EXHIBIT 4.2
GREATER BAY BANCORP
_____% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES DUE ________
OFFICERS' CERTIFICATE AND COMPANY ORDER
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Pursuant to the Indenture dated as of March _____, 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 Company's Board of Directors on ________________;
this Officers' Certificate is being delivered to the Debenture Trustee to
establish the terms of a series of 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 herein and not otherwise defined herein shall have
the meanings assigned to them in the Indenture.
A. Establishment of a 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:
(1) The Securities of such series shall bear the title "_________%
Junior Subordinated Deferrable Interest Debentures Due _________________."
(2) The aggregate principal amount of such series of Securities to be
issued pursuant to this Officers' Certificate and Company Order shall be limited
to $_______ (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 Sections 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).
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(3) The date on which the principal of the Securities is due and
payable shall be __________________.
(4) The Securities shall bear interest at the rate of _________% per
annum (based upon a 360-day year of twelve 30-day months), from and including
___________ 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 ________________, _________________,______________ and
_______________ in each year, commencing _____________, until the principal
thereof is paid or made available for payment. Each such ______________,
_______________,_________________ or _________________ shall be an
"Interest Payment Date" for the Securities of such series, and 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
_________% 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 (each such period an "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 ___________%, compounded
quarterly, to the extent permitted by applicable law).
(5) 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 will be exchangeable for Securities bearing
identical terms and provisions at the corporate trust office of Wilmington Trust
Company, in the City of New York, New York.
(6) 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
___________, 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 Capital Treatment Event, an
Investment Company Event or a Tax Event (as 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, redeem the Securities in whole (but not in part) at any time within 90
days of the occurrence of such Capital Treatment Event,
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Investment Company Event or Tax Event, 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.
"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 issuance of the ________ % Cumulative Trust Preferred Securities
(Liquidation Amount $25 per Trust Preferred Security) (the "Preferred
Securities") of GBB Capital I, a statutory business trust formed under the laws
of the State of Delaware ("GBB Capital"), 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.
"Investment Company Event" "means the receipt by the Company and GBB
Capital of an opinion of counsel, rendered by a law firm experienced in such
matters, to the effect that, as a result of any 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, GBB Capital 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 becomes effective
on or after the date of original issuance of the Preferred Securities of GBB
Capital.
"Tax Event" means the receipt by the Company and GBB Capital 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
such prospective change, pronouncement or decision is announced on or after the
date of issuance of the Preferred Securities of GBB Capital, there is more than
an insubstantial risk that (i) GBB Capital 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 the Securities, (ii) interest
payable by the Company on the Securities is not, or within 90 days of the date
of such opinion of counsel, will not be, deductible by the Company, in whole or
in part, for United States Federal income tax purposes or (iii) GBB Capital is,
or will be 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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(7) The Company shall not be obligated to prepay, repay or purchase
any Securities pursuant to any sinking fund, amortization or analogous
provisions or at the option of the Holder.
(8) The Securities will be issued only in fully registered form and
the authorized minimum denomination of the Securities shall be $25 and any
integral multiple of $25 in excess thereof.
(9) The Securities shall be denominated, and payments of principal of
(and premium, if any) and interest on the Securities of such series will be
payable, in United States dollars.
(10) The Securities shall be subject to the Events of Default
specified in Section 5.1, paragraphs (1) through (7), of the Indenture.
(11) 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 of GBB Capital 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).
(12) The Securities will be issued in fully registered form, without
coupons. The Securities will not be issued in bearer form.
(13) The amount of payments of principal of and any premium or
interest on the Securities will not be determined with reference to an index.
(14) The Securities shall not be issued in the form of a temporary
Global Security (as defined below).
(15) The Securities will initially be in certificated form registered
in the name of the name of Wilmington Trust Company, as Property Trustee (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.
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(16) The Trustee shall be Paying Agent.
(17) 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.
(18) The Trust Agreement, the Amended and Restated Trust Agreement and
the Guarantee Agreement are in the forms attached hereto as Exhibits A, B and C
respectively.
(19) 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.
(20) The Securities of such series shall have such other terms and
provisions as are provided in the form set forth in Exhibit D hereto.
B. 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
Global Security representing the Securities shall be substantially in the form
attached as Exhibit D hereto.
C. 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 $_____________ 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.
on _____________.
D. Other Matters.
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Attached as Exhibit E hereto are true and correct copies of resolutions
adopted by the Board of Directors of the Company at a meeting on ______________;
such resolutions have not been further amended, modified or rescinded and remain
in full force and effect; and such resolutions (together with this Officer's
Certificate) are the only resolution 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.
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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 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 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
______th day of March, 1997.
GREATER BAY BANCORP
By____________________________
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