EXHIBIT 4.2
GREATER BAY BANCORP
9.75% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES DUE APRIL 1, 2027
OFFICERS' CERTIFICATE AND COMPANY ORDER
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Pursuant to the Indenture dated as of March 31, 1997 (the "Indenture"),
between Greater Bay Bancorp, a California corporation (the "Company") and
Wilmington Trust Company, as Debenture Trustee (the "Debenture Trustee") and
resolutions adopted by the Pricing Committee of the Company's Board of Directors
on March 24, 1997; this Officers' Certificate is being delivered to the
Debenture Trustee to establish the terms of one series of securities (the
"Securities") in accordance with Section 3.1 of the Indenture, to establish the
form of the Securities of such series in accordance with Section 2.1 of the
Indenture, to request the authentication and delivery of the Securities of such
series pursuant to Section 3.3 of the Indenture and to comply with the
provisions of Section 1.2 of the Indenture. This Officers' Certificate shall be
treated for all purposes under the Indenture as a supplemental indenture
thereto.
All conditions precedent provided for in the Indenture relating to the
establishment of (i) a series of Securities and (ii) the form of Securities of
such series have been complied with.
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to them in the Indenture.
I. Establishment of Series of Securities pursuant to Section 3.1 of the
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Indenture.
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There are hereby established pursuant to Section 3.1 of the Indenture a
series of Securities which shall have the following terms:
A. The Securities of such series shall bear the title "9.75% Junior
Subordinated Deferrable Interest Debentures Due April 1, 2027."
B. The aggregate principal amount of such series of Securities to be
issued pursuant to this Officers' Certificate and Company Order shall be limited
to $20,618,550 (except for Securities authenticated and delivered upon
registration of, transfer of, or in exchange for, or in lieu of, other
Securities of such series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7 of the
Indenture and except for any Securities which, pursuant to Section 3.3 of the
Indenture, are deemed never to have been authenticated and delivered
thereunder).
C. The date on which the principal of the Securities is due and
payable shall be April 1, 2027.
D. The Securities shall bear interest at the rate of 9.75% per annum
(based upon a 360-day year of twelve 30-day months), from and including the date
of original issuance or from and including the most recent Interest Payment Date
to which interest has been paid or duly provided for, as the case may be,
payable quarterly in arrears on the 15th day of March, June, September and
December in each year (each, an "Interest Payment Date"), commencing June 15,
1997, until the principal thereof is paid or made available for payment. The
Business Day next preceding an Interest Payment Date shall be the "Regular
Record Date" for the interest payable on such Interest Payment Date. Accrued
interest that is not paid on such applicable Interest Payment Date will bear
additional interest on the amount thereof (to the extent permitted by law) at a
rate per annum of 9.75% thereof compounded quarterly.
In addition, so long as no Event of Default with respect to the Securities
has occurred or is continuing, the Company has the right under the Indenture at
any time during the term of such Securities to defer the payment of interest at
any time or from time to time for a period not exceeding 20 consecutive
quarterly periods with respect to each Extension Period, provided that no
Extension Period may extend beyond the Stated Maturity. At the end of such
Extension Period, the Company must pay all interest then accrued and unpaid
(together with interest thereon at the annual rate of 9.75%, compounded
quarterly, to the extent permitted by applicable law).
E. Principal of (and premium, if any) and interest on the Securities
will be payable, and, except as provided in Section 3.5 of the Indenture with
respect to a Global Security (as defined below), the transfer of the Securities
will be registrable and Securities (except as provided in paragraph (Q) hereof)
will be exchangeable for Securities bearing identical terms and provisions at
the corporate trust office of Wilmington Trust Company, in the City of
Wilmington, Delaware.
F. The Securities will be redeemable in whole at any time and in
part from time to time, at the option of the Company at any time on or after
April 1, 2002, subject to the Company having received prior approval of the
Board of Governors of the Federal Reserve System (the "Federal Reserve"), at a
redemption price equal to the accrued and unpaid interest on the Securities so
redeemed to the date fixed for redemption, plus 100% of the principal amount
thereof.
In addition, upon the occurrence of a Tax Event, an Investment Company
Event or a Capital Treatment Event (as each such term is defined below) the
Company may, at its option and subject to receipt of prior approval of the
Federal Reserve if then required under applicable capital guidelines or policies
of the Federal Reserve, prepay the Securities in whole (but not in part) at any
time within 90 days of the occurrence of such Tax Event, Investment Company
Event or a Capital Treatment Event, at a redemption price equal to the accrued
and unpaid interest on
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the Securities so redeemed to the date fixed for redemption, plus 100% of the
principal amount thereof.
"Tax Event" means the receipt by 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 or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after the date of issuance of the
Preferred Securities of the Trust, 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 Securities, (ii) interest payable by the Company on the 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.
"Investment Company Event" means, in respect of the Trust, the receipt by
the Trust of an Opinion of Counsel, rendered by a law firm experienced in such
matters, to the extent that, as a result of a change in law or regulation or a
change in interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority, the Trust is or will
be considered an "investment company" that is required to be registered under
the 1940 Act, which change becomes effective on or after the date of original
issuance of the Preferred Securities of the Trust.
"Capital Treatment Event" means the reasonable determination by the Company
that, as a result of any amendment to, or change (including any prospective
change) in, the laws (or any regulations thereunder) of the United States or any
political subdivision thereof or therein, or as a result of any official or
administrative pronouncement or action or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such prospective change, pronouncement or decision is announced on or after the
date of the issuance of the Preferred Securities of the Trust, there is more
than an insubstantial risk of impairment of the Company's ability to treat the
Preferred Securities (or any substantial portion thereof) as "Tier I 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.
G. The Company shall not be obligated to redeem or purchase any
Securities pursuant to any sinking fund or analogous provisions or at the option
of the Holder.
H. The Securities will be issued only in fully registered form and
the authorized minimum denomination of the Securities shall be $25.00 and any
integral multiple of $25.00 in excess thereof.
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I. The Securities shall be denominated, and payments of principal of
(and premium, if any) and interest on the Securities of such series will be
made, in United States dollars.
J. The Securities shall be subject to the Events of Default
specified in Section 5.1, paragraphs (1) through (7), of the Indenture.
K. The portion of the principal amount of the Securities which shall
be payable upon declaration of acceleration of maturity thereof shall not be
other than the principal amount thereof, provided, that, if such acceleration is
declared by the Holders of at least 25% in aggregate liquidation amount of the
Preferred Securities then outstanding, then, upon such declaration of
acceleration, the Securities which shall be payable shall be the principal
amount thereof plus accrued interest (including any Additional Interest).
L. The Securities will be issued in fully registered form, without
coupons. The Securities will not be issued in bearer form.
M. The amount of payments of principal of and any premium or
interest on the Securities will not be determined with reference to an index.
N. The Securities shall not be issued in the form of a temporary
Global Security (as defined below).
O. The Securities will initially be in certificated form registered
in the name of the name of Wilmington Trust Company, as Property Trustee for the
Trust (the "Certificated Securities"). The Securities may, in the sole
discretion of the Company, be deposited with, and on behalf of, The Depository
Trust Company, New York, New York, as Depositary, and will be represented by a
global security (a "Global Security") registered in the name of a nominee of the
Depositary. If, and so long as the Depositary or its nominee is the registered
holder of any Global Security, the Depositary or its nominee, as the case may
be, will be considered the sole Holder of the Securities of such series
represented by such Global Security for all purposes under the Indenture and the
Securities. The Certificated Securities or the Global Securities, as the case
may be, shall bear no legends.
P. The Trustee shall be Paying Agent.
Q. The Securities will not be convertible into any other securities
or property of the Company. The Securities of any series may not be exchanged
for Securities of any other series.
R. The Trust Agreement, the Amended and Restated Trust Agreement and
the Guarantee Agreement are in the forms attached hereto as Exhibits B, C and D
respectively.
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S. The Securities are subordinate and subject in right of payment to
the prior payment in full of all amounts then due and payable in respect of all
Senior and Subordinated Debt, as provided in the Indenture.
T. The Securities shall have additional terms, which terms shall not
be inconsistent with the provisions of the Indenture.
II. Establishment of Forms of Securities Pursuant to Section 2.1 of
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Indenture.
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It is hereby established pursuant to Section 2.1 of the Indenture that the
Securities shall be substantially in the form attached as Exhibit A hereto.
III. Order for the Authentication and Delivery of Securities Pursuant to
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Section 3.3 of the Indenture.
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It is hereby ordered pursuant to Section 3.3 of the Indenture that the
Trustee authenticate, in the manner provided by the Indenture, Securities in the
aggregate principal amount of $20,618,550 registered in the name of Wilmington
Trust Company, as Property Trustee, which Securities have been heretofore duly
executed by the proper officers of the Company and delivered to you as provided
in the Indenture, and to deliver said authenticated Securities to Wilmington
Trust Company or its custodian on or before 9:30 a.m., Pacific Standard Time, on
March 31, 1997.
IV. Other Matters.
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Attached as Exhibit E hereto are true and correct copies of resolutions
adopted by the Pricing Committee of the Board of Directors of the Company at a
meeting on March 24, 1997. Attached as Exhibit F hereto are true and correct
copies of resolutions adopted by the Board of Directors of the Company at a
meeting on February 22, 1997. Such resolutions have not been further amended,
modified or rescinded and remain in full force and effect; and such resolutions
(together with this Officers' Certificate) are the only resolutions or other
action adopted by the Company's Board of Directors or any committee thereof or
by any Authorized Officers relating to the offering and sale of the Securities.
The undersigned have read the pertinent sections of the Indenture including
the related definitions contained therein. The undersigned have examined the
resolutions adopted by the Board of Directors and the Pricing Committee of the
Board of Directors of the Company. In the opinion of the undersigned, the
undersigned have made such examination or investigation as is necessary to
enable the undersigned to express an informed opinion as to whether or not the
conditions precedent to the establishment of (i) a series of Securities, (ii)
the forms of such Securities and (iii) authentication of such series of
Securities, contained in the Indenture have
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been complied with. In the opinion of the undersigned, such conditions have been
complied with.
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IN WITNESS WHEREOF, the undersigned have executed this Certificate this
31st day of March 1997.
GREATER BAY BANCORP
By: /s/ David L. Kalkbrenner
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David L. Kalkbrenner
Chief Executive Officer
By /s/ Steven C. Smith
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Steven C. Smith
Executive Vice President, Chief
Operating Officer and Chief
Financial Officer
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