ISSUING AND PAYING AGENCY AGREEMENT between STERLING NATIONAL BANK, as Issuer, and September 2, 2016
Exhibit 4.2
ISSUING AND PAYING
AGENCY AGREEMENT
between
STERLING NATIONAL BANK,
as Issuer,
and
U.S. BANK NATIONAL ASSOCIATION,
as Issuing and Paying Agent and Note Registrar
September 2, 2016
THIS ISSUING AND PAYING AGENCY AGREEMENT, made and dated as of September 2, 2016 (this “Agreement”), between Sterling National Bank, a national banking association, as issuer (the “Issuer”), and U.S. Bank National Association, as the issuing and paying agent and note registrar (hereinafter sometimes referred to, in each such capacity, the “Agent”).
WHEREAS, the Issuer previously issued $110,000,000 aggregate principal amount of its 5.25% fixed-to-floating rate subordinated notes due 2026 on March 29, 2016 (the “Existing Notes”) and Issuer and Agent entered into the Issuing and Paying Agency Agreement, dated as of March 29, 2016 with respect to the Existing Notes.
Any Note bearing the manual or facsimile signature of a person who is duly authorized to execute such Note on the date such signature is affixed shall bind the Issuer after the completion thereof by the Agent notwithstanding that such person shall have ceased to hold his or her office on the date such Note is authenticated and delivered by the Agent.
Unless the Issuer notifies the Agent to the contrary, all Notes will be represented by one note certificate, hereinafter called the “Global Note.” The Global Note shall be registered in the name of a nominee of The Depository Trust Company (“DTC”), as Depositary. Beneficial interests in the Global Note will be shown on, and transfers thereof will be effected only through, records maintained by DTC and its participants.
Section 5. Duties of Issuing Agent: Completion, Authentication and Delivery.
(a) The Global Note shall be issued and delivered in accordance with the Blanket Letter of Representations from the Issuer to DTC, dated as of March 18, 2016. All instructions regarding the completion and delivery of the Global Note shall be given by an Authorized Representative by facsimile or other means acceptable to the Agent. All Authentication Orders with respect to the completed Global Note delivered for authentication to the Agent shall be in writing and shall be executed by an Authorized Representative. Upon receipt of instructions as described above, the Agent shall:
(1) manually authenticate the Global Note by any one of the officers or employees of the Agent duly authorized and designated by it for such purpose; and
(2) hold the Global Note as custodian for DTC.
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(b) The Agent shall incur no liability in acting hereunder upon any instructions or Authentication Order contemplated hereby which the Agent believed in good faith to have been given by an Authorized Representative.
(c) Each instruction or Authentication Order given to the Agent in accordance with this Section 5 shall constitute a representation and warranty to the Agent by the Issuer that the issuance and delivery of the Note or Notes to which the instruction or Authentication Order relates has been duly and validly authorized by the Issuer, that such Note or Notes when completed, authenticated and delivered pursuant hereto, will constitute the legal, valid and binding obligation of the Issuer, and that the Agent’s appointment to act for the Issuer hereunder has been duly authorized by all necessary corporate action of the Issuer.
(a) keep at its Paying Agent Office in St. Xxxx, Minnesota (the “Paying Agent Office”), a register (the “Note Register”) in such form as the Agent may determine, in which, subject to reasonable regulations as it may prescribe, it shall provide for the registration of Notes and of transfers of Notes;
(b) maintain records showing for each outstanding Note the principal amount and other terms thereof; all subsequent transfers and changes of ownership thereof; and the name, address and tax identification number of the registered holder of such Note (each, a “Holder”);
(c) record any transfer of Notes the Issuer has approved, it being understood that such approval shall be based solely on matters relating to compliance with federal and state securities laws;
(d) prepare all such lists of Holders as may be required by the Issuer or any person needing such information and so authorized in writing by the Issuer; and
(e) during regular office hours and upon reasonable prior written notice, make the Note Register available to the Issuer or the Issuer’s duly appointed employee or agent; provided that the Agent shall have no responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in the Global Note or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests, and it shall be fully protected in acting or refraining from acting on any such information provided by DTC.
The Issuer, the Agent and any agent of the Issuer or the Agent may treat the person in whose name a Note is registered (which in the case of a Global Note, shall be DTC or its nominee) as the absolute owner and Holder of such Note for all purposes whatsoever, and none of the Issuer, the Agent or any agent of any of them shall be affected by notice to the contrary. Any reference herein and in any Note to the term “Holder” of a Note or “registered holder” shall be to the person in whose name a Note is registered in the register maintained for such purposes
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pursuant to Section 6 hereof. Neither any members of, or participants in, DTC (“Agent Members”) nor any other persons on whose behalf Agent Members may act shall have any rights under this Agreement with respect to any Global Note registered in the name of DTC or any nominee thereof, or under any such Global Note. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Agent or any agent of the Issuer or the Agent from giving effect to any written certification, proxy or other authorization furnished by DTC or such nominee, as the case may be, or impair, as between DTC, its Agent Members and any other person on whose behalf an Agent Member may act, the operation of customary practices of such persons governing the exercise of the rights of a Holder of any Global Note. Neither the Agent nor the Issuer shall have any responsibility for any actions taken or not taken by DTC.
Upon surrender for registration of transfer of any Note at the Paying Agent Office, the Issuer shall execute, and the Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of authorized denominations (which in no case may be less than $250,000 and integral multiples of $1,000 in excess thereof) and of a like tenor and aggregate principal amount; provided that, unless and until it is exchanged in whole or in part for individual Notes represented thereby, the Global Note may not be transferred except as a whole by DTC to a nominee of DTC, or by a nominee of DTC to DTC or another nominee of DTC, or by DTC or any such nominee to a successor depositary or a nominee of such successor depositary.
If (i) DTC notifies the Issuer in writing that it is unwilling or unable to act as Depositary or DTC ceases to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, and a successor depositary is not appointed by the Issuer within 90 days, (ii) the Issuer, at its option, notifies the Agent, in writing that it elects to cause the issuance of Notes in definitive form or (iii) any event shall have happened and be continuing that, after notice or lapse of time or both, would constitute an Event of Default with respect to the Notes, then, upon surrender by DTC or a successor depositary of the Global Notes, the Agent shall authenticate and deliver Notes, upon receipt of instructions from the Issuer, of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of the Global Note outstanding in exchange for such Global Note, to each person that DTC or a successor depositary identifies as the beneficial owner of the related Notes.
Upon the exchange of the Global Note for Notes in definitive form upon the occurrence of any of the events described above, the Global Note shall be cancelled by the Agent. Notes issued in exchange for the Global Note shall be registered in such names and in such authorized denominations, and delivered to such addresses, as DTC, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Agent in writing. The Agent shall deliver such Notes to the persons in whose names such Notes are registered or to DTC, in fully registered form without coupons in denominations of $250,000 or any amount in excess thereof that is an integral multiple of $1,000. Such Notes may not subsequently be exchanged by a Holder for Notes in denominations of less than $250,000.
In case any Note shall at any time become mutilated, destroyed, lost or stolen and such Note or evidence satisfactory to the Issuer of the loss, theft or destruction thereof (together with indemnity satisfactory to the Agent and the Issuer and such other documents or proof as may be required by the Agent and the Issuer) shall be delivered to the Agent and the Issuer, the Agent
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shall authenticate and deliver, upon receipt of instructions from the Issuer, a new Note of like tenor in exchange for the Note so mutilated, or in lieu of the Note so destroyed or lost or stolen.
Section 7. Duties of Paying Agent: Payment of Notes; Interest.
(a) Payment of principal (and premium, if any) and interest on the Notes shall be made by the Agent in the manner and on the dates specified in the Notes from funds deposited by the Issuer with the Agent for such payments as provided in Section 10. The Agent shall have no obligation to use its own funds for any such payment of principal, premium, if any, or interest on the Notes. Payments due at the maturity or redemption of a Note shall be made only upon presentation and surrender of such Note. Any money that the Issuer pays to the Agent for the purpose of making payments on the Notes and that remains unclaimed two years after the payments were due will, at the Issuer’s written request, be returned to it. After that time, any Holders of such Notes can only look to the Issuer for payment on such Notes.
(b) The Issuer may appoint a calculation agent (the “Calculation Agent”), which Calculation Agent will calculate the interest payable for each Interest Payment Date that the Notes shall accrue interest at a floating rate in accordance with the terms of the Notes. The Calculation Agent shall calculate the interest payable in accordance with the terms of the Notes and absent manifest error, such interest calculation determination shall be binding and conclusive on the Holders of the Notes and the Issuer. Promptly following each Regular Record Date (as defined in the Note), the Calculation Agent will advise the Issuer of the amount of interest (to the extent then known) due on the next succeeding Interest Payment Date (as defined in the Note); provided, however, the Agent shall have no responsibility to determine or calculate any premium due on the Notes or a make-whole amount due and owing on the Notes, if any. On the date hereof and unless and until the Issuer appoints a new Calculation Agent, the Agent shall serve as Calculation Agent, subject to the terms and conditions contained herein. If at any time the Agent is not acting as the Calculation Agent with respect to the Notes, the Agent will give any appointed Calculation Agent, which may include the Issuer, written notice of each Interest Payment Date with respect to such Note at least ten Business Days prior to such Interest Payment Date.
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redeemed ratably among Holders. Any Note which is to be redeemed in part only pursuant to clause (b) of the preceding sentence shall be surrendered to the Paying Agent Office, and the Issuer shall execute, and upon receipt of instructions from an Authorized Representative of the Issuer, the Agent shall authenticate and deliver to the Holder of such Note, without service charge, a new Note of like tenor and terms, of any authorized denomination as requested by such Holder, in an aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of such Note so surrendered.
Section 10. Deposit of Funds. The Issuer shall deposit with the Agent by 9:30 a.m., New York time (i) on each Interest Payment Date (as such term is defined in such Note) of a Note an amount in immediately available funds sufficient to pay the interest due on such date and (ii) on the Maturity Date (as such term is defined in such Note) or earlier redemption date an amount in immediately available funds sufficient to pay the principal of such Note, the premium due thereon, if any, and the interest accrued thereon to, but excluding, such Maturity Date or redemption date, as the case may be. The Agent shall clearly identify in its books and records funds relating to the Notes.
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Notes. Nothing in this Agreement shall create a fiduciary relationship between the Agent, any Holders of the Notes or any other party.
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parties hereto or to any other person or entity even though such Order may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
Section 14. Resignation or Removal of the Agent.
(a) Except as provided below, the Agent may, at any time, resign as Note Registrar, as Issuing Agent or as Paying Agent, by giving written notice to the Issuer of its intention to resign from any or all such offices, specifying the date on which its desired resignation shall become effective; provided that such notice shall be given not less than 45 days prior to the said effective date, unless the Issuer otherwise agrees in writing. Except as provided below, the Agent may be removed from any or all of the offices to which it is hereby appointed by the Issuer upon delivering to the Agent an instrument in writing signed by the Issuer specifying such removal and the date when such removal shall become effective (such effective date being at least 20 days after said filing).
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(b) If at any time the Agent shall resign or be removed from any or all of the offices to which it is hereby appointed, then a successor Note Registrar, Issuing Agent or Paying Agent, as the case may be, shall be appointed by the Issuer by an instrument in writing delivered to the successor Note Registrar, Issuing Agent or Paying Agent, as the case may be. Upon the appointment as aforesaid of a successor Note Registrar, Issuing Agent or Paying Agent, as the case may be, and acceptance by the latter of such appointment, the former Note Registrar, Issuing Agent or Paying Agent, as the case may be, shall cease to hold such office.
(c) Any successor Note Registrar, Issuing Agent or Paying Agent appointed hereunder shall execute and deliver to its predecessor and the Issuer an instrument accepting such appointment hereunder, and thereupon such successor Note Registrar, Issuing Agent or Paying Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, immunities, duties and obligations of such predecessor with like effect as if originally named as the Note Registrar, Issuing Agent or Paying Agent hereunder, and such predecessor shall thereupon become obligated to transfer and deliver, and such successor shall be entitled to receive, copies of any relevant records maintained by such predecessor Note Registrar, Issuing Agent or Paying Agent.
(d) Any corporation into which the Agent may be merged or converted or any corporation with which the Agent may be consolidated or any corporation resulting from any merger, conversion or consolidation to which the Agent shall be a party shall, to the extent permitted by applicable law, be the successor Note Registrar, Issuing Agent or Paying Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto. Notice of any such merger, conversion or consolidation shall forthwith be given to the Issuer.
(e) The provisions of Sections 11 and 13 hereof shall survive any resignation or removal hereunder and the termination of this Agreement with respect to matters occurring prior to any such resignation or removal and the termination of this Agreement.
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The Agent shall have the right to rely upon and comply with instructions and directions sent by e-mail, facsimile and other similar unsecured electronic methods by persons believed by the Agent to be authorized to give instructions and directions on behalf of the Issuer. The Agent shall not have any duty or obligation to verify or confirm that the person who sent such instructions or directions is, in fact, a person authorized to give instructions or directions on behalf of the Issuer; and the Agent shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by the Issuer as a result of such reliance upon or compliance with such instructions or directions. The Issuer agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Agent, including without limitation the risk of the Agent acting on unauthorized instructions, and the risk of interception and misuse by third-parties.
Section 20. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 23. Jurisdiction. Each of the Agent and the Issuer submits to the jurisdiction of the courts of the State of New York over any suit, action or proceeding with respect to this Agreement or the transactions contemplated hereby. Each of the parties waives any objection that it may have to the venue of any suit, action or proceeding with respect to this Agreement or the transactions contemplated hereby in any court of the State of New York or that such suit, action or proceeding brought in a court of the State of New York was brought in an inconvenient court and agrees not to plead or claim the same.
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2001)) (as amended, modified or supplemented from time to time, the “USA Patriot Act”), the Agent, like all financial institutions, is required to obtain, verify, and record information that identified each person or legal entity that opens an account. The parties to this Agreement agree that they will provide the Agent with such information as the Agent may request in order for the Agent to satisfy the requirements of the USA Patriot Act.
[signature page follows]
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STERLING NATIONAL BANK, | |||
as Issuer | |||
By: | /s/ Xxxx Xxxxxxxx | ||
Name: | Xxxx Xxxxxxxx | ||
Title: | Chief Financial Officer | ||
U.S. BANK NATIONAL ASSOCIATION, | |||
as Issuing and Paying Agent and Note Registrar | |||
By: | /s/ Xxxxxxx X. Xxxxxxx | ||
Name: Xxxxxxx X. Xxxxxxx | |||
Title: Vice President |
[Signature Page to Issuing and Paying Agency Agreement]