel prepared in accordance with Section 14.6
which shall also state:
(1) that such Debt Securities, when authenticated and
delivered by the Trustee and issued by the Company in each
case in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company subject to or limited by
applicable bankruptcy, insolvency, reorganization,
conservatorship, receivership, moratorium and other statutory
or decisional laws relating to or affecting creditors' rights
or the reorganization of financial institutions (including,
without limitation, preference and fraudulent conveyance or
transfer laws), heretofore or hereafter enacted or in effect,
affecting the rights of creditors generally; and
(2) that all laws and requirements in respect of the execution
and delivery by the Company of the Debt Securities, have been
complied with and that authentication and delivery of the Debt
Securities by the Trustee will not violate the terms of this
Indenture.
The Trustee shall have the right to decline to authenticate and
deliver any Debt Securities under this Section if the Trustee, being advised
in writing by counsel, determines that such action may not lawfully be taken
or if a Responsible Officer of the Trustee in good faith shall determine that
such action would expose the Trustee to personal liability to existing
holders.
The definitive Debt Securities shall be typed, printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers executing such Debt Securities, as
evidenced by their execution of such Debt Securities.
SECTION 2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication on all Debt Securities shall be in
substantially the following form:
8
This is one of the Debt Securities referred to in the
within-mentioned Indenture.
State Street Bank and Trust Company of Connecticut, National
Association, as Trustee
By
--------------------------------------
Authorized Signer
SECTION 2.3. FORM AND DENOMINATION OF DEBT SECURITIES. The Debt
Securities shall be in registered, certificated form without coupons and in
minimum denominations of $500,000 and any multiple of $1,000 in excess
thereof. Any attempted transfer of the Debt Securities in a block having an
aggregate principal amount of less than $500,000 shall be deemed to be voided
and of no legal effect whatsoever. Any such purported transferee shall be
deemed not to be a holder of such Debt Securities for any purpose, including,
but not limited to the receipt of payments on such Debt Securities, and such
purported transferee shall be deemed to have no interest whatsoever in such
Debt Securities. The Debt Securities shall be numbered, lettered, or
otherwise distinguished in such manner or in accordance with such plans as
the officers executing the same may determine with the approval of the
Trustee as evidenced by the execution and authentication thereof.
SECTION 2.4. EXECUTION OF DEBT SECURITIES. The Debt Securities shall
be signed in the name and on behalf of the Company by the manual or facsimile
signature of its Chairman of the Board of Directors, Vice Chairman,
President, one of its Managing Directors or one of its Executive Vice
Presidents, Senior Vice Presidents or Vice Presidents and by the manual or
facsimile signature of its Secretary, one of its Assistant Secretaries, its
Treasurer or one of its Assistant Treasurers, under its corporate seal which
may be affixed thereto or printed, engraved or otherwise reproduced thereon,
by facsimile or otherwise, and which need not be attested. Only such Debt
Securities as shall bear thereon a certificate of authentication
substantially in the form herein before recited, executed by the Trustee or
the Authenticating Agent by the manual signature of an authorized signer,
shall be entitled to the benefits of this Indenture or be valid or obligatory
for any purpose. Such certificate by the Trustee or the Authenticating Agent
upon any Debt Security executed by the Company shall be conclusive evidence
that the Debt Security so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits of this
Indenture.
In case any officer of the Company who shall have signed any of the
Debt Securities shall cease to be such officer before the Debt Securities so
signed shall have been authenticated and delivered by the Trustee or the
Authenticating Agent, or disposed of by the Company, such Debt Securities
nevertheless may be authenticated and delivered or disposed of as though the
Person who signed such Debt Securities had not ceased to be such officer of
the Company; and any Debt Security may be signed on behalf of the Company by
such Persons as, at the actual date of the execution of such Debt Security,
shall be the proper officers of the Company, although at the date of the
execution of this Indenture any such person was not such an officer.
Every Debt Security shall be dated the date of its authentication.
SECTION 2.5. EXCHANGE AND REGISTRATION OF TRANSFER OF DEBT
SECURITIES. The Company shall cause to be kept, at the office or agency
maintained for the purpose of registration of transfer and for exchange as
provided in Section 3.2, a register (the "Debt Security Register") for the
Debt Securities issued hereunder in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
registration and transfer of all Debt Securities as in this Article II
provided. The Debt Security Register shall be in written form or in any other
form capable of being converted into written form within a reasonable time.
9
Debt Securities to be exchanged may be surrendered at the principal
corporate trust office of the Trustee or at any office or agency to be
maintained by the Company for such purpose as provided in Section 3.2, and
the Company shall execute, the Company or the Trustee shall register and the
Trustee or the Authenticating Agent shall authenticate and make available for
delivery in exchange therefor the Debt Security or Debt Securities which the
Securityholder making the exchange shall be entitled to receive. Upon due
presentment for registration of transfer of any Debt Security at the
principal corporate trust office of the Trustee or at any office or agency of
the Company maintained for such purpose as provided in Section 3.2, the
Company shall execute, the Company or the Trustee shall register and the
Trustee or the Authenticating Agent shall authenticate and make available for
delivery in the name of the transferee or transferees a new Debt Security for
a like aggregate principal amount. Registration or registration of transfer
of any Debt Security by the Trustee or by any agent of the Company appointed
pursuant to Section 3.2, and delivery of such Debt Security, shall be deemed
to complete the registration or registration of transfer of such Debt
Security.
All Debt Securities presented for registration of transfer or for
exchange or payment shall (if so required by the Company or the Trustee or
the Authenticating Agent) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee or the Authenticating Agent duly executed by the holder or his
attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Debt Securities, but the Company or the Trustee may require
payment of a sum sufficient to cover any tax, fee or other governmental
charge that may be imposed in connection therewith.
The Company or the Trustee shall not be required to exchange or
register a transfer of any Debt Security for a period of 15 days next
preceding the date of selection of Debt Securities for redemption.
Notwithstanding anything herein to the contrary, Debt Securities may
not be transferred except in compliance with the restricted securities legend
set forth below (the "Restrictive Securities Legend"), unless otherwise
determined by the Company, upon the advice of counsel expert in securities
law, in accordance with applicable law:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR ANY
OTHER APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
ONLY (A) TO THE COMPANY, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A IN ACCORDANCE WITH RULE 144A, (C) TO A NON-U.S. PERSON IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF
REGULATION S UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE
501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS CAPITAL SECURITY FOR ITS
OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR,
FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY
10
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE INDENTURE, A
COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY. THE HOLDER OF THIS SECURITY
AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.
SECTION 2.6. MUTILATED, DESTROYED, LOST OR STOLEN DEBT SECURITIES.
In case any Debt Security shall become mutilated or be destroyed, lost or
stolen, the Company shall execute, and upon its written request the Trustee
shall authenticate and deliver, a new Debt Security bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Debt Security, or in lieu of and in substitution for the Debt Security so
destroyed, lost or stolen. In every case the applicant for a substituted Debt
Security shall furnish to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Debt Security and of the ownership thereof.
The Trustee may authenticate any such substituted Debt Security and
deliver the same upon the written request or authorization of any officer of
the Company. Upon the issuance of any substituted Debt Security, 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 connected therewith. In case any Debt Security which has matured or
is about to mature or has been called for redemption in full shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of
issuing a substitute Debt Security, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Debt Security)
if the applicant for such payment shall furnish to the Company and the
Trustee such security or indemnity as may be required by them to save each of
them harmless and, in case of destruction, loss or theft, evidence
satisfactory to the Company and to the Trustee of the destruction, loss or
theft of such Debt Security and of the ownership thereof.
Every substituted Debt Security issued pursuant to the provisions of
this Section 2.6 by virtue of the fact that any such Debt Security is
destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security shall be found at any time, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Debt Securities duly issued hereunder. All Debt Securities shall be held and
owned upon the express condition that, to the extent permitted by applicable
law, the foregoing provisions are exclusive with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Debt Securities and shall
preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.7. TEMPORARY DEBT SECURITIES. Pending the preparation of
definitive Debt Securities, the Company may execute and the Trustee shall
authenticate and make available for delivery temporary Debt Securities that
are typed, printed or lithographed. Temporary Debt Securities shall be
issuable in any authorized denomination, and substantially in the form of the
definitive Debt Securities in lieu of which they are issued but with such
omissions, insertions and variations as may be appropriate for temporary Debt
Securities, all as may be determined by the Company. Every such temporary
Debt Security shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and
with the same effect, as the definitive Debt Securities. Without unreasonable
delay the Company will execute and deliver to the Trustee or the
Authenticating Agent
11
definitive Debt Securities and thereupon any or all temporary Debt Securities
may be surrendered in exchange therefor, at the principal corporate trust
office of the Trustee or at any office or agency maintained by the Company
for such purpose as provided in Section 3.2, and the Trustee or the
Authenticating Agent shall authenticate and make available for delivery in
exchange for such temporary Debt Securities a like aggregate principal amount
of such definitive Debt Securities. Such exchange shall be made by the
Company at its own expense and without any charge therefor except that in
case of any such exchange involving a registration of transfer the Company
may require payment of a sum sufficient to cover any tax, fee or other
governmental charge that may be imposed in relation thereto. Until so
exchanged, the temporary Debt Securities shall in all respects be entitled to
the same benefits under this Indenture as definitive Debt Securities
authenticated and delivered hereunder.
SECTION 2.8. PAYMENT OF INTEREST AND ADDITIONAL INTEREST. Interest
at the Interest Rate and any Additional Interest on any Debt Security that is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date for Debt Securities shall be paid to the Person in whose name said Debt
Security (or one or more Predecessor Securities) is registered at the close
of business on the regular record date for such interest installment except
that interest and any Additional Interest payable on the Maturity Date shall
be paid to the Person to whom principal is paid. In the event that any Debt
Security or portion thereof is called for redemption and the redemption date
is subsequent to a regular record date with respect to any Interest Payment
Date and prior to such Interest Payment Date, interest on such Debt Security
will be paid upon presentation and surrender of such Debt Security.
Any interest on any Debt Security, other than Additional Interest,
that 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 registered holder on the relevant regular record
date by virtue of having been such holder; and such Defaulted Interest shall
be paid by the Company to the Persons in whose names such Debt 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 at least 25 days prior to the date of the proposed payment
of the amount of Defaulted Interest proposed to be paid on each such Debt
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 not be more than
15 nor 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 Securityholder at its address as it appears in the Debt 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 mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names such Debt Securities (or their respective
Predecessor Securities) are registered on such special record date and shall
be no longer payable.
The Company may make payment of any Defaulted Interest on any Debt
Securities in any other lawful manner after notice given by the Company to
the Trustee of the proposed payment method; PROVIDED, HOWEVER, the Trustee in
its sole discretion deems such payment method to be practical.
12
Any interest scheduled to become payable on an Interest Payment Date
occurring during an Extension Period shall not be Defaulted Interest and
shall be payable on such other date as may be specified in the terms of such
Debt Securities.
The term "regular record date" as used in this Section shall mean
the close of business on the 15th day next preceding the applicable Interest
Payment Date.
Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Debt Security shall carry the rights
to interest accrued and unpaid, and to accrue, that were carried by such
other Debt Security.
SECTION 2.9. CANCELLATION OF DEBT SECURITIES PAID, ETC. All Debt
Securities surrendered for the purpose of payment, redemption, exchange or
registration of transfer, shall, if surrendered to the Company or any paying
agent, be surrendered to the Trustee and promptly canceled by it, or, if
surrendered to the Trustee or any Authenticating Agent, shall be promptly
canceled by it, and no Debt Securities shall be issued in lieu thereof except
as expressly permitted by any of the provisions of this Indenture. All Debt
Securities canceled by any Authenticating Agent shall be delivered to the
Trustee. The Trustee shall destroy all canceled Debt Securities unless the
Company otherwise directs the Trustee in writing. If the Company shall
acquire any of the Debt Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by
such Debt Securities unless and until the same are surrendered to the Trustee
for cancellation.
SECTION 2.10. COMPUTATION OF INTEREST. The amount of interest
payable for any period will be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 2.11. EXTENSION OF INTEREST PAYMENT PERIOD. So long as no
Event of Default has occurred and is continuing, the Company shall have the
right, from time to time, and without causing an Event of Default, to defer
payments of interest on the Debt Securities by extending the interest payment
period on the Debt Securities at any time and from time to time during the
term of the Debt Securities, for up to 10 consecutive semi-annual periods
(each such extended interest payment period, an "EXTENSION PERIOD"), during
which Extension Period no interest shall be due and payable. No Extension
Period may end on a date other than an Interest Payment Date. At the end of
any such Extension Period the Company shall pay all interest then accrued and
unpaid on the Debt Securities (together with Additional Interest thereon);
PROVIDED, HOWEVER, that no Extension Period may extend beyond the Maturity
Date; PROVIDED FURTHER, HOWEVER, that during any such Extension Period, the
Company shall not and shall not permit any Affiliate to (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company's or such Affiliate's
capital stock (other than payments of dividends or distributions to the
Company) or make any guarantee payments with respect to the foregoing or (ii)
make any payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company or any Affiliate that
rank PARI PASSU in all respects with or junior in interest to the Debt
Securities (other than, with respect to clauses (i) or (ii) above, (a)
repurchases, redemptions or other acquisitions of shares of capital stock of
the Company in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of one or more employees,
officers, directors or consultants, in connection with a dividend
reinvestment or stockholder stock purchase plan or in connection with the
issuance of capital stock of the Company (or securities convertible into or
exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a
result of any exchange or conversion of any class or series of the Company's
capital stock (or any capital stock of a subsidiary of the Company) for any
class or series of the Company's capital stock or of any class or series of
the Company's indebtedness for any class or series of the Company's capital
stock, (c) the purchase of
13
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (d) any declaration of a dividend in connection with
any stockholder's rights plan, or the issuance of rights, stock or other
property under any stockholder's rights plan, or the redemption or repurchase
of rights pursuant thereto, (e) any dividend in the form of stock, warrants,
options or other rights where the dividend stock or the stock issuable upon
exercise of such warrants, options or other rights is the same stock as that
on which the dividend is being paid or ranks PARI PASSU with or junior to
such stock and any cash payments in lieu of fractional shares issued in
connection therewith, or (f) payments under the Capital Securities
Guarantee). Prior to the termination of any Extension Period, the Company may
further extend such period, provided that such period together with all such
previous and further consecutive extensions thereof shall not exceed 10
consecutive semi-annual periods, or extend beyond the Maturity Date. Upon the
termination of any Extension Period and upon the payment of all accrued and
unpaid interest and Additional Interest, the Company may commence a new
Extension Period, subject to the foregoing requirements. No interest or
Additional Interest shall be due and payable during an Extension Period,
except at the end thereof, but each installment of interest that would
otherwise have been due and payable during such Extension Period shall bear
Additional Interest to the extent permitted by applicable law. The Company
must give the Trustee notice of its election to begin such Extension Period
at least 5 Business Days prior to the earlier of (i) the date interest on the
Debt Securities would have been payable except for the election to begin such
Extension Period or (ii) the date such interest is payable, but in any event
not less than 5 Business Days prior to such record date. The Trustee shall
give notice of the Company's election to begin a new Extension Period to the
Securityholders.
SECTION 2.12. CUSIP NUMBERS. The Company in issuing the Debt
Securities may use "CUSIP" numbers (if then generally in use), and, if so,
the Trustee shall use CUSIP numbers in notices of redemption as a convenience
to Securityholders; PROVIDED, HOWEVER, that any such notice may state that no
representation is made as to the correctness of such numbers either as
printed on the Debt Securities or as contained in any notice of a redemption
and that reliance may be placed only on the other identification numbers
printed on the Debt Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly
notify the Trustee in writing of any change in the CUSIP numbers.
ARTICLE III.
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.1. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST; AGREED
TREATMENT OF THE DEBT SECURITIES.
(a) The Company covenants and agrees that it will duly and
punctually pay or cause to be paid the principal of and premium, if any, and
interest and any Additional Interest on the Debt Securities at the place, at
the respective times and in the manner provided in this Indenture and the
Debt Securities. Each installment of interest on the Debt Securities may be
paid (i) by mailing checks for such interest payable to the order of the
holder of Debt Securities entitled thereto as they appear on the registry
books of the Company if a request for a wire transfer has not been received
by the Company or (ii) by wire transfer to any account with a banking
institution located in the United States designated in writing by such Person
to the paying agent no later than the related record date. Notwithstanding
the foregoing, so long as the holder of this Debt Security is the
Institutional Trustee, the payment of the principal of and interest on this
Debt Security will be made in immediately available funds at such place and
to such account as may be designated by the Institutional Trustee.
(b) The Company will treat the Debt Securities as indebtedness, and
the amounts payable in respect of the principal amount of such Debt
Securities as interest, for all United States federal income tax
14
purposes. All payments in respect of such Debt Securities will be made free
and clear of United States withholding tax to any beneficial owner thereof
that has provided an Internal Revenue Service Form W8 BEN (or any substitute
or successor form) establishing its non-United States status for United
States federal income tax purposes.
(c) The Company has no present intention to exercise its right under
Section 2.11 to defer payments of interest on the Debt Securities by
commencing an Extension Period.
(d) The Company believes that the likelihood that it would exercise
its right under Section 2.11 to defer payments of interest on the Debt
Securities by commencing an Extension Period at any time during which the
Debt Securities are outstanding is remote because of the restrictions that
would be imposed on the Company's ability to declare or pay dividends or
distributions on, or to redeem, purchase or make a liquidation payment with
respect to, any of its outstanding equity and on the Company's ability to
make any payments of principal of or interest on, or repurchase or redeem,
any of its debt securities that rank PARI PASSU in all respects with (or
junior in interest to) the Debt Securities.
SECTION 3.2. OFFICES FOR NOTICES AND PAYMENTS, ETC. So long as any
of the Debt Securities remain outstanding, the Company will maintain in
Hartford, Connecticut, an office or agency where the Debt Securities may be
presented for payment, an office or agency where the Debt Securities may be
presented for registration of transfer and for exchange as in this Indenture
provided and an office or agency where notices and demands to or upon the
Company in respect of the Debt Securities or of this Indenture may be served.
The Company will give to the Trustee written notice of the location of any
such office or agency and of any change of location thereof. Until otherwise
designated from time to time by the Company in a notice to the Trustee, or
specified as contemplated by Section 2.5, such office or agency for all of
the above purposes shall be the office or agency of the Trustee. In case the
Company shall fail to maintain any such office or agency in Hartford,
Connecticut, or shall fail to give such notice of the location or of any
change in the location thereof, presentations and demands may be made and
notices may be served at the principal corporate trust office of the Trustee.
In addition to any such office or agency, the Company may from time
to time designate one or more offices or agencies outside Hartford,
Connecticut, where the Debt Securities may be presented for registration of
transfer and for exchange in the manner provided in this Indenture, and the
Company may from time to time rescind such designation, as the Company may
deem desirable or expedient; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain any such office or agency in Hartford, Connecticut, for the purposes
above mentioned. The Company will give to the Trustee prompt written notice
of any such designation or rescission thereof.
SECTION 3.3. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE. The
Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 6.9, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 3.4. PROVISION AS TO PAYING AGENT.
(a) If the Company shall appoint a paying agent other than the
Trustee, it will cause such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provision of this Section 3.4,
(1) that it will hold all sums held by it as such agent for
the payment of the principal of and premium, if any, or
interest, if any, on the Debt Securities (whether such sums
have been paid to it by the Company or by any other obligor on
the Debt Securities) in trust for the benefit of the holders
of the Debt Securities;
15
(2) that it will give the Trustee prompt written notice of any
failure by the Company (or by any other obligor on the Debt
Securities) to make any payment of the principal of and
premium, if any, or interest, if any, on the Debt Securities
when the same shall be due and payable; and
(3) that it will, at any time during the continuance of any
Event of Default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such
paying agent.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of and premium, if any, or interest, if
any, on the Debt Securities, set aside, segregate and hold in trust for the
benefit of the holders of the Debt Securities a sum sufficient to pay such
principal, premium or interest so becoming due and will notify the Trustee in
writing of any failure to take such action and of any failure by the Company
(or by any other obligor under the Debt Securities) to make any payment of
the principal of and premium, if any, or interest, if any, on the Debt
Securities when the same shall become due and payable.
Whenever the Company shall have one or more paying agents for the
Debt Securities, it will, on or prior to each due date of the principal of
and premium, if any, or interest, if any, on the Debt Securities, deposit
with a paying agent a sum sufficient to pay the principal, premium or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled thereto and (unless such paying agent is the Trustee) the
Company shall promptly notify the Trustee in writing of its action or failure
to act.
(c) Anything in this Section 3.4 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge with respect to the Debt Securities, or for any other reason, pay,
or direct any paying agent to pay to the Trustee all sums held in trust by
the Company or any such paying agent, such sums to be held by the Trustee
upon the trusts herein contained.
(d) Anything in this Section 3.4 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 3.4 is
subject to Sections 12.3 and 12.4.
SECTION 3.5. CERTIFICATE TO TRUSTEE. The Company will deliver to the
Trustee on or before 120 days after the end of each fiscal year, so long as
Debt Securities are outstanding hereunder, a Certificate stating that in the
course of the performance by the signers of their duties as officers of the
Company they would normally have knowledge of any default during such fiscal
year by the Company in the performance of any covenants contained herein,
stating whether or not they have knowledge of any such default and, if so,
specifying each such default of which the signers have knowledge and the
nature and states thereof.
SECTION 3.6. ADDITIONAL SUMS. If and for so long as the Trust is the
holder of all Debt Securities and the Trust is required to pay any additional
taxes, duties, assessments or other governmental charges as a result of a Tax
Event, the Company will pay such additional amounts ("ADDITIONAL SUMS") on
the Debt Securities as shall be required so that the net amounts received and
retained by the Trust after paying taxes, duties, assessments or other
governmental charges will be equal to the amounts the Trust would have
received if no such taxes, duties, assessments or other governmental charges
had been imposed. Whenever in this Indenture or the Debt Securities there is
a reference in any context to the payment of principal of or interest on the
Debt Securities, such mention shall be deemed to include mention of payments
of the Additional Sums provided for in this paragraph to the extent that, in
such context, Additional Sums are, were or would be payable in respect
thereof pursuant to the provisions of this paragraph and express mention of
the payment of Additional Sums (if applicable) in any provisions hereof shall
not be construed as excluding Additional Sums in those provisions hereof
where such express
16
mention is not made; PROVIDED, HOWEVER, that the deferral of the payment of
interest during an Extension Period pursuant to Section 2.11 shall not defer
the payment of any Additional Sums that may be due and payable.
SECTION 3.7. COMPLIANCE WITH CONSOLIDATION PROVISIONS. The Company
will not, while any of the Debt Securities remain outstanding, consolidate
with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other Person unless the provisions
of Article XI hereof are complied with.
SECTION 3.8. LIMITATION ON DIVIDENDS. If Debt Securities are
initially issued to the Trust or a trustee of such trust in connection with
the issuance of Trust Securities by the Trust (regardless of whether Debt
Securities continue to be held by such Trust) and (i) there shall have
occurred and be continuing any event that would constitute an Event of
Default, (ii) the Company shall be in default with respect to its payment of
any obligations under the Capital Securities Guarantee, or (iii) the Company
shall have given notice of its election to defer payments of interest on the
Debt Securities by extending the interest payment period as provided herein
and such period, or any extension thereof, shall be continuing, then the
Company shall not, and shall not allow any Affiliate of the Company to, (x)
declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the Company's
capital stock or its Affiliates' capital stock (other than payments of
dividends or distributions to the Company) or make any guarantee payments
with respect to the foregoing or (y) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company or any Affiliate that rank PARI PASSU in all
respects with or junior in interest to the Debt Securities (other than, with
respect to clauses (x) and (y) above, (1) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company in connection with any
employment contract, benefit plan or other similar arrangement with or for
the benefit of one or more employees, officers, directors or consultants, in
connection with a dividend reinvestment or stockholder stock purchase plan or
in connection with the issuance of capital stock of the Company (or
securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to the
applicable Extension Period, if any, (2) as a result of any exchange or
conversion of any class or series of the Company's capital stock (or any
capital stock of a subsidiary of the Company) for any class or series of the
Company's capital stock or of any class or series of the Company's
indebtedness for any class or series of the Company's capital stock, (3) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged, (4) any declaration of a dividend
in connection with any stockholder's rights plan, or the issuance of rights,
stock or other property under any stockholder's rights plan, or the
redemption or repurchase of rights pursuant thereto, (5) any dividend in the
form of stock, warrants, options or other rights where the dividend stock or
the stock issuable upon exercise of such warrants, options or other rights is
the same stock as that on which the dividend is being paid or ranks PARI
PASSU with or junior to such stock and any cash payments in lieu of
fractional shares issued in connection therewith, or (6) payments under the
Capital Securities Guarantee).
SECTION 3.9. COVENANTS AS TO THE TRUST. For so long as the Trust
Securities remain outstanding, the Company shall maintain 100% ownership of
the Common Securities; PROVIDED, HOWEVER, that any permitted successor of the
Company under this Indenture may succeed to the Company's ownership of such
Common Securities. The Company, as owner of the Common Securities, shall
cause the Trust (a) to remain a statutory trust, except in connection with a
distribution of Debt Securities to the holders of Trust Securities in
liquidation of the Trust, the redemption of all of the Trust Securities or
certain mergers, consolidations or amalgamations, each as permitted by the
Declaration, (b) to otherwise continue to be classified as a grantor trust
for United States federal income tax purposes and (c) to cause
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each holder of Trust Securities to be treated as owning an undivided
beneficial interest in the Debt Securities.
ARTICLE IV.
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 4.1. SECURITYHOLDERS' LISTS. The Company covenants and
agrees that it will furnish or caused to be furnished to the Trustee:
(a) on each regular record date for the Debt Securities, a list, in
such form as the Trustee may reasonably require, of the names and addresses
of the Securityholders of the Debt Securities as of such 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; except that no such lists need be furnished
under this Section 4.1 so long as the Trustee is in possession thereof by
reason of its acting as Debt Security registrar.
SECTION 4.2. PRESERVATION AND DISCLOSURE OF LISTS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of Debt Securities (1) contained in the most recent list furnished to
it as provided in Section 4.1 or (2) received by it in the capacity of Debt
Securities registrar (if so acting) hereunder. The Trustee may destroy any
list furnished to it as provided in Section 4.1 upon receipt of a new list so
furnished.
(b) In case three or more holders of Debt Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee and furnish to
the Trustee reasonable proof that each such applicant has owned a Debt
Security for a period of at least 6 months preceding the date of such
application, and such application states that the applicants desire to
communicate with other holders of Debt Securities with respect to their
rights under this Indenture or under such Debt Securities and is accompanied
by a copy of the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall within 5 Business Days after the
receipt of such application, at its election, either:
(1) afford such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 4.2, or
(2) inform such applicants as to the approximate number of
holders of Debt Securities whose names and addresses appear in
the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this
Section 4.2, and as to the approximate cost of mailing to such
Securityholders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder whose name and address appear in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.2 a copy of the form of proxy
or other communication which is specified in such request with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days
18
after such tender, the Trustee shall mail to such applicants and file with
the Securities and Exchange Commission, if permitted or required by
applicable law, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing
would be contrary to the best interests of the holders of all Debt
Securities, as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If said
Commission, as permitted or required by applicable law, after opportunity for
a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one or more of such objections, said
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring,
the Trustee shall mail copies of such material to all such Securityholders
with reasonable promptness after the entry of such order and the renewal of
such tender; otherwise the Trustee shall be relieved of any obligation or
duty to such applicants respecting their application.
(c) Each and every holder of Debt Securities, by receiving and
holding the same, agrees with Company and the Trustee that neither the
Company nor the Trustee nor any paying agent shall be held accountable by
reason of the disclosure of any such information as to the names and
addresses of the holders of Debt Securities in accordance with the provisions
of subsection (b) of this Section 4.2, regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made
under said subsection (b).
ARTICLE V.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
UPON AN EVENT OF DEFAULT
SECTION 5.1. 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):
(a) the Company defaults in the payment of any interest upon any
Debt Security when it becomes due and payable, and fails to cure such default
for a period of 30 days; PROVIDED, HOWEVER, that a valid extension of an
interest payment period by the Company in accordance with the terms of this
Indenture shall not constitute a default in the payment of interest for this
purpose; or
(b) the Company defaults in the payment of all or any part of the
principal of (or premium, if any, on) any Debt Securities as and when the
same shall become due and payable either at maturity, upon redemption
(including redemption for any sinking fund), by declaration of acceleration
or otherwise; or
(c) the Company defaults in the performance of, or breaches, any of
its covenants or agreements in this Indenture or in the terms of the Debt
Securities established as contemplated in this Indenture (other than a
covenant or agreement 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 60 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 aggregate principal amount
of the outstanding Debt 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
(d) a court of competent jurisdiction shall enter a decree or order
for relief in respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company or for
any substantial part of its property, or ordering the
19
winding-up or liquidation of its affairs and such decree or order shall
remain unstayed and in effect for a period of 90 consecutive days; or
(e) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency, reorganization or other similar law now or hereafter
in effect, shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the appointment of
or taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Company or of any substantial
part of its property, or shall make any general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become due; or
(f) the Trust shall have voluntarily or involuntarily liquidated,
dissolved, wound-up its business or otherwise terminated its existence except
in connection with (i) the distribution of the Debt Securities to holders of
such Trust Securities in liquidation of their interests in the Trust, (ii)
the redemption of all of the outstanding Trust Securities or (iii) certain
mergers, consolidations or amalgamations, each as permitted by the
Declaration.
If an Event of Default occurs and is continuing with respect to the
Debt Securities, then, and in each and every such case, unless the principal
of the Debt Securities shall have already become due and payable, either the
Trustee or the holders of not less than 25% in aggregate principal amount of
the Debt Securities then outstanding hereunder, by notice in writing to the
Company (and to the Trustee if given by Securityholders), may declare the
entire principal of the Debt Securities and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration the
same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal of the Debt Securities shall have been so
declared due and payable, and before any judgment or decree for the payment
of the moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Debt
Securities and the principal of and premium, if any, on the Debt Securities
which shall have become due otherwise than by acceleration (with interest
upon such principal and premium, if any, and Additional Interest) and such
amount as shall be sufficient to cover reasonable compensation to the Trustee
and each predecessor Trustee, their respective agents, attorneys and counsel,
and all other amounts due to the Trustee pursuant to Section 6.6, and if any
and all Events of Default under this Indenture, other than the non-payment of
the principal of or premium, if any, on Debt Securities which shall have
become due by acceleration, shall have been cured, waived or otherwise
remedied as provided herein -- then and in every such case the holders of a
majority in aggregate principal amount of the Debt Securities then
outstanding, by written notice to the Company and to the Trustee, may waive
all defaults and rescind and annul such declaration and its consequences, but
no such waiver or rescission and annulment shall extend to or shall affect
any subsequent default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the Trustee and the holders of the Debt Securities shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the Trustee and the holders of the Debt
Securities shall continue as though no such proceeding had been taken.
SECTION 5.2. PAYMENT OF DEBT SECURITIES ON DEFAULT; SUIT THEREFOR.
The Company covenants that (a) in case default shall be made in the payment
of any installment of interest upon any of the Debt Securities as and when
the same shall become due and payable, and such default shall have
20
continued for a period of 30 days, or (b) in case default shall be made in
the payment of the principal of or premium, if any, on any of the Debt
Securities as and when the same shall have become due and payable, whether at
maturity of the Debt Securities or upon redemption or by declaration of
acceleration or otherwise -- then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the holders of the Debt
Securities the whole amount that then shall have become due and payable on
all Debt Securities for principal and premium, if any, or interest, or both,
as the case may be, with Additional Interest accrued on the Debt Securities
(to the extent that payment of such interest is enforceable under applicable
law and, if the Debt Securities are held by the Trust or a trustee of such
Trust, without duplication of any other amounts paid by the Trust or a
trustee in respect thereof); and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
a reasonable compensation to the Trustee, its agents, attorneys and counsel,
and any other amounts due to the Trustee under Section 6.6. In case the
Company shall fail forthwith to pay such amounts upon such demand, the
Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce
any such judgment or final decree against the Company or any other obligor on
such Debt Securities and collect in the manner provided by law out of the
property of the Company or any other obligor on such Debt Securities wherever
situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Debt Securities
under Bankruptcy Law, or in case a receiver or trustee shall have been
appointed for the property of the Company or such other obligor, or in the
case of any other similar judicial proceedings relative to the Company or
other obligor upon the Debt Securities, or to the creditors or property of
the Company or such other obligor, the Trustee, irrespective of whether the
principal of the Debt Securities shall then be due and payable as therein
expressed or by declaration of acceleration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section 5.2, shall be entitled and empowered, by intervention in such
proceedings or otherwise,
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Debt
Securities and, in case of any judicial proceedings,
(ii) to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of
the Trustee (including any claim for reasonable compensation
to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for
reimbursement of all other amounts due to the Trustee under
Section 6.6, and of the Securityholders allowed in such
judicial proceedings relative to the Company or any other
obligor on the Debt Securities, or to the creditors or
property of the Company or such other obligor, unless
prohibited by applicable law and regulations, to vote on
behalf of the holders of the Debt Securities in any election
of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or Person performing similar functions in
comparable proceedings,
(iii) to collect and receive any moneys or other property payable or
deliverable on any such claims, and
(iv) to distribute the same after the deduction of its charges and
expenses.
Any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the Securityholders to make such payments to the
Trustee, and, in the event that the Trustee shall consent to
21
the making of such payments directly to the Securityholders, to pay to the
Trustee such amounts as shall be sufficient to cover reasonable compensation
to the Trustee, each predecessor Trustee and their respective agents,
attorneys and counsel, and all other amounts due to the Trustee under Section
6.6.
Nothing herein contained shall be construed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting
the Debt Securities or the rights of any holder thereof or to authorize the
Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
All rights of action and of asserting claims under this Indenture,
or under any of the Debt Securities, may be enforced by the Trustee without
the possession of any of the Debt Securities, or the production thereof at
any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall be for the
ratable benefit of the holders of the Debt Securities.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
holders of the Debt Securities, and it shall not be necessary to make any
holders of the Debt Securities parties to any such proceedings.
SECTION 5.3. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys
collected by the Trustee pursuant to this Article V shall be applied in the
following order, at the date or dates fixed by the Trustee for the
distribution of such moneys, upon presentation of the several Debt Securities
in respect of which moneys have been collected, and stamping thereon the
payment, if only partially paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses incurred by, and
reasonable fees of, the Trustee, its agents, attorneys and counsel, and of
all other amounts due to the Trustee under Section 6.6;
Second: To the payment of all Senior Indebtedness of the Company if
and to the extent required by Article XV;
Third: To the payment of the amounts then due and unpaid upon Debt
Securities for principal (and premium, if any), and interest on the Debt
Securities, in respect of which or for the benefit of which money has been
collected, ratably, without preference or priority of any kind, according to
the amounts due on such Debt Securities for principal (and premium, if any)
and interest, respectively; and
Fourth: The balance, if any, to the Company.
SECTION 5.4. PROCEEDINGS BY SECURITYHOLDERS. No holder of any Debt
Security shall have any right to institute any suit, action or proceeding for
any remedy hereunder, unless such holder previously shall have given to the
Trustee written notice of an Event of Default with respect to the Debt
Securities and unless the holders of not less than 25% in aggregate principal
amount of the Debt Securities then outstanding shall have given the Trustee a
written request to institute such action, suit or proceeding and shall have
offered to the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred thereby, and the Trustee
for 60 days after its receipt of such notice, request and offer of indemnity
shall have failed to institute any such action, suit or proceeding; PROVIDED,
HOWEVER, that no holder of Debt Securities shall have any right to prejudice
the rights of any other holder of Debt Securities, obtain priority or
preference over any other such holder or enforce any right under this
Indenture except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Debt Securities.
22
Notwithstanding any other provisions in this Indenture, however, the
right of any holder of any Debt Security to receive payment of the principal
of, premium, if any, and interest, on such Debt Security when due, or to
institute suit for the enforcement of any such payment, shall not be impaired
or affected without the consent of such holder and by accepting a Debt
Security hereunder it is expressly understood, intended and covenanted by the
taker and holder of every Debt Security with every other such taker and
holder and the Trustee, that no one or more holders of Debt Securities shall
have any right in any manner whatsoever by virtue or by availing itself of
any provision of this Indenture to affect, disturb or prejudice the rights of
the holders of any other Debt Securities, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce any right
under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Debt Securities. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 5.5. PROCEEDINGS BY TRUSTEE. In case of an Event of Default
hereunder the Trustee may in its discretion proceed to protect and enforce
the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any of such rights, either by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for the specific enforcement
of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.6. REMEDIES CUMULATIVE AND CONTINUING; DELAY OR OMISSION
NOT A WAIVER. Except as otherwise provided in Section 2.6, all powers and
remedies given by this Article V to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive
of any other powers and remedies available to the Trustee or the holders of
the Debt Securities, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to the Debt Securities, and
no delay or omission of the Trustee or of any holder of any of the Debt
Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power,
or shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 5.4, every power and
remedy given by this Article V or by law to the Trustee or to the
Securityholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Securityholders.
No delay or omission of the Trustee or any Securityholder 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 any Securityholder may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee (in accordance
with its duties under Section 6.1 hereof) or by such holder, as the case may
be.
SECTION 5.7. DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY
MAJORITY OF SECURITYHOLDERS. The holders of a majority in aggregate principal
amount of the Debt Securities affected (voting as one class) at the time
outstanding 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 with respect to such
Debt Securities; PROVIDED, HOWEVER, that (subject to the provisions of
Section 6.1) the Trustee shall have the right to decline to follow any such
direction if the Trustee shall determine that the action so directed would be
unjustly prejudicial to the holders not taking part in such direction or if
the Trustee being advised by counsel determines that the action or proceeding
so directed may not lawfully be taken or if a Responsible Officer of the
Trustee shall determine that the action or proceedings so directed would
involve the Trustee in personal liability.
23
Prior to any declaration accelerating the maturity of the Debt
Securities, the holders of a majority in aggregate principal amount of the
Debt Securities at the time outstanding may on behalf of the holders of all
of the Debt Securities waive (or modify any previously granted waiver of) any
past default or Event of Default, and its consequences, except a default (a)
in the payment of principal of, premium, if any, or interest on any of the
Debt Securities, (b) in respect of covenants or provisions hereof which
cannot be modified or amended without the consent of the holder of each Debt
Security affected, or (c) in respect of the covenants contained in Section
3.9; PROVIDED, HOWEVER, that if the Debt Securities are held by the Trust or
a trustee of such trust, such waiver or modification to such waiver shall not
be effective until the holders of a majority in Liquidation Amount of Trust
Securities of the Trust shall have consented to such waiver or modification
to such waiver, PROVIDED, FURTHER, that if the consent of the holder of each
outstanding Debt Security is required, such waiver shall not be effective
until each holder of the Trust Securities of the Trust shall have consented
to such waiver. Upon any such waiver, the default covered thereby shall be
deemed to be cured for all purposes of this Indenture and the Company, the
Trustee and the holders of the Debt Securities shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon. Whenever any default or Event of Default hereunder
shall have been waived as permitted by this Section, said default or Event of
Default shall for all purposes of the Debt Securities and this Indenture be
deemed to have been cured and to be not continuing.
SECTION 5.8. NOTICE OF DEFAULTS. The Trustee shall, within 90 days
after the actual knowledge by a Responsible Officer of the Trustee of the
occurrence of a default with respect to the Debt Securities, mail to all
Securityholders, as the names and addresses of such holders appear upon the
Debt Security Register, notice of all defaults with respect to the Debt
Securities known to the Trustee, unless such defaults shall have been cured
before the giving of such notice (the term "defaults" for the purpose of this
Section 5.8 being hereby defined to be the events specified in clauses (a),
(b), (c), (d) and (e) of Section 5.1, not including periods of grace, if any,
provided for therein; PROVIDED, HOWEVER, that, except in the case of default
in the payment of the principal of, premium, if any, or interest on any of
the Debt Securities, the Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Securityholders.
SECTION 5.9. UNDERTAKING TO PAY COSTS. All parties to this Indenture
agree, and each holder of any Debt Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, 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 or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, against
any party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; PROVIDED,
HOWEVER, that the provisions of this Section 5.9 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder, or
group of Securityholders, holding in the aggregate more than 10% in principal
amount of the Debt Securities outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Debt Security against the Company on or
after the same shall have become due and payable.
ARTICLE VI.
CONCERNING THE TRUSTEE
SECTION 6.1. DUTIES AND RESPONSIBILITIES OF TRUSTEE. With respect to
the holders of Debt Securities issued hereunder, the Trustee, prior to the
occurrence of an Event of Default with respect to the Debt Securities and
after the curing or waiving of all Events of Default which may have occurred,
with respect to the Debt Securities, undertakes to perform such duties and
only such duties as are specifically
24
set forth in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to
the Debt Securities has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to
Debt Securities and after the curing or waiving of all Events of Default
which may have occurred
(1) the duties and obligations of the Trustee with respect to
Debt Securities shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and
obligations with respect to the Debt Securities as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee, and
(2) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but, in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith, in accordance with the direction
of the Securityholders pursuant to Section 5.7, relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any
of its rights or powers, if there is ground for believing that the repayment
of such funds or liability is not assured to it under the terms of this
Indenture or indemnity satisfactory to the Trustee against such risk is not
reasonably assured to it.
SECTION 6.2. RELIANCE ON DOCUMENTS, OPINIONS, ETC. Except as
otherwise provided in Section 6.1:
(a) the Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
bond, note, debenture 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, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein
25
specifically prescribed); and any Board Resolution may be evidenced to the
Trustee by a copy thereof certified by the Secretary or an Assistant
Secretary of the Company;
(c) the Trustee may consult with counsel of its selection and any
advice or 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 accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture; nothing
contained herein shall, however, relieve the Trustee of the obligation, upon
the occurrence of an Event of Default with respect to the Debt Securities
(that has not been cured or waived) to exercise with respect to Debt
Securities such of the rights and powers vested in it by this Indenture, and
to use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs;
(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, consent, order, approval, bond,
debenture, coupon or other paper or document, unless requested in writing to
do so by the holders of not less than a majority in aggregate principal
amount of the outstanding Debt Securities affected thereby; PROVIDED,
HOWEVER, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expense or
liability as a condition to so proceeding;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents
(including any Authenticating Agent) or attorneys, and the Trustee shall not
be responsible for any misconduct or negligence on the part of any such agent
or attorney appointed by it with due care; and
(h) with the exceptions of defaults under Sections 5.1(a) or 5.1(b),
the Trustee shall not be charged with knowledge of any Default or Event of
Default with respect to the Debt Securities unless a written notice of such
Default or Event of Default shall have been given to the Trustee by the
Company or any other obligor on the Debt Securities or by any holder of the
Debt Securities.
SECTION 6.3. NO RESPONSIBILITY FOR RECITALS, ETC. The recitals
contained herein and in the Debt Securities (except in the certificate of
authentication of the Trustee or the Authenticating Agent) shall be taken as
the statements of the Company, and the Trustee and the Authenticating Agent
assume no responsibility for the correctness of the same. The Trustee and the
Authenticating Agent make no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities. The Trustee and the
Authenticating Agent shall not be accountable for the use or application by
the Company of any Debt Securities or the proceeds of any Debt Securities
authenticated and delivered by the Trustee or the Authenticating Agent in
conformity with the provisions of this Indenture.
SECTION 6.4. TRUSTEE, AUTHENTICATING AGENT, PAYING AGENTS, TRANSFER
AGENTS OR REGISTRAR MAY OWN DEBT SECURITIES. The Trustee or any
Authenticating Agent or any paying agent or any transfer
26
agent or any Debt Security registrar, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities with the same
rights it would have if it were not Trustee, Authenticating Agent, paying
agent, transfer agent or Debt Security registrar.
SECTION 6.5. MONEYS TO BE HELD IN TRUST. Subject to the provisions
of Section 12.4, all moneys received by the Trustee or any paying agent
shall, until used or applied as herein provided, be held in trust for the
purpose for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee and any paying agent
shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company. So long as
no Event of Default shall have occurred and be continuing, all interest
allowed on any such moneys shall be paid from time to time upon the written
order of the Company, signed by the [Chairman of the Board of Directors, the
President, a Managing Director, a Vice President the Treasurer or an Assistant
Treasurer] of the Company.
SECTION 6.6. COMPENSATION AND EXPENSES OF TRUSTEE. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as shall be agreed to in writing
between the Company and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust), and the Company will pay or reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its counsel and of all Persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or willful
misconduct. The Company also covenants to indemnify each of the Trustee or
any predecessor Trustee (and its officers, agents, directors and employees)
for, and to hold it harmless against, any and all loss, damage, claim,
liability or expense including taxes (other than taxes based on the income of
the Trustee) incurred without negligence or willful misconduct on the part of
the Trustee and 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 of liability. The obligations of the Company under
this Section 6.6 to compensate and indemnify the Trustee and to pay or
reimburse the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder. Such additional indebtedness
shall be secured by a lien prior to that of the Debt Securities upon all
property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the holders of particular Debt Securities.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(d), Section
5.1(e) or Section 5.1(f), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended
to constitute expenses of administration under any applicable federal or
state bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the resignation or
removal of the Trustee and the defeasance or other termination of this
Indenture.
Notwithstanding anything in this Indenture or any Debt Security to
the contrary, the Trustee shall have no obligation whatsoever to advance
funds to pay any principal of or interest on or other amounts with respect to
the Debt Securities or otherwise advance funds to or on behalf of the Company.
SECTION 6.7. OFFICERS' CERTIFICATE AS EVIDENCE. Except as otherwise
provided in Sections 6.1 and 6.2, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on
the part of the Trustee, be deemed to be conclusively proved and
27
established by an Officers' Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken or omitted
by it under the provisions of this Indenture upon the faith thereof.
SECTION 6.8. ELIGIBILITY OF TRUSTEE. The Trustee hereunder shall at
all times be a corporation organized and doing business under the laws of the
United States of America or any state or territory thereof or of the District
of Columbia or a corporation or other Person authorized under such laws to
exercise corporate trust powers, having (or whose obligations under this
Indenture are guaranteed by an affiliate having) a combined capital and
surplus of at least 50 million U.S. dollars ($50,000,000) and subject to
supervision or examination by federal, state, territorial, or District of
Columbia authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 6.8
the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent records of
condition so published.
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company, serve
as Trustee.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.8, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.9.
SECTION 6.9. RESIGNATION OR REMOVAL OF TRUSTEE
(a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign by giving written notice of such resignation to the
Company and by mailing notice thereof, at the Company's expense, to the
holders of the Debt Securities at their addresses as they shall appear on the
Debt Security Register. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee or trustees by written
instrument, in duplicate, executed by order of its Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor Trustee. If no successor Trustee shall have been so
appointed and have accepted appointment within 30 days after the mailing of
such notice of resignation to the affected Securityholders, the resigning
Trustee may petition any court of competent jurisdiction for the appointment
of a successor Trustee, or any Securityholder who has been a bona fide holder
of a Debt Security or Debt Securities for at least six months may, subject to
the provisions of Section 5.9, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor Trustee.
Such court may thereupon, after such notice, if any, as it may deem proper
and prescribe, appoint a successor Trustee.
(b) In case at any time any of the following shall occur --
(1) the Trustee shall fail to comply with the provisions of
Section 6.8 after written request therefor by the Company or
by any Securityholder who has been a bona fide holder of a
Debt Security or Debt Securities for at least 6 months, or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.8 and shall fail to resign after
written request therefor by the Company or by any such
Securityholder, 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
28
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, the Company may remove the Trustee and
appoint a successor Trustee by written instrument, in
duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor Trustee, or, subject to
the provisions of Section 5.9, any Securityholder who has been
a bona fide holder of a Debt Security or Debt Securities for
at least 6 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. Such court may thereupon,
after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint successor Trustee.
(c) Upon prior written notice to the Company and the Trustee, the
holders of a majority in aggregate principal amount of the Debt Securities at
the time outstanding may at any time remove the Trustee and nominate a
successor Trustee, which shall be deemed appointed as successor Trustee
unless within 10 Business Days after such nomination the Company objects
thereto, in which case, or in the case of a failure by such holders to
nominate a successor Trustee, the Trustee so removed or any Securityholder,
upon the terms and conditions and otherwise as in subsection (a) of this
Section 6.9 provided, may petition any court of competent jurisdiction for an
appointment of a successor.
(d) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor Trustee as
provided in Section 6.10.
SECTION 6.10. ACCEPTANCE BY SUCCESSOR TRUSTEE. Any successor Trustee
appointed as provided in Section 6.9 shall execute, acknowledge and deliver
to the Company and to its predecessor Trustee an instrument accepting such
appointment hereunder, 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, duties and obligations with respect to the Debt Securities of its
predecessor hereunder, with like effect as if originally named as Trustee
herein; but, nevertheless, on the written request of the Company or of the
successor Trustee, the Trustee ceasing to act shall, upon payment of any
amounts then due it pursuant to the provisions of Section 6.6, execute and
deliver an instrument transferring to such successor Trustee all the rights
and powers of the Trustee so ceasing to act and shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such
retiring Trustee thereunder. Upon request of any such successor Trustee, the
Company shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor Trustee all such rights
and powers. Any Trustee ceasing to act shall, nevertheless, retain a lien
upon all property or funds held or collected by such Trustee to secure any
amounts then due it pursuant to the provisions of Section 6.6.
If a successor Trustee is appointed, the Company, the retiring
Trustee and the successor Trustee shall execute and deliver an indenture
supplemental hereto which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Debt Securities as to
which the predecessor Trustee is not retiring shall continue to be vested in
the predecessor Trustee, and shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the Trust hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be Trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee.
29
No successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Trustee shall be
eligible under the provisions of Section 6.8.
In no event shall a retiring Trustee be liable for the acts or
omissions of any successor Trustee hereunder.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 6.10, the Company shall mail notice of the succession of such
Trustee hereunder to the holders of Debt Securities at their addresses as
they shall appear on the Debt Security Register. If the Company fails to mail
such notice within 10 Business Days after the acceptance of appointment by
the successor Trustee, the successor Trustee shall cause such notice to be
mailed at the expense of the Company.
SECTION 6.11. SUCCESSION BY MERGER, ETC. 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 of the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto; PROVIDED
such corporation shall be otherwise eligible and qualified under this Article.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any of the Debt Securities shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee, and
deliver such Debt Securities so authenticated; and in case at that time any
of the Debt Securities shall not have been authenticated, any successor to
the Trustee may authenticate such Debt Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all
such cases such certificates shall have the full force which it is anywhere
in the Debt Securities or in this Indenture provided that the certificate of
the Trustee shall have; PROVIDED, HOWEVER, that the right to adopt the
certificate of authentication of any predecessor Trustee or authenticate Debt
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
SECTION 6.12. AUTHENTICATING AGENTS. There may be one or more
Authenticating Agents appointed by the Trustee upon the request of the
Company with power to act on its behalf and subject to its direction in the
authentication and delivery of Debt Securities issued upon exchange or
registration of transfer thereof as fully to all intents and purposes as
though any such Authenticating Agent had been expressly authorized to
authenticate and deliver Debt Securities; PROVIDED, HOWEVER, that the Trustee
shall have no liability to the Company for any acts or omissions of the
Authenticating Agent with respect to the authentication and delivery of Debt
Securities. Any such Authenticating Agent shall at all times be a corporation
organized and doing business under the laws of the United States or of any
state or territory thereof or of the District of Columbia authorized under
such laws to act as Authenticating Agent, having a combined capital and
surplus of at least $5,000,000 and being subject to supervision or
examination by federal, state, territorial or District of Columbia authority.
If such corporation publishes reports of condition at least annually pursuant
to law or the requirements of such authority, then for the purposes of this
Section 6.12 the combined capital and surplus of such corporation 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,
it shall resign immediately in the manner and with the effect herein
specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating
Agent shall be a party, or any corporation succeeding to all or substantially
all of the corporate trust business of any Authenticating Agent, shall be the
successor of such Authenticating
30
Agent hereunder, if such successor corporation is otherwise eligible under
this Section 6.12 without the execution or filing of any paper or any further
act on the part of the parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time terminate the agency of any Authenticating Agent with respect to the
Debt Securities by giving written notice of termination 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 any
Authenticating Agent shall cease to be eligible under this Section 6.12, the
Trustee may, and upon the request of the Company shall, promptly appoint a
successor Authenticating Agent eligible under this Section 6.12, shall give
written notice of such appointment to the Company and shall mail notice of
such appointment to all holders of Debt Securities as the names and addresses
of such holders appear on the Debt Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall
become vested with all rights, powers, duties and responsibilities with
respect to the Debt Securities of its predecessor hereunder, with like effect
as if originally named as Authenticating Agent herein.
The Company agrees to pay to any Authenticating Agent from time to
time reasonable compensation for its services. Any Authenticating Agent shall
have no responsibility or liability for any action taken by it as such in
accordance with the directions of the Trustee.
ARTICLE VII.
CONCERNING THE SECURITYHOLDERS
SECTION 7.1. ACTION BY SECURITYHOLDERS. Whenever in this Indenture
it is provided that the holders of a specified percentage in aggregate
principal amount of the Debt Securities may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver
or the taking of any other action) the fact that at the time of taking any
such action the holders of such specified percentage have joined therein may
be evidenced (a) by any instrument or any number of instruments of similar
tenor executed by such Securityholders in person or by agent or proxy
appointed in writing, or (b) by the record of such holders of Debt Securities
voting in favor thereof at any meeting of such Securityholders duly called
and held in accordance with the provisions of Article VIII, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of such Securityholders or (d) by any other method the Trustee deems
satisfactory.
If the Company shall solicit from the Securityholders any request,
demand, authorization, direction, notice, consent, waiver or other action or
revocation of the same, the Company may, at its option, as evidenced by an
Officers' Certificate, fix in advance a record date for such Debt Securities
for the determination of Securityholders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other action or
revocation of the same, but the Company shall have no obligation to do so. If
such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other action or revocation of the same may be
given before or after the record date, but only the Securityholders of record
at the close of business on the record date shall be deemed to be
Securityholders for the purposes of determining whether Securityholders of
the requisite proportion of outstanding Debt Securities have authorized or
agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other action or revocation of the same, and for
that purpose the outstanding Debt Securities shall be computed as of the
record date; PROVIDED, HOWEVER, that no such authorization, agreement or
consent by such Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than 6 months after the record date.
31
SECTION 7.2. PROOF OF EXECUTION BY SECURITYHOLDERS. Subject to the
provisions of Section 6.1, 6.2 and 8.5, proof of the execution of any
instrument by a Securityholder or his agent or proxy shall be sufficient if
made in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee. The ownership of Debt Securities shall be proved by the Debt
Security Register or by a certificate of the Debt Security registrar. The
Trustee may require such additional proof of any matter referred to in this
Section as it shall deem necessary.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 8.6.
SECTION 7.3. WHO ARE DEEMED ABSOLUTE OWNERS. Prior to due
presentment for registration of transfer of any Debt Security, the Company,
the Trustee, any Authenticating Agent, any paying agent, any transfer agent
and any Debt Security registrar may deem the Person in whose name such Debt
Security shall be registered upon the Debt Security Register to be, and may
treat him as, the absolute owner of such Debt Security (whether or not such
Debt Security shall be overdue) for the purpose of receiving payment of or on
account of the principal of, premium, if any, and interest on such Debt
Security and for all other purposes; and neither the Company nor the Trustee
nor any Authenticating Agent nor any paying agent nor any transfer agent nor
any Debt Security registrar shall be affected by any notice to the contrary.
All such payments so made to any holder for the time being or upon his order
shall be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for moneys payable upon any such Debt
Security.
SECTION 7.4. DEBT SECURITIES OWNED BY COMPANY DEEMED NOT
OUTSTANDING. In determining whether the holders of the requisite aggregate
principal amount of Debt Securities have concurred in any direction, consent
or waiver under this Indenture, Debt Securities which are owned by the
Company or any other obligor on the Debt Securities or by any Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company or any other obligor on the Debt Securities shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination; PROVIDED, HOWEVER, that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction,
consent or waiver, only Debt Securities which a Responsible Officer of the
Trustee actually knows are so owned shall be so disregarded. Debt Securities
so owned which have been pledged in good faith may be regarded as outstanding
for the purposes of this Section 7.4 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right to vote such Debt Securities
and that the pledgee is not the Company or any such other obligor or Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In the
case of a dispute as to such right, any decision by the Trustee taken upon
the advice of counsel shall be full protection to the Trustee.
SECTION 7.5. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 7.1, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Debt Securities specified in this Indenture
in connection with such action, any holder (in cases where no record date has
been set pursuant to Section 7.1) or any holder as of an applicable record
date (in cases where a record date has been set pursuant to Section 7.1) of a
Debt Security (or any Debt Security issued in whole or in part in exchange or
substitution therefor) the serial number of which is shown by the evidence to
be included in the Debt Securities the holders of which have consented to
such action may, by filing written notice with the Trustee at the Principal
Office of the Trustee and upon proof of holding as provided in Section 7.2,
revoke such action so far as concerns such Debt Security (or so far as
concerns the principal amount represented by any exchanged or substituted
Debt Security). Except as aforesaid any such action taken by the holder of
any Debt Security shall be conclusive and binding upon such holder and upon
all future holders and
32
owners of such Debt Security, and of any Debt Security issued in exchange or
substitution therefor or on registration of transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon such Debt Security
or any Debt Security issued in exchange or substitution therefor.
ARTICLE VIII.
SECURITYHOLDERS' MEETINGS
SECTION 8.1. PURPOSES OF MEETINGS. A meeting of Securityholders may
be called at any time and from time to time pursuant to the provisions of
this Article VIII for any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to be
taken by Securityholders pursuant to any of the provisions of Article V;
(b) to remove the Trustee and nominate a successor trustee pursuant
to the provisions of Article VI;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.2; or
(d) to take any other action authorized to be taken by or on behalf
of the holders of any specified aggregate principal amount of such Debt
Securities under any other provision of this Indenture or under applicable
law.
SECTION 8.2. CALL OF MEETINGS BY TRUSTEE. The Trustee may at any
time call a meeting of Securityholders to take any action specified in
Section 8.1, to be held at such time and at such place as the Trustee shall
determine. Notice of every meeting of the Securityholders, setting forth the
time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be mailed to holders of Debt Securities
affected at their addresses as they shall appear on the Debt Securities
Register and, if the Company is not a holder of Debt Securities, to the
Company. Such notice shall be mailed not less than 20 nor more than 180 days
prior to the date fixed for the meeting.
SECTION 8.3. CALL OF MEETINGS BY COMPANY OR SECURITYHOLDERS. In case
at any time the Company pursuant to a Board Resolution, or the holders of at
least 10% in aggregate principal amount of the Debt Securities, as the case
may be, then outstanding, shall have requested the Trustee to call a meeting
of Securityholders, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such
request, then the Company or such Securityholders may determine the time and
the place for such meeting and may call such meeting to take any action
authorized in Section 8.1, by mailing notice thereof as provided in Section
8.2.
SECTION 8.4. QUALIFICATIONS FOR VOTING. To be entitled to vote at
any meeting of Securityholders a Person shall (a) be a holder of one or more
Debt Securities with respect to which the meeting is being held or (b) a
Person appointed by an instrument in writing as proxy by a holder of one or
more such Debt Securities. The only Persons who shall be entitled to be
present or to speak at any meeting of Securityholders shall be the Persons
entitled to vote at such meeting and their counsel and any representatives of
the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 8.5. REGULATIONS. Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Securityholders, in regard to proof of the
holding of Debt Securities and of the appointment of proxies, and in regard
to the
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appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 8.3, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority vote of the
meeting.
Subject to the provisions of Section 7.4, at any meeting each holder
of Debt Securities with respect to which such meeting is being held or proxy
therefor shall be entitled to one vote for each $1,000 principal amount of
Debt Securities held or represented by him; PROVIDED, HOWEVER, that no vote
shall be cast or counted at any meeting in respect of any Debt Security
challenged as not outstanding and ruled by the chairman of the meeting to be
not outstanding. The chairman of the meeting shall have no right to vote
other than by virtue of Debt Securities held by him or instruments in writing
as aforesaid duly designating him as the Person to vote on behalf of other
Securityholders. Any meeting of Securityholders duly called pursuant to the
provisions of Section 8.2 or 8.3 may be adjourned from time to time by a
majority of those present, whether or not constituting a quorum, and the
meeting may be held as so adjourned without further notice.
SECTION 8.6. VOTING. The vote upon any resolution submitted to any
meeting of holders of Debt Securities with respect to which such meeting is
being held shall be by written ballots on which shall be subscribed the
signatures of such holders or of their representatives by proxy and the
serial number or numbers of the Debt Securities held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting their verified
written reports in triplicate of all votes cast at the meeting. A record in
duplicate of the proceedings of each meeting of Securityholders shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 8.2. The record shall show the
serial numbers of the Debt Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
SECTION 8.7. QUORUM; ACTIONS. The Persons entitled to vote a
majority in principal amount of the Debt Securities shall constitute a quorum
for a meeting of Securityholders; PROVIDED, HOWEVER, that if any action is to
be taken at such meeting with respect to a consent, waiver, request, demand,
notice, authorization, direction or other action which may be given by the
holders of not less than a specified percentage in principal amount of the
Debt Securities, the Persons holding or representing such specified
percentage in principal amount of the Debt Securities will constitute a
quorum. In the absence of a quorum within 30 minutes of the time appointed
for any such meeting, the meeting shall, if convened at the request of
Securityholders, be dissolved. In any other case the meeting may be adjourned
for a period of not less than 10 days as determined by the permanent chairman
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the
permanent chairman of the meeting prior to the adjournment of such adjourned
meeting. Notice of the reconvening of any adjourned
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meeting shall be given as provided in Section 8.2, except that such notice
need be given only once not less than 5 days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Debt Securities which shall constitute a quorum.
Except as limited by the proviso in the first paragraph of Section
9.2, any resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the holders of a majority in principal amount of the Debt
Securities; PROVIDED, HOWEVER, that, except as limited by the proviso in the
first paragraph of Section 9.2, any resolution with respect to any consent,
waiver, request, demand, notice, authorization, direction or other action
which this Indenture expressly provides may be given by the holders of not
less than a specified percentage in principal amount of the Debt Securities
may be adopted at a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid only by the affirmative vote of the
holders of a not less than such specified percentage in principal amount of
the Debt Securities.
Any resolution passed or decision taken at any meeting of holders of
Debt Securities duly held in accordance with this Section shall be binding on
all the Securityholders, whether or not present or represented at the meeting.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
SECTION 9.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS. The Company, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto, without the consent of the Securityholders,
for one or more of the following purposes:
(a) to evidence the succession of another Person to the Company, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Company, pursuant to Article XI
hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the holders of Debt
Securities as the Board of Directors shall consider to be for the protection
of the holders of such Debt Securities, and to make the occurrence, or the
occurrence and continuance, of a default in any of such additional covenants,
restrictions or conditions a default or an Event of Default permitting the
enforcement of all or any of the several remedies provided in this Indenture
as herein set forth; PROVIDED, HOWEVER, that in respect of any such
additional covenant restriction or condition such supplemental indenture may
provide for a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default;
(c) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture; provided that any such action shall not
adversely affect the interests of the holders of the Debt Securities;
(d) to add to, delete from, or revise the terms of Debt Securities,
including, without limitation, any terms relating to the issuance, exchange,
registration or transfer of Debt Securities, including to provide for
transfer procedures and restrictions substantially similar to those
applicable to the
35
Capital Securities as required by Section 2.5 (for purposes of assuring that
no registration of Debt Securities is required under the Securities Act of
1933, as amended); PROVIDED, HOWEVER, that any such action shall not
adversely affect the interests of the holders of the Debt Securities then
outstanding (it being understood, for purposes of this proviso, that transfer
restrictions on Debt Securities substantially similar to those that were
applicable to Capital Securities shall not be deemed to adversely affect the
holders of the Debt Securities);
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities and to
add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11;
(f) to make any change (other than as elsewhere provided in this
paragraph) that does not adversely affect the rights of any Securityholder in
any material respect; or
(g) to provide for the issuance of and establish the form and terms
and conditions of the Debt Securities, to establish the form of any
certifications required to be furnished pursuant to the terms of this
Indenture or the Debt Securities, or to add to the rights of the holders of
Debt Securities.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder, but the
Trustee shall not be obligated to, but may in its discretion, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 9.1 may be executed by the Company and the Trustee without the
consent of the holders of any of the Debt Securities at the time outstanding,
notwithstanding any of the provisions of Section 9.2.
SECTION 9.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS. With the consent (evidenced as provided in Section 7.1) of
the holders of not less than a majority in aggregate principal amount of the
Debt Securities at the time outstanding affected by such supplemental
indenture (voting as a class), the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time 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 any supplemental indenture or of modifying in any
manner the rights of the holders of the Debt Securities; PROVIDED, HOWEVER,
that no such supplemental indenture shall without the consent of the holders
of each Debt Security then outstanding and affected thereby (i) change the
fixed maturity of any Debt Security, or reduce the principal amount thereof
or any premium thereon, or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption thereof or make
the principal thereof or any interest or premium thereon payable in any coin
or currency other than that provided in the Debt Securities, or impair or
affect the right of any Securityholder to institute suit for payment thereof
or impair the right of repayment, if any, at the option of the holder, or
(ii) reduce the aforesaid percentage of Debt Securities the holders of which
are required to consent to any such supplemental indenture; PROVIDED FURTHER,
HOWEVER, that if the Debt Securities are held by a trust or a trustee of such
trust, such supplemental indenture shall not be effective until the holders
of a majority in Liquidation Amount of Trust Securities shall have consented
to such supplemental indenture; PROVIDED FURTHER, HOWEVER, that if the
consent of the Securityholder of each outstanding Debt Security is required,
such supplemental indenture shall not be effective until each holder of the
Trust Securities shall have consented to such supplemental indenture.
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Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise,
in which case the Trustee may in its discretion, but shall not be obligated
to, enter into such supplemental indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the
Trustee shall transmit by mail, first class postage prepaid, a notice,
prepared by the Company, setting forth in general terms the substance of such
supplemental indenture, to the Securityholders as their names and addresses
appear upon the Debt Security Register. Any failure of the Trustee to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders
under this Section 9.2 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
SECTION 9.3. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution
of any supplemental indenture pursuant to the provisions of this Article IX,
this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Debt Securities shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such
modifications and amendments and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.4. NOTATION ON DEBT SECURITIES. Debt Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article IX may bear a notation as to any
matter provided for in such supplemental indenture. If the Company or the
Trustee shall so determine, new Debt Securities so modified as to conform, in
the opinion of the Board of Directors of the Company, to any modification of
this Indenture contained in any such supplemental indenture may be prepared
and executed by the Company, authenticated by the Trustee or the
Authenticating Agent and delivered in exchange for the Debt Securities then
outstanding.
SECTION 9.5. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE
FURNISHED TO TRUSTEE. The Trustee, subject to the provisions of Sections 6.1
and 6.2, shall, in addition to the documents required by Section 14.6,
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies
with the requirements of this Article IX. The Trustee shall receive an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article IX is authorized or permitted by, and
conforms to, the terms of this Article IX and that it is proper for the
Trustee under the provisions of this Article IX to join in the execution
thereof.
ARTICLE X.
REDEMPTION OF SECURITIES
SECTION 10.1. OPTIONAL REDEMPTION. The Company shall have the right,
subject to the receipt by the Company of prior approval from the Federal
Reserve, if then required under applicable capital guidelines or policies of
the Federal Reserve, to redeem the Debt Securities, in whole or in part, but
in all cases in a principal amount with integral multiples of $1,000, on any
March 7 or September 7 on or after September 7, 2010 (the "REDEMPTION DATE"),
at the Redemption Price.
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SECTION 10.2. SPECIAL EVENT REDEMPTION. If a Special Event shall
occur and be continuing, the Company shall have the right, subject to the
receipt by the Company of prior approval from the Federal Reserve if then
required under applicable capital guidelines or policies of the Federal
Reserve, to redeem the Debt Securities in whole, but not in part, at any
time, within 90 days following the occurrence of such Special Event (the
"SPECIAL REDEMPTION DATE") at the Special Redemption Price. The Company shall
appoint a Quotation Agent, which initially shall be State Street Bank and
Trust Company, for the purpose of performing the services contemplated in, or
by reference in, the definition of Special Redemption Price. Any error in the
calculation of the Special Redemption Price by the Quotation Agent or the
Trustee may be corrected at any time by notice delivered to the Company and
the holders of the Debt Securities. Subject to the corrective rights set
forth above, all certificates, communications, opinions, determinations,
calculations, quotations and decisions given, expressed, made or obtained for
the purposes of the provisions relating to the payment and calculation of the
Special Redemption Price on the Debt Securities by the Trustee or the
Quotation Agent, as the case may be, shall (in the absence of willful
default, bad faith or manifest error) be final, conclusive and binding on the
holders of the Debt Securities and the Company, and no liability shall attach
(except as provided above) to the Trustee or the Quotation Agent in
connection with the exercise or non-exercise by any of them of their
respective powers, duties and discretion.
SECTION 10.3. NOTICE OF REDEMPTION; SELECTION OF DEBT SECURITIES. In
case the Company shall desire to exercise the right to redeem all, or, as the
case may be, any part of the Debt Securities, it shall cause to be mailed a
notice of such redemption at least 30 and not more than 60 days prior to the
Redemption Date or the Special Redemption Date to the holders of Debt
Securities so to be redeemed as a whole or in part at their last addresses as
the same appear on the Debt Security Register. Such mailing shall be by first
class mail. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the holder
receives such notice. In any case, failure to give such notice by mail or any
defect in the notice to the holder of any Debt Security designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debt Security.
Each such notice of redemption shall specify the CUSIP number, if
any, of the Debt Securities to be redeemed, the Redemption Date or the
Special Redemption Date, as applicable, the Redemption Price, the Special
Redemption Price or the method by which such Special Redemption Price is to
be calculated, as applicable, at which Debt Securities are to be redeemed,
the place or places of payment, that payment will be made upon presentation
and surrender of such Debt Securities, that interest accrued to the date
fixed for redemption will be paid as specified in said notice, and that on
and after said date interest thereon or on the portions thereof to be
redeemed will cease to accrue. If less than all the Debt Securities are to be
redeemed the notice of redemption shall specify the numbers of the Debt
Securities to be redeemed. In case the Debt Securities are to be redeemed in
part only, the notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after the date
fixed for redemption, upon surrender of such Debt Security, a new Debt
Security or Debt Securities in principal amount equal to the unredeemed
portion thereof will be issued.
Prior to 10:00 a.m. New York City time on the Redemption Date or
Special Redemption Date, as applicable, the Company will deposit with the
Trustee or with one or more paying agents an amount of money sufficient to
redeem on the Redemption Date or the Special Redemption Date, as applicable,
all the Debt Securities so called for redemption at the appropriate
Redemption Price or Special Redemption Price, together with accrued interest
to the Redemption Date or Special Redemption Date, as applicable.
If all, or less than all, the Debt Securities are to be redeemed,
the Company will give the Trustee notice not less than 45 nor more than 60
days, respectively, prior to the Redemption Date or Special Redemption Date,
as applicable, as to the aggregate principal amount of Debt Securities to be
redeemed
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and the Trustee shall select, in such manner as in its sole discretion it
shall deem appropriate and fair, the Debt Securities or portions thereof (in
integral multiples of $1,000) to be redeemed.
SECTION 10.4. PAYMENT OF DEBT SECURITIES CALLED FOR REDEMPTION. If
notice of redemption has been given as provided in Section 10.3, the Debt
Securities or portions of Debt Securities with respect to which such notice
has been given shall become due and payable on the Redemption Date or Special
Redemption Date, as applicable, and at the place or places stated in such
notice at the applicable Redemption Price or Special Redemption Price,
together with interest accrued to the Redemption Date or Special Redemption
Date, as applicable, and on and after said date (unless the Company shall
default in the payment of such Debt Securities at the Redemption Price or
Special Redemption Price, as applicable, together with interest accrued to
said date) interest on the Debt Securities or portions of Debt Securities so
called for redemption shall cease to accrue. On presentation and surrender of
such Debt Securities at a place of payment specified in said notice, such
Debt Securities or the specified portions thereof shall be paid and redeemed
by the Company at the applicable Redemption Price or Special Redemption
Price, together with interest accrued thereon to the Redemption Date or
Special Redemption Date, as applicable.
Upon presentation of any Debt Security redeemed in part only, the
Company shall execute and the Trustee shall authenticate and make available
for delivery to the holder thereof, at the expense of the Company, a new Debt
Security or Debt Securities of authorized denominations, in principal amount
equal to the unredeemed portion of the Debt Security so presented.
ARTICLE XI.
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 11.1. COMPANY MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
Nothing contained in this Indenture or in the Debt Securities shall prevent
any consolidation or merger of the Company with or into any other Person
(whether or not affiliated with the Company) or successive consolidations or
mergers in which the Company or its successor or successors shall be a party
or parties, or shall prevent any sale, conveyance, transfer or other
disposition of the property of the Company or its successor or successors as
an entirety, or substantially as an entirety, to any other Person (whether or
not affiliated with the Company, or its successor or successors) authorized
to acquire and operate the same; PROVIDED, HOWEVER, that the Company hereby
covenants and agrees that, upon any such consolidation, merger (where the
Company is not the surviving corporation), sale, conveyance, transfer or
other disposition, the due and punctual payment of the principal of (and
premium, if any) and interest on all of the Debt Securities in accordance
with their terms, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of this
Indenture to be kept or performed by the Company, shall be expressly assumed
by supplemental indenture satisfactory in form to the Trustee executed and
delivered to the Trustee by the entity formed by such consolidation, or into
which the Company shall have been merged, or by the entity which shall have
acquired such property.
SECTION 11.2. SUCCESSOR ENTITY TO BE SUBSTITUTED. In case of any
such consolidation, merger, sale, conveyance, transfer or other disposition
and upon the assumption by the successor entity, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual payment of the principal of and premium, if
any, and interest on all of the Debt Securities and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed or observed by the Company, such successor entity
shall succeed to and be substituted for the Company, with the same effect as
if it had been named herein as the Company, and thereupon the predecessor
entity shall be relieved of any further liability or obligation hereunder or
upon the Debt Securities. Such successor entity thereupon may cause to be
signed, and may issue in its own name, any or all of the Debt Securities
issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee or the Authenticating Agent; and, upon
the order of such
39
successor entity instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee or the
Authenticating Agent shall authenticate and deliver any Debt Securities which
previously shall have been signed and delivered by the officers of the
Company, to the Trustee or the Authenticating Agent for authentication, and
any Debt Securities which such successor entity thereafter shall cause to be
signed and delivered to the Trustee or the Authenticating Agent for that
purpose. All the Debt Securities so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Debt Securities
theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Debt Securities had been issued at the date
of the execution hereof.
SECTION 11.3. OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE. The
Trustee, subject to the provisions of Sections 6.1 and 6.2, shall receive, in
addition to the Opinion of Counsel required by Section 9.5, an Opinion of
Counsel as conclusive evidence that any consolidation, merger, sale,
conveyance, transfer or other disposition, and any assumption, permitted or
required by the terms of this Article XI complies with the provisions of this
Article XI.
ARTICLE XII.
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 12.1. DISCHARGE OF INDENTURE. When
(a) the Company shall deliver to the Trustee for cancellation all
Debt Securities theretofore authenticated (other than any Debt
Securities which shall have been destroyed, lost or stolen and
which shall have been replaced or paid as provided in Section
2.6) and not theretofore canceled, or
(b) all the Debt Securities not theretofore canceled or delivered
to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable
within 1 year or are to be called for redemption within 1 year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption, and the Company shall deposit with
the Trustee, in trust, funds, which shall be immediately due
and payable, sufficient to pay at maturity or upon redemption
all of the Debt Securities (other than any Debt Securities
which shall have been destroyed, lost or stolen and which
shall have been replaced or paid as provided in Section 2.6)
not theretofore canceled or delivered to the Trustee for
cancellation, including principal and premium, if any, and
interest due or to become due to such date of maturity or
redemption date, as the case may be, but excluding, however,
the amount of any moneys for the payment of principal of, and
premium, if any, or interest on the Debt Securities (1)
theretofore repaid to the Company in accordance with the
provisions of Section 12.4, or (2) paid to any state or to the
District of Columbia pursuant to its unclaimed property or
similar laws,
and if in the case of either clause (a) or clause (b) the Company shall also
pay or cause to be paid all other sums payable hereunder by the Company, then
this Indenture shall cease to be of further effect except for the provisions
of Sections 2.5, 2.6, 3.1, 3.2, 3.4, 6.6, 6.8 and 12.4 hereof shall survive
until such Debt Securities shall mature and be paid. Thereafter, Sections 6.6
and 12.4 shall survive, and the Trustee, on demand of the Company accompanied
by 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, and at the cost and
expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture. The Company agrees to
reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred by the Trustee in connection with this Indenture or the
Debt Securities.
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SECTION 12.2. DEPOSITED MONEYS TO BE HELD IN TRUST BY TRUSTEE.
Subject to the provisions of Section 12.4, all moneys deposited with the
Trustee pursuant to Section 12.1 shall be held in trust in a non-interest
bearing account and applied by it to the payment, either directly or through
any paying agent (including the Company if acting as its own paying agent),
to the holders of the particular Debt Securities for the payment of which
such moneys have been deposited with the Trustee, of all sums due and to
become due thereon for principal, and premium, if any, and interest.
SECTION 12.3. PAYING AGENT TO REPAY MONEYS HELD. Upon the
satisfaction and discharge of this Indenture all moneys then held by any
paying agent of the Debt Securities (other than the Trustee) shall, upon
demand of the Company, be repaid to it or paid to the Trustee, and thereupon
such paying agent shall be released from all further liability with respect
to such moneys.
SECTION 12.4. RETURN OF UNCLAIMED MONEYS. Any moneys deposited with
or paid to the Trustee or any paying agent for payment of the principal of,
and premium, if any, or interest on Debt Securities and not applied but
remaining unclaimed by the holders of Debt Securities for 2 years after the
date upon which the principal of, and premium, if any, or interest on such
Debt Securities, as the case may be, shall have become due and payable,
shall, subject to applicable escheatment laws, be repaid to the Company by
the Trustee or such paying agent on written demand; and the holder of any of
the Debt Securities shall thereafter look only to the Company for any payment
which such holder may be entitled to collect, and all liability of the
Trustee or such paying agent with respect to such moneys shall thereupon
cease.
ARTICLE XIII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 13.1. INDENTURE AND DEBT SECURITIES SOLELY CORPORATE
OBLIGATIONS. No recourse for the payment of the principal of or premium, if
any, or interest on any Debt Security, or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any supplemental
indenture, or in any such Debt Security, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, employee, officer or director, as such, past, present or future,
of the Company or of any successor Person of the Company, either directly or
through the Company or any successor Person of the Company, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, it being expressly understood that all
such liability is hereby expressly waived and released as a condition of, and
as a consideration for, the execution of this Indenture and the issue of the
Debt Securities.
ARTICLE XIV.
MISCELLANEOUS PROVISIONS
SECTION 14.1. SUCCESSORS. All the covenants, stipulations, promises
and agreements in this Indenture contained by the Company shall bind its
successors and assigns whether so expressed or not.
SECTION 14.2. OFFICIAL ACTS BY SUCCESSOR ENTITY. Any act or
proceeding by any provision of this Indenture authorized or required to be
done or performed by any board, committee or officer of the Company shall and
may be done and performed with like force and effect by the like board,
committee, officer or other authorized Person of any entity that shall at the
time be the lawful successor of the Company.
41
SECTION 14.3. SURRENDER OF COMPANY POWERS. The Company by instrument
in writing executed by authority of at least 2/3 (two-thirds) of its Board of
Directors and delivered to the Trustee may surrender any of the powers
reserved to the Company and thereupon such power so surrendered shall
terminate both as to the Company, and as to any permitted successor.
SECTION 14.4. ADDRESSES FOR NOTICES, ETC. Any notice, consent,
direction, request, authorization, waiver or demand which by any provision of
this Indenture is required or permitted to be given, made, furnished or
served by the Trustee or by the Securityholders on or to the Company may be
given or served in writing by being deposited postage prepaid by registered
or certified mail in a post office letter box addressed (until another
address is filed by the Company, with the Trustee for the purpose) to the
Company, 2310 Camino Vida Roble, Suite B, Carlsbad, California 92009-1504,
Attention: Arnold C. Hahn. Any notice, consent, direction, request,
authorization, waiver or demand by any Securityholder or the Company to or
upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made in writing at the office of the Trustee,
addressed to the Trustee, 225 Asylum Street, Goodwin Square, Hartford,
Connecticut, 06103 Attention: Vice President, Corporate Trust Department,
with a copy to State Street Bank and Trust Company, P.O. Box 778, Boston,
Massachusetts 02102-0778, Attention: Paul D. Allen, Corporate Trust
Department. Any notice, consent, direction, request, authorization, waiver or
demand on or to any Securityholder shall be deemed to have been sufficiently
given or made, for all purposes, if given or made in writing at the address
set forth in the Debt Security Register.
SECTION 14.5. GOVERNING LAW. This Indenture and each Debt Security
shall be deemed to be a contract made under the law of the State of New York,
and for all purposes shall be governed by and construed in accordance with
the law of said State, without regard to conflict of laws principles thereof.
SECTION 14.6. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. Upon
any application or demand by the Company to the Trustee to take any action
under any of the provisions of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that in the opinion of the
signers all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (1) a statement that
the person making such certificate or opinion has read such covenant or
condition; (2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based; (3) a statement that, in the
opinion of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and (4) a statement as to
whether or not in the opinion of such person, such condition or covenant has
been complied with.
SECTION 14.7. NON-BUSINESS DAYS. In any case where the date of
payment of interest on or principal of the Debt Securities will be a day that
is not a Business Day, the payment of such interest on or principal of the
Debt Securities need not be made on such date but may be made on the next
succeeding Business Day, except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if
made on the original date of payment, and no interest shall accrue for the
period from and after such date.
42
SECTION 14.8. TABLE OF CONTENTS, HEADINGS, ETC. The table of
contents and the titles and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 14.9. EXECUTION IN COUNTERPARTS. This Indenture may be
executed in any number of counterparts, each of which shall be an original,
but such counterparts shall together constitute but one and the same
instrument.
SECTION 14.10. SEPARABILITY. In case any one or more of the
provisions contained in this Indenture or in the Debt Securities shall for
any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provisions of this Indenture or of such Debt Securities, but this Indenture
and such Debt Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 14.11. ASSIGNMENT. The Company will have the right at all
times to assign any of its rights or obligations under this Indenture to a
direct or indirect wholly owned Subsidiary of the Company, provided that, in
the event of any such assignment, the Company will remain liable for all such
obligations. Subject to the foregoing, this Indenture is binding upon and
inures to the benefit of the parties hereto and their respective successors
and assigns. This Indenture may not otherwise be assigned by the parties
hereto.
SECTION 14.12. ACKNOWLEDGMENT OF RIGHTS. The Company agrees that,
with respect to any Debt Securities held by the Trust or the Institutional
Trustee of the Trust, if the Institutional Trustee of the Trust fails to
enforce its rights under this Indenture as the holder of Debt Securities held
as the assets of such Trust after the holders of a majority in Liquidation
Amount of the Capital Securities of such Trust have so directed such
Institutional Trustee, a holder of record of such Capital Securities may, to
the fullest extent permitted by law, institute legal proceedings directly
against the Company to enforce such Institutional Trustee's rights under this
Indenture without first instituting any legal proceedings against such
trustee or any other Person. Notwithstanding the foregoing, if an Event of
Default has occurred and is continuing and such event is attributable to the
failure of the Company to pay interest (or premium, if any) or principal on
the Debt Securities on the date such interest (or premium, if any) or
principal is otherwise payable (or in the case of redemption, on the
redemption date), the Company agrees that a holder of record of Capital
Securities of the Trust may directly institute a proceeding against the
Company for enforcement of payment to such holder directly of the principal
of (or premium, if any) or interest on the Debt Securities having an
aggregate principal amount equal to the aggregate Liquidation Amount of the
Capital Securities of such holder on or after the respective due date
specified in the Debt Securities.
ARTICLE XV.
SUBORDINATION OF DEBT SECURITIES
SECTION 15.1. AGREEMENT TO SUBORDINATE. The Company covenants and
agrees, and each holder of Debt Securities by such Securityholder's
acceptance thereof likewise covenants and agrees, that all Debt Securities
shall be issued subject to the provisions of this Article XV; and each holder
of a Debt Security, whether upon original issue or upon transfer or
assignment thereof, accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of, and premium, if any,
and interest on all Debt Securities shall, to the extent and in the manner
hereinafter set forth, be subordinated and junior in right of
43
payment to the prior payment in full of all Senior Indebtedness of the
Company, whether outstanding at the date of this Indenture or thereafter
incurred.
No provision of this Article XV shall prevent the occurrence of any
default or Event of Default hereunder.
SECTION 15.2. DEFAULT ON SENIOR INDEBTEDNESS. In the event and
during the continuation of any default by the Company in the payment of
principal, premium, interest or any other payment due on any Senior
Indebtedness of the Company following any grace period, or in the event that
the maturity of any Senior Indebtedness of the Company has been accelerated
because of a default, then, in either case, no payment shall be made by the
Company with respect to the principal (including redemption and sinking fund
payments) of, or premium, if any, or interest on the Debt Securities.
In the event that, notwithstanding the foregoing, any payment shall
be received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 15.2, such payment shall, subject to Section 15.7,
be held in trust for the benefit of, and shall be paid over or delivered to,
the holders of Senior Indebtedness or their respective representatives, or to
the trustee or trustees under any indenture pursuant to which any of such
Senior Indebtedness may have been issued, as their respective interests may
appear, but only to the extent that the holders of the Senior Indebtedness
(or their representative or representatives or a trustee) notify the Trustee
in writing within 90 days of such payment of the amounts then due and owing
on the Senior Indebtedness and only the amounts specified in such notice to
the Trustee shall be paid to the holders of Senior Indebtedness.
SECTION 15.3. LIQUIDATION, DISSOLUTION, BANKRUPTCY. Upon any payment
by the Company or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution or winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership
or other proceedings, all amounts due upon all Senior Indebtedness of the
Company shall first be paid in full, or payment thereof provided for in money
in accordance with its terms, before any payment is made by the Company, on
account of the principal (and premium, if any) or interest on the Debt
Securities. Upon any such dissolution or winding-up or liquidation or
reorganization, any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities,
which the Securityholders or the Trustee would be entitled to receive from
the Company, except for the provisions of this Article XV, shall be paid by
the Company, or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the
Securityholders or by the Trustee under this Indenture if received by them or
it, directly to the holders of Senior Indebtedness (PRO RATA to such holders
on the basis of the respective amounts of Senior Indebtedness held by such
holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing such Senior Indebtedness may have been
issued, as their respective interests may appear, to the extent necessary to
pay such Senior Indebtedness in full, in money or money's worth, after giving
effect to any concurrent payment or distribution to or for the holders of
such Senior Indebtedness, before any payment or distribution is made to the
Securityholders or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received
by the Trustee before all Senior Indebtedness is paid in full, or provision
is made for such payment in money in accordance with its terms, such payment
or distribution shall be held in trust for the benefit of and shall be paid
over or delivered to the holders of such Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may
44
appear, as calculated by the Company, for application to the payment of all
Senior Indebtedness, remaining unpaid to the extent necessary to pay such
Senior Indebtedness in full in money in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the benefit
of the holders of such Senior Indebtedness.
For purposes of this Article XV, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article XV with respect to the Debt Securities to the payment of all Senior
Indebtedness, that may at the time be outstanding, provided that (i) such
Senior Indebtedness is assumed by the new corporation, if any, resulting from
any such reorganization or readjustment, and (ii) the rights of the holders
of such Senior Indebtedness are not, without the consent of such holders,
altered by such reorganization or readjustment. The consolidation of the
Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance or
transfer of its property as an entirety, or substantially as an entirety, to
another corporation upon the terms and conditions provided for in Article X
of this Indenture shall not be deemed a dissolution, winding-up, liquidation
or reorganization for the purposes of this Section if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions stated in Article X of this Indenture. Nothing in
Section 15.2 or in this Section shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.6 of this Indenture.
SECTION 15.4. SUBROGATION. Subject to the payment in full of all
Senior Indebtedness, the Securityholders shall be subrogated to the rights of
the holders of such Senior Indebtedness to receive payments or distributions
of cash, property or securities of the Company, applicable to such Senior
Indebtedness until the principal of (and premium, if any) and interest on the
Debt Securities shall be paid in full. For the purposes of such subrogation,
no payments or distributions to the holders of such Senior Indebtedness of
any cash, property or securities to which the Securityholders or the Trustee
would be entitled except for the provisions of this Article XV, and no
payment over pursuant to the provisions of this Article XV to or for the
benefit of the holders of such Senior Indebtedness by Securityholders or the
Trustee, shall, as between the Company, its creditors other than holders of
Senior Indebtedness of the Company, and the holders of the Debt Securities be
deemed to be a payment or distribution by the Company to or on account of
such Senior Indebtedness. It is understood that the provisions of this
Article XV are and are intended solely for the purposes of defining the
relative rights of the holders of the Securities, on the one hand, and the
holders of such Senior Indebtedness, on the other hand.
Nothing contained in this Article XV or elsewhere in this Indenture
or in the Debt Securities is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
holders of the Debt Securities, the obligation of the Company, which is
absolute and unconditional, to pay to the holders of the Debt Securities the
principal of (and premium, if any) and interest on the Debt Securities as and
when the same shall become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the holders of the Debt
Securities and creditors of the Company, other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the
holder of any Debt Security from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture, subject to the rights,
if any, under this Article XV of the holders of such Senior Indebtedness in
respect of cash, property or securities of the Company, received upon the
exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred
to in this Article XV, the Trustee, subject to the provisions of Article VI
of this Indenture, and the Securityholders shall be entitled to conclusively
rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding-up, liquidation or reorganization proceedings
are pending, or a certificate of the
45
receiver, trustee in bankruptcy, liquidation trustee, agent or other Person
making such payment or distribution, delivered to the Trustee or to the
Securityholders, for the purposes of ascertaining the Persons entitled to
participate in such distribution, the holders of Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article XV.
SECTION 15.5. TRUSTEE TO EFFECTUATE SUBORDINATION. Each
Securityholder by such Securityholder's acceptance thereof authorizes and
directs the Trustee on such Securityholder's behalf to take such action as
may be necessary or appropriate to effectuate the subordination provided in
this Article XV and appoints the Trustee such Securityholder's
attorney-in-fact for any and all such purposes.
SECTION 15.6. NOTICE BY THE COMPANY. The Company shall give prompt
written notice to a Responsible Officer of the Trustee at the Principal
Office of the Trustee of any fact known to the Company that would prohibit
the making of any payment of monies to or by the Trustee in respect of the
Debt Securities pursuant to the provisions of this Article XV.
Notwithstanding the provisions of this Article XV or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment of
monies to or by the Trustee in respect of the Debt Securities pursuant to the
provisions of this Article XV, unless and until a Responsible Officer of the
Trustee at the Principal Office of the Trustee shall have received written
notice thereof from the Company or a holder or holders of Senior Indebtedness
or from any trustee therefor; and before the receipt of any such written
notice, the Trustee, subject to the provisions of Article VI of this
Indenture, shall be entitled in all respects to assume that no such facts
exist; PROVIDED, HOWEVER, that if the Trustee shall not have received the
notice provided for in this Section at least 2 Business Days prior to the
date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of (or
premium, if any) or interest on any Debt Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such money and to apply the same to the purposes for
which they were received, and shall not be affected by any notice to the
contrary that may be received by it within 2 Business Days prior to such date.
The Trustee, subject to the provisions of Article VI of this
Indenture, shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee or representative on behalf of such holder), to
establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee or representative on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
such Senior Indebtedness to participate in any payment or distribution
pursuant to this Article XV, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
such Senior Indebtedness held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article XV, and, if
such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to
receive such payment.
SECTION 15.7. RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article XV in respect of any Senior Indebtedness at any
time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any
of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XV, and no implied
covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into
46
this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of such Senior Indebtedness and, subject to
the provisions of Article VI of this Indenture, the Trustee shall not be
liable to any holder of such Senior Indebtedness if it shall pay over or
deliver to Securityholders, the Company or any other Person money or assets
to which any holder of such Senior Indebtedness shall be entitled by virtue
of this Article XV or otherwise.
Nothing in this Article XV shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.6.
SECTION 15.8. SUBORDINATION MAY NOT BE IMPAIRED. No right of any
present or future holder of any Senior Indebtedness to enforce subordination
as herein provided shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Company, or by any act or
failure to act, in good faith, by any such holder, or by any noncompliance by
the Company, with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or
otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time
to time, without the consent of or notice to the Trustee or the
Securityholders, without incurring responsibility to the Securityholders and
without impairing or releasing the subordination provided in this Article XV
or the obligations hereunder of the holders of the Debt Securities to the
holders of such Senior Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, such Senior Indebtedness, or otherwise amend or
supplement in any manner such Senior Indebtedness or any instrument
evidencing the same or any agreement under which such Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing such Senior Indebtedness; (iii)
release any Person liable in any manner for the collection of such Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Company, and any other Person.
[SIGNATURE PAGE FOLLOWS THIS PAGE]
47
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed by their respective officers thereunto duly authorized, as
of the day and year first above written.
FIRST COMMUNITY BANCORP
By
---------------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT, NATIONAL ASSOCIATION, as Trustee
By
---------------------------------------------
Name:
Title:
48
FORM OF JUNIOR SUBORDINATED DEBENTURE
[FORM OF FACE OF SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR ANY
OTHER APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
ONLY (A) TO THE COMPANY, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A IN ACCORDANCE WITH RULE 144A, (C) TO A NON-U.S. PERSON IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF
REGULATION S UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE
501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN
ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE
COMPANY. THE HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE
FOREGOING RESTRICTIONS.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATE AND OTHER INFORMATION AS MAY BE
REQUIRED BY THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS.
10.60% Junior Subordinated Deferrable Interest Debenture
of
First Community Bancorp
First Community Bancorp, a California corporation (the "Company"
which term includes any successor Person under the Indenture hereinafter
referred to), for value received promises to pay to State Street Bank and
Trust Company of Connecticut, National Association, not in its individual
capacity but solely as Institutional Trustee for First Community/CA Statutory
Trust I (the "Holder") or registered assigns, the principal sum of Eight
Million Two Hundred Forty Eight Thousand Dollars ($8,248,000) on September 7,
2030, and to pay interest on said principal sum from September 7, 2000, 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,
semi-annually (subject to deferral as set forth herein) in arrears on March 7
and
A-1-1
September 7 of each year commencing March 7, 2001, at an annual rate equal to
10.60% 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 an annual rate equal to 10.60% compounded
semi-annually. The amount of interest payable on any Interest Payment Date
shall be computed on the basis of a 360-day year of twelve 30-day months. In
the event that any date on which interest is payable on this Debt Security is
not a Business Day, then payment of interest payable on such date will be
made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date. 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 Debt Security (or one or more Predecessor Securities, as defined in said
Indenture) is registered at the close of business on the Record Date for such
interest installment, which shall be the close of business on the 15th day
next preceding such Interest Payment Date. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to
the registered holders on such Record Date and may be paid to the Person in
whose name this Debt Security (or one or more Predecessor Debt Securities) is
registered at the close of business on a special record date to be fixed by
the Trustee for the payment of such defaulted interest, notice whereof shall
be given to the registered holders of the Debt Securities not less than 10
days prior to such special record date, all as more fully provided in the
Indenture. The principal of and interest on this Debt Security shall be
payable at the office or agency of the Trustee (or other paying agent
appointed by the Company) 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 made by check mailed to the registered holder at such address
as shall appear in the Debt Security Register if a request for a wire
transfer by such holder has not been received by the Company or by wire
transfer to an account appropriately designated by the holder hereof.
Notwithstanding the foregoing, so long as the holder of this Debt Security is
the Institutional Trustee, the payment of the principal of and interest on
this Debt Security will be made in immediately available funds at such place
and to such account as may be designated by the Trustee.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, from time to time, and without causing an Event
of Default, to defer payments of interest on the Debt Securities by extending
the interest payment period on the Debt Securities at any time and from time
to time during the term of the Debt Securities, for up to 10 consecutive
semi-annual periods (each such extended interest payment period, an
"Extension Period"), during which Extension Period no interest shall be due
and payable. No Extension Period may end on a date other than an Interest
Payment Date. At the end of any such Extension Period the Company shall pay
all interest then accrued and unpaid on the Debt Securities (together with
Additional Interest thereon); PROVIDED, HOWEVER, that no Extension Period may
extend beyond the Maturity Date; PROVIDED FURTHER, HOWEVER, that during any
such Extension Period, the Company shall not and shall not permit any
Affiliate to (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of the
Company's or such Affiliate's capital stock (other than payments of dividends
or distributions to the Company) or make any guarantee payments with respect
to the foregoing or (ii) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Company or any Affiliate that rank PARI PASSU in all respects with or junior
in interest to the Debt Securities (other than, with respect to clauses (i)
and (ii) above, (a) repurchases, redemptions or other acquisitions of shares
of capital stock of the Company in connection with any employment contract,
benefit plan or other similar arrangement with or for the benefit of one or
more employees, officers, directors or consultants, in connection with a
dividend reinvestment or stockholder stock purchase plan or in connection
with the issuance of capital stock of the Company (or securities convertible
into or
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exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a
result of any exchange or conversion of any class or series of the Company's
capital stock (or any capital stock of a subsidiary of the Company) for any
class or series of the Company's capital stock or of any class or series of
the Company's indebtedness for any class or series of the Company's capital
stock, (c) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged, (d) any
declaration of a dividend in connection with any stockholder's rights plan,
or the issuance of rights, stock or other property under any stockholder's
rights plan, or the redemption or repurchase of rights pursuant thereto, (e)
any dividend in the form of stock, warrants, options or other rights where
the dividend stock or the stock issuable upon exercise of such warrants,
options or other rights is the same stock as that on which the dividend is
being paid or ranks PARI PASSU with or junior to such stock and any cash
payments in lieu of fractional shares issued in connection therewith, or (f)
payments under the Capital Securities Guarantee). Prior to the termination of
any Extension Period, the Company may further extend such period, provided
that such period together with all such previous and further consecutive
extensions thereof shall not exceed 10 consecutive semi-annual periods, or
extend beyond the Maturity Date. Upon the termination of any Extension Period
and upon the payment of all accrued and unpaid interest and Additional
Interest, the Company may commence a new Extension Period, subject to the
foregoing requirements. No interest or Additional Interest shall be due and
payable during an Extension Period, except at the end thereof, but each
installment of interest that would otherwise have been due and payable during
such Extension Period shall bear Additional Interest. The Company must give
the Trustee notice of its election to begin such Extension Period at least
five Business Days prior to the earlier of (i) the date interest on the Debt
Securities would have been payable except for the election to begin such
Extension Period or (ii) the date such interest is payable, but in any event
not less than five Business Days prior to such record date.
The indebtedness evidenced by this Debt 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 Debt Security is
issued subject to the provisions of the Indenture with respect thereto. Each
holder of this Debt Security, by accepting the same, (a) agrees to and shall
be bound by such provisions, (b) authorizes and directs the 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
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 Debt Security shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed
by or on behalf of the Trustee.
Capitalized terms used and not defined in this Debt Security shall
have the meanings assigned in the Indenture dated as of the date of this Debt
Security between the Trustee and the Company.
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IN WITNESS WHEREOF, the Company has duly executed this certificate.
First Community Bancorp
By
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Name:
Title:
Dated:
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities referred to in the within-mentioned
Indenture.
State Street Bank and Trust Company of
Connecticut, National Association, as the
Trustee
By:
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Authorized Officer
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