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EXHIBIT 4.8
BANCORP HAWAII, INC.
8.25% Junior Subordinated Debt Securities, Series A, due December 15, 2026
No. BHI JSD 1 $103,093,000
BANCORP HAWAII, INC., a corporation organized and existing under the laws
of Hawaii (hereinafter called the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for value received,
hereby promises to pay to Bancorp Hawaii Capital Trust I, or its registered
assigns, the principal sum of $103,093,000 (One Hundred Three Million Ninety
Three Thousand Dollars) on December 15, 2026. The Company further promises to
pay interest on said principal sum from December 30, 1996, or from the most
recent interest payment date (each such date, an "Interest Payment Date") on
which interest has been paid or duly provided for, semi-annually, subject to
deferral as set forth herein, in arrears on June 15 and December 15 of each
year, commencing June 15, 1997, at the rate of 8.25% per annum, until the
principal hereof shall have become due and payable, plus Additional Interest,
if any, until the principal hereof is paid or duly provided for or made
available for payment and on any overdue principal and (without duplication and
to the extent that payment of such interest is enforceable under applicable law)
on any overdue installment of interest at the rate of 8.25% per annum,
compounded semi-annually as liquidated damages. The amount of interest payable
for any period shall be computed on the basis of twelve 30-day months and a
360-day year. The amount of interest payable for any partial period shall be
computed on the basis of the number of days elapsed in a 360-day year of
twelve 30-day months. In the event that any date on which interest is payable
on this Security is not a Business Day, then a payment of the interest payable
on such date will be made on the next succeeding day which 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 the date the payment was
originally payable. A "Business Day" shall mean any day other than (i) a
Saturday or Sunday, (ii) a day on which banking institutions in The City of New
York are authorized or required by law or executive order to remain closed or
(iii) a day on which the Corporate Trust Office of the Trustee, or the
Corporate Trust Office of the Property Trustee under the Declaration of Trust
hereinafter referred to for Bancorp Hawaii Capital Trust I is closed for
business. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date, as provided in the Indenture, shall
be paid to the Person in whose name this Security (or one or more Predecessor
Securities, as defined in the Indenture) is registered at the close of business
on the Regular Record Date for such interest installment, which shall be the
first day of the month in which an Interest Payment Date occurs. Any such
interest installment not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
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Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right at any time during the term of this Security, from
time to time, to defer payment of interest on such Security for up to 10
consecutive semi-annual interest payment periods with respect to each deferral
period (each an "Extension Period"), during which Extension Periods the Company
shall have the right to make partial payments of interest on any Interest
Payment Date, and at the end of which the Company shall pay all interest then
accrued and unpaid (together with Additional Interest thereon to the extent
permitted by applicable law); provided, however, that no Extension Period may
extend beyond the Maturity of this Security. During any such Extension Period,
the Company will not, (i) declare or pay any dividends or distributions on or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
the Company's outstanding capital stock or (ii) make any payment of principal
of, interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company including other debt that ranks pari passu with or
junior in interest to this Security or (iii) make any guarantee payments with
respect to any guarantee by the Company of the debt securities of any
subsidiary of the Company (including other guarantees) if such guarantee ranks
pari passu with or junior in interest to this Security (other than (a)
dividends or distributions in Common Stock of the Company, (b) any declaration
of a dividend in connection with the implementation of a stockholders' rights
plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (c) payments
under the Guarantee Agreement (as defined in the Indenture), (d) purchases or
acquisitions of shares of the Company's Common Stock in connection with the
satisfaction by the Company of its obligations under any employee benefit plan
or other contractual obligation of the Company (other than a contractual
obligation ranking pari passu with or junior to these Securities), (e) as a
result of a reclassification of the Company's capital stock or the exchange or
conversion of one class or series of the Company's capital stock for another
class or series of the Company's capital stock, or (f) 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). Prior to the termination of any such Extension Period,
the Company may further extend such Extension Period, provided, however, that
such extension does not cause such Extension Period to exceed 10 consecutive
semi-annual interest payment periods or extend beyond the Maturity of this
Security. Upon the termination of any such Extension Period and upon the
payment of all accrued
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and unpaid interest and any Additional Interest then due, the Company may elect
to begin a new Extension Period, subject to the above requirements. No
interest shall be due and payable during an Extension Period except at the end
thereof. The Company shall give the Holder of this Security and the Trustee
notice of its election to begin any Extension Period at least five Business
Days prior to the Interest Payment Date, prior to the earlier of (i) the date
the Distributions on the Capital Securities would have been payable except for
the election to begin or extend such Extension Period or (ii) the date the
Administrative Trustees are required to give notice to any automated quotation
system or to holders of such Capital Securities of the record date or the date
such Distributions are payable, but in any event not less than five Business
Days prior to such record date. There is no limitation on the number of times
the Company may elect to begin an Extension Period.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for
that purpose in the United States, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
payment of any interest may be made (except Securities in Global form) (i) by
check mailed to the address of the Person entitled thereto as such address
shall appear in the Securities Register, or (ii) by wire transfer in
immediately available funds at such place and to such account as may be
designated by the Person entitled thereto as specified in the Securities
Register.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Debt, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
actions as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes. Each Holder hereof, by his acceptance hereof, waives all notice of
the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Debt, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
Reference is herby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: , 1997 BANCORP HAWAII, INC.,
[Seal] By:
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Attest:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE SECURITIES REFERRED TO IN THE WITHIN-MENTIONED
INDENTURE.
THE BANK OF NEW YORK, AS TRUSTEE
By:
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AUTHORIZED SIGNATORY
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Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under a Junior Subordinated Indenture, dated as of December 30, 1996,
as supplemented by an Officers' Certificate dated as of December 30, 1996
(herein called the "Indenture"), between the Company and The Bank of New York,
as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Trustee,
the Company and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof, limited in aggregate principal
amount to $103,093,000.
All terms used in this Security that are defined in the Indenture and
in the Amended and Restated Declaration of Trust of Bancorp Hawaii Capital
Trust I, dated as of December 30, 1996, as amended (the "Declaration of
Trust"), among Bancorp Hawaii, Inc., as Depositor, and the Trustees named
therein, shall have the meanings assigned to them in the Indenture or the
Declaration of Trust, as the case may be.
On or after December 15, 2006, the Company may at any time, at its
option, subject to the terms and conditions of Article XI of the Indenture and
subject to the Company having received prior approval of the Federal Reserve if
then required under applicable capital guidelines of the Federal Reserve,
redeem this Security in whole or in part at any time or from time to time prior
to maturity, at a redemption price (the "Optional Repayment Price") equal to
the following prices, expressed in percentages of the principal amount of the
Junior Subordinated Debt Securities together with accrued but unpaid interest
to but excluding the date fixed for redemption. If redeemed during the
12-month period beginning December 15:
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Redemption
Year Price
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2006 ........................ 104.1250%
2007 ........................ 103.7125
2008 ........................ 103.3000
2009 ........................ 102.8875
2010 ........................ 102.4750
2011 ........................ 102.0625
2012 ........................ 101.6500
2013 ........................ 101.2375
2014 ........................ 100.8250
2015 ........................ 100.4125
and at 100% on or after December 15, 2016.
Upon the occurrence and continuation of a Tax Event or Capital Treatment
Event, the Company has the right to terminate the Trust and distribute a Like
Amount of the Junior Subordinated Debt Securities to the holders of the Trust
Securities in liquidation of the Trust within 90 days following the occurrence
of such Tax Event or Capital Treatment Event, as the case may be, and if a Tax
Event or Capital Treatment Event, as the case may be, continues notwithstanding
the taking of such actions, to redeem the Junior Subordinated Debt Securities in
whole, but not in part, at the Event Prepayment Price together with accumulated
distribution to but excluding the date fixed for redemption. The exercise of
such right is subject to the Corporation's having received prior approval of the
Federal Reserve to do so if then required under applicable guidelines or
policies of the Federal Reserve.
"Tax Event" means the receipt by the Company 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 proposed 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 proposed
change, pronouncement or decision is announced on or after the Original issue
Date of the applicable series of Securities or of the applicable Capital
Securities issued by the Trust, there is more than an insubstantial risk that
(i) if the Trust holds such Securities, such Trust is, or will be within 90
days of the date of such Opinion of Counsel, subject to United States Federal
income tax with respect to income received or accrued on such Securities, (ii)
interest payable by the Company on such series of Securities is not, or within
90 days of the date of such Opinion of Counsel, subject to more than a de
minimis amount of other taxes, duties or other governmental charges.
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"Capital Treatment Event" means the reasonable determination by the
Company that, as a result of the occurrence of any amendment to, or change
(including any announced prospective change) in, the laws (or any rules or
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 pronouncement,
action or decision is announced on or after the date of issuance of the Capital
Securities, there is more than an insubstantial risk that the Corporation will
not be entitled to treat an amount equal to the Liquidation Amount of the
Capital 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.
In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of this Security may be declared due and
payable in the manner, with the effect and subject to the conditions provided
in the Indenture and in the Declaration of Trust.
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee at any time to enter into a supplemental indenture or
indentures for the purpose of modifying in any manner the rights and
obligations of the Company and of the Holders of the Securities, with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series to be affected by such supplemental
indenture. The Indenture also contains provisions permitting Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, if an
Event of Default with respect to the Securities of this series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of this series may declare the principal amount of all the
Securities of this series to be due and payable immediately, by a notice
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in writing to the Company (and to the Trustee if given by Holders), provided,
however, that, in the case of the Securities of this series issued to a Bancorp
Hawaii Trust, if upon an Event of Default, the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of this series
fails to declare the principal of all the Securities of this series to be
immediately due and payable, the holders of at least 25% in aggregate
Liquidation Amount of the corresponding series of Capital Securities then
outstanding shall have such right by a notice in writing to the Company and the
Trustee. The Holders of a majority in aggregate principal amount of the
Outstanding Securities of these Securities may annul such declaration and waive
the default if the default (other than the non-payment of the principal of these
Securities which has become due solely by such acceleration) has been cured and
a sum sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Trustee. Should the
Holders of these Securities fail to annul such declaration and waive such
default, the holders of a majority in aggregate Liquidation Amount of the
Capital Securities shall have such right. Upon any such declaration such
specified amount of and the accrued interest (including any Additional Interest)
on all the Securities of this series shall become immediately due and payable,
provided that the payment of principal and interest (including any Additional
Interest) on such Securities shall remain subordinated to the extent provided in
Article XIV of the Indenture.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any)
and interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Securities
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company maintained pursuant to Section 10.2 of the
Indenture duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and Securities Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing and thereupon one
or more new Securities of this series, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee shall treat
the Person in whose name this Security is registered as the owner hereof for
all purposes, whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
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The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of such series of a different authorized
denomination, as requested by the Holder surrendering the same.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security intend that such Security constitutes indebtedness
and agree to treat such Security as indebtedness for United States Federal,
state and local tax purposes.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
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