Common use of Limitation on Additional Junior Indebtedness Clause in Contracts

Limitation on Additional Junior Indebtedness. The Company shall not, and it shall not cause or permit any Affiliate of the Company to incur, issue or be obligated on any Additional Junior Indebtedness, either directly or indirectly, by way of guarantee, suretyship or otherwise, other than: (a) Additional Junior Indebtedness that, by its terms, is expressly stated to be junior and subordinate in all respects to the Debentures; or (b) Additional Junior Indebtedness that, by its terms, is expressly stated to be pari passu and rank equally in all respects with the Debentures; provided, however, that neither the Company nor any of its Affiliates shall incur, issue or otherwise become obligated on any Additional Junior Indebtedness pursuant to this Section 5.10(b) unless the quotient of “X” divided by “Y” is less than 0.60, where “X” and “Y” are calculated as described in Section 5.10(c) and 5.10(d), respectively. (c) As used in Section 5.10(b), “X” means the sum of the following: (i) the aggregate principal amount of the Debentures Outstanding at the time of the proposed issuance of such Additional Junior Indebtedness pursuant to Section 5.10(b), plus (ii) the aggregate liquidation amount or principal amount, as the case may be, of any Additional Junior Indebtedness previously issued and outstanding at the time of the proposed issuance of such Additional Junior Indebtedness pursuant to Section 5.10(b), excluding any such Additional Junior Indebtedness that, by its terms, is expressly stated to be junior and subordinate in all respects to the Debentures, plus (iii) the aggregate liquidation amount or principal amount, as the case may be, of the Additional Junior Indebtedness proposed to be issued or otherwise incurred pursuant to Section 5.10(b), plus (iv) the principal amount of any Senior Indebtedness of the Company outstanding at the time of the proposed issuance of such Additional Junior Indebtedness pursuant to Section 5.10(b) and that has a maturity or is otherwise due and payable by the Company on a date twelve (12) months or more after the time of the proposed issuance of such Additional Junior Indebtedness pursuant to Section 5.10(b). (d) As used in Section 5.10(b), “Y” means the sum of the following: (i) the sum of (x) the “common stockholders’ equity” of the Company, plus (y) the “perpetual preferred stock” of the Company, plus (z) any “minority interest” in the common and preferred stockholders’ equity accounts of a subsidiary of the Company, each calculated on a consolidated basis and in accordance with Appendix A to Part 225 (Capital adequacy guidelines for bank-holding companies; risk-based measure) of Federal Reserve Regulation Y (12 CFR Part 225, as amended, as in effect at the date of execution of this Indenture), without regard to limitations therein with respect to the inclusion of perpetual preferred stock or minority interest (in each case, whether cumulative or noncumulative) in Tier 1 capital, determined as of the last day of the month immediately preceding the month during which the proposed issuance of the Additional Junior Indebtedness pursuant to Section 5.10(b) is scheduled to occur (provided, however, that in no event shall any portion of the Debentures, the Additional Junior Indebtedness or the Senior Indebtedness described in Section 5.10(c) also be included in “Y” under this Section 5.10(d)), plus (ii) any other preferred stock of the Company that does not otherwise qualify as “perpetual preferred stock” and is not included in clause (d)(i) above, plus (iii) the aggregate liquidation amount or principal amount, as the case may be, of any Additional Junior Indebtedness, which by its terms is expressly stated to be junior and subordinate in all respects to the Debentures and which was previously issued and outstanding at the time of the proposed issuance of such Additional Junior Indebtedness pursuant to Section 5.10(b). (e) Notwithstanding the foregoing, the limitations of this Section 5.10 shall not in any way preclude the Company from merging with or into, or from acquiring or being acquired by, another Person (including by way of merger, stock purchase or acquisition of assets) that is not an Affiliate of the Company in an arm’s length transaction entered into in good faith, even though the pro forma consolidated balance sheet of the surviving Person immediately following the consummation of such merger, or of the acquiror immediately following the completion of such acquisition transaction, may include Additional Junior Indebtedness in amounts in excess of amounts that would otherwise be permitted by this Section 5.10; provided, however, that thereafter the limitations on future incurrences of Additional Junior Indebtedness in this Section 5.10 shall continue to apply to the Company (in the event that it is the surviving corporation in such merger transaction or the acquiror in such acquisition transaction) and shall apply to the other Person (in the event that it is the surviving corporation in such merger transaction or the acquiror in such acquisition transaction) whether or not such other Person is expressly made a party hereto.

Limitation on Additional Junior Indebtedness. The Company shall not, and it shall not cause or permit any Affiliate of the Company to to, incur, issue or be obligated on any Additional Junior Indebtedness, either directly or indirectly, by way of guarantee, suretyship or otherwise, other than: (a) Additional Junior Indebtedness that, by its terms, is expressly stated to be junior and subordinate in all respects to the Debentures; or (b) Additional Junior Indebtedness that, by its terms, is expressly stated to be pari passu and rank equally in all respects with the Debentures; provided, however, that neither the Company nor any of its Affiliates shall incur, issue or otherwise become obligated on any Additional Junior Indebtedness pursuant to this Section 5.10(b) unless the quotient of “X” divided by “Y” is less than 0.60, where “X” and “Y” are calculated as described in Section 5.10(c) and 5.10(d), respectively. (c) As used in Section 5.10(b), “X” means the sum of the following: (i) the aggregate liquidation amount or principal amount amount, as the case may be, of the Debentures Outstanding at the time of the proposed issuance of such Additional Junior Indebtedness pursuant to Section 5.10(b), plus (ii) the aggregate liquidation amount or principal amount, as the case may be, of any Additional Junior Indebtedness previously issued and outstanding at the time of the proposed issuance of such Additional Junior Indebtedness pursuant to Section 5.10(b), excluding any such Additional Junior Indebtedness that, by its terms, is expressly stated to be junior and subordinate in all respects to the Debentures, plus (iii) the aggregate liquidation amount or principal amount, as the case may be, of the Additional Junior Indebtedness proposed to be issued or otherwise incurred pursuant to Section 5.10(b), plus (iv) the principal amount of any Senior Indebtedness of the Company outstanding at the time of the proposed issuance of such Additional Junior Indebtedness pursuant to Section 5.10(b) and that has a maturity or is otherwise due and payable by the Company on a date twelve (12) months or more after the time of the proposed issuance of such Additional Junior Indebtedness pursuant to Section 5.10(b). (d) As used in Section 5.10(b), “Y” means the sum of the following: (i) the sum of (xy) the “common stockholders’ equity” of the Company, plus (yz) the “perpetual preferred stock” of the Company, plus (z) any “minority interest” in the common and preferred stockholders’ equity accounts of a subsidiary of the Company, each calculated on a consolidated basis and in accordance with Appendix A to Part 225 (Capital adequacy guidelines for bank-holding companies; risk-based measure) of Federal Reserve Regulation Y (12 CFR Part 225, as amended, as in effect at the date of execution of this Indenture), without regard to limitations therein with respect to the inclusion of perpetual preferred stock or minority interest (in each case, whether cumulative or noncumulative) in Tier 1 capital, determined as of the last day of the month immediately preceding the month during which the proposed issuance of the Additional Junior Indebtedness pursuant to Section 5.10(b) is scheduled to occur (provided, however, that in no event shall any portion of the Debentures, the Additional Junior Indebtedness or the Senior Indebtedness described in Section 5.10(c) also be included in “Y” under this Section 5.10(d)), plus (ii) any other preferred stock of the Company that does not otherwise qualify as “perpetual preferred stock” and is not included in clause (d)(i) above, plus (iii) the aggregate liquidation amount or principal amount, as the case may be, of any Additional Junior Indebtedness, which by its terms is expressly stated to be junior and subordinate in all respects to the Debentures and which was previously issued and outstanding at the time of the proposed issuance of such Additional Junior Indebtedness pursuant to Section 5.10(b). (e) Notwithstanding the foregoing, the limitations of this Section 5.10 shall not in any way preclude the Company from merging with or into, or from acquiring or being acquired by, another Person (including by way of merger, stock purchase or acquisition of assets) that is not an Affiliate of the Company in an arm’s length transaction entered into in good faith, even though the pro forma consolidated balance sheet of the surviving Person immediately following the consummation of such merger, or of the acquiror immediately following the completion of such acquisition transaction, may include Additional Junior Indebtedness in amounts in excess of amounts that would otherwise be permitted by this Section 5.10; provided, however, that thereafter the limitations on future incurrences of Additional Junior Indebtedness in this Section 5.10 shall continue to apply to the Company (in the event that it is the surviving corporation in such merger transaction or the acquiror in such acquisition transaction) and shall apply to the other Person (in the event that it is the surviving corporation in such merger transaction or the acquiror in such acquisition transaction) whether or not such other Person is expressly made a party hereto.

Limitation on Additional Junior Indebtedness. The Company shall not, and it shall not cause or permit any Affiliate Subsidiary of the Company to to, incur, issue or be obligated on any Additional Junior Indebtedness, either directly or indirectly, by way of guarantee, suretyship or otherwise, other than: (a) Additional Junior Indebtedness that, by its terms, is expressly stated to be junior and subordinate in all respects to the Debentures; or (b) Additional Junior Indebtedness that, by its terms, is expressly stated to be pari passu and rank equally in all respects with the Debentures; provided, however, that neither the Company nor any of its Affiliates Subsidiaries shall incur, issue or otherwise become obligated on any Additional Junior Indebtedness pursuant to this Section 5.10(b) unless the quotient of “"X” " divided by “"Y” " is less than 0.60, where “"X” " and “"Y” " are calculated as described in Section 5.10(c) and 5.10(d), respectively. (c) As used in Section 5.10(b), “"X” " means the sum of the following: (i) the aggregate liquidation amount or principal amount amount, as the case may be, of the Debentures Outstanding at the time of the proposed issuance of such Additional Junior Indebtedness pursuant to Section 5.10(b), plus (ii) the aggregate liquidation amount or principal amount, as the case may be, of any Additional Junior Indebtedness previously issued and outstanding at the time of the proposed issuance of such Additional Junior Indebtedness pursuant to Section 5.10(b), excluding any such Additional Junior Indebtedness that, by its terms, is expressly stated to be junior and subordinate in all respects to the Debentures, plus (iii) the aggregate liquidation amount or principal amount, as the case may be, of the Additional Junior Indebtedness proposed to be issued or otherwise incurred pursuant to Section 5.10(b), plus (iv) the principal amount of any Senior Indebtedness of the Company outstanding at the time of the proposed issuance of such Additional Junior Indebtedness pursuant to Section 5.10(b) and that has a maturity or is otherwise due and payable by the Company on a date twelve (12) months or more after the time of the proposed issuance of such Additional Junior Indebtedness pursuant to Section 5.10(b). (d) As used in Section 5.10(b), “"Y” " means the sum of the following: (i) the sum of (x) the “common stockholders’ equity” of the Company, plus (y) the “perpetual preferred stock” "common stockholders' equity" of the Company, plus (z) any “minority interest” in the common and "perpetual preferred stockholders’ equity accounts of a subsidiary stock" of the Company, each calculated on a consolidated basis and in accordance with Appendix A to Part 225 (Capital adequacy guidelines for bank-holding companies; risk-based measure) of Federal Reserve Regulation Y (12 CFR Part 225, as amended, as in effect at the date of execution of this Indenture), without regard to limitations therein with respect to the inclusion of perpetual preferred stock or minority interest (in each case, whether cumulative or noncumulative) in Tier 1 capital, determined as of the last day of the month immediately preceding the month during which the proposed issuance of the Additional Junior Indebtedness pursuant to Section 5.10(b) is scheduled to occur occur, (provided, however, that in no event shall any portion of the Debentures, the Additional Junior Indebtedness or the Senior Indebtedness described in Section 5.10(c) also be included in “"Y” " under this Section 5.10(d)), plus (ii) any other preferred stock of the Company that does not otherwise qualify as “"perpetual preferred stock” " and is not included in clause (d)(i) above, plus (iii) the aggregate liquidation amount or principal amount, as the case may be, of any Additional Junior Indebtedness, which by its terms is expressly stated to be junior and subordinate in all respects to the Debentures and which was previously issued and outstanding at the time of the proposed issuance of such Additional Junior Indebtedness pursuant to Section 5.10(b). (e) Notwithstanding the foregoing, the limitations of this Section 5.10 shall not in any way preclude the Company from merging with or into, or from acquiring or being acquired by, another Person (including by way of merger, stock purchase or acquisition of assets) that is not an Affiliate of directly or indirectly controlling, controlled by or under common control with the Company in an arm’s 's length transaction entered into in good faith, even though the pro forma consolidated balance sheet of the surviving Person immediately following the consummation of such merger, or of the acquiror immediately following the completion of such acquisition transaction, may include Additional Junior Indebtedness in amounts in excess of amounts that would otherwise be permitted by this Section 5.10; provided, however, that thereafter the limitations on future incurrences of Additional Junior Indebtedness in this Section 5.10 shall continue to apply to the Company (in the event that it is the surviving corporation in such merger transaction or the acquiror in such acquisition transaction) and shall apply to the other Person (in the event that it is the surviving corporation in such merger transaction or the acquiror in such acquisition transaction) whether or not such other Person is expressly made a party hereto.