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EXHIBIT 4.1
VIB CORP
AND
WILMINGTON TRUST COMPANY
AS TRUSTEE
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JUNIOR SUBORDINATED INDENTURE
DATED AS OF FEBRUARY 5, 1999
UP TO $23,712,000
AGGREGATE PRINCIPAL AMOUNT OF
9.00% JUNIOR SUBORDINATED DEBENTURES
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CROSS REFERENCE TABLE
Sections 310 through 318 of the
Trust Indenture Act of 1939, as amended:
Trust Indenture Indenture
Act Section Section
Section 310(a)(1).............................................. 609
(a)(2)............................................... 609
(a)(3)............................................... Not Applicable
(a)(4)............................................... Not Applicable
(b).................................................. 608,610
Section 311(a)................................................. 613
(b).................................................. 613
Section 312(a)................................................. 701
702(a)
(b).................................................. 702(b)
(c).................................................. 702(c)
Section 313(a)................................................. 703(a)
(a)(4)............................................... 101, 1004
(b).................................................. 703(a)
(c).................................................. 703(a)
(d).................................................. 703(b)
Section 314(a)................................................. 704
(b).................................................. Not Applicable
(c)(1)............................................... 102
(c)(2)............................................... 102
(c)(3)............................................... Not Applicable
(d).................................................. Not Applicable
(e).................................................. 102
Section 315(a)................................................. 601
(b).................................................. 602
(c).................................................. 601
(d).................................................. 601
(e).................................................. 514
Section 316(a)................................................. 101
(a)(1)(A)............................................ 502
512
(a)(1)(B)............................................ 513
(a)(2)............................................... Not Applicable
(b).................................................. 508
(c).................................................. 104(c)
Section 317(a)(1).............................................. 503
(a)(2)............................................... 504
(b).................................................. 1003
Section 318(a)................................................. 107
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NOTE: THIS CROSS-REFERENCE TABLE DOES NOT CONSTITUTE PART OF THIS INDENTURE AND
SHALL NOT AFFECT THE INTERPRETATION OF ANY OF ITS TERMS.
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TABLE OF CONTENTS
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions
SECTION 102. Compliance Certificates and Opinions
SECTION 103. Form of Opinion Documents Delivered to Trustee
SECTION 104. Acts of Holders; Record Dates
SECTION 105. Notices, Etc., to Trustee and the Company
SECTION 106. Notice to Holders; Waiver
SECTION 107. Conflict with Trust Indenture Act
SECTION 108. Effect of Headings and Table of Contents
SECTION 109. Successors and Assigns
SECTION 110. Severability Clause
SECTION 111. Benefits of Indenture
SECTION 112. Governing Law
SECTION 113. Non-Business Days
ARTICLE TWO
Debenture Forms
SECTION 201. Forms Generally
SECTION 202. Form of Face of Debenture
SECTION 203. Form of Reverse of Debenture
SECTION 204. Additional Provisions Required in Global Security
SECTION 205. Form of Trustee's Certificate of Authentication
ARTICLE THREE
The Debentures
SECTION 301. Title and Terms; Paying Agent
SECTION 302. Denominations
SECTION 303. Execution, Authentication, Delivery and Dating
SECTION 304. Temporary Debentures
SECTION 305. Registration, Registration of Transfer and Exchange
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debentures
SECTION 307. Payment of Interest; Interest Rights Preserved
SECTION 308. Persons Deemed Owners
SECTION 309. Cancellation
SECTION 310. Computation of Interest
SECTION 311. Right of Set-Off
SECTION 312. Agreed Tax Treatment
SECTION 313. CUSIP Numbers
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture
SECTION 402. Application of Trust Money
SECTION 403. Legal and Covenant Defeasance of Debentures
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ARTICLE FIVE
Remedies
SECTION 501. Events of Default
SECTION 502. Acceleration of Maturity; Rescission and Annulment
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee
SECTION 504. Trustee May File Proofs of Claim
SECTION 505. Trustee May Enforce Claims Without Possession of Debentures
SECTION 506. Application of Money Collected
SECTION 507. Limitation on Suits
SECTION 508. Unconditional Right of Holders to Receive Principal and Interest
SECTION 509. Restoration of Rights and Remedies
SECTION 510. Rights and Remedies Cumulative
SECTION 511. Delay or Omission Not Waiver
SECTION 512. Control by Holders
SECTION 513. Waiver of Past Defaults
SECTION 514. Undertaking for Costs
SECTION 515. Waiver of Usury, Stay or Extension Laws
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities
SECTION 602. Notice of Defaults
SECTION 603. Certain Rights of Trustee
SECTION 604. Not Responsible for Recitals or Issuance of Debentures
SECTION 605. May Hold Securities
SECTION 606. Money Held in Trust
SECTION 607. Compensation; Reimbursement; and Indemnity
SECTION 608. Disqualification; Conflicting Interests
SECTION 609. Corporate Trustee Required; Eligibility
SECTION 610. Resignation and Removal; Appointment of Successor
SECTION 611. Acceptance of Appointment by Successor
SECTION 612. Merger, Conversion, Consolidation or Succession to Business
SECTION 613. Preferential Collection of Claims Against Company
SECTION 614. Appointment of Authenticating Agent
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders
SECTION 702. Preservation of Information; Communications to Holders
SECTION 703. Reports by Trustee
SECTION 704. Reports by Company
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms
SECTION 802. Successor Substituted
ARTICLE NINE
Supplemental Indentures
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SECTION 901. Supplemental Indentures Without Consent of Holders
SECTION 902. Supplemental Indentures With Consent of Holders
SECTION 903. Execution of Supplemental Indentures
SECTION 904. Effect of Supplemental Indentures
SECTION 905. Conformity with Trust Indenture Act
SECTION 906. Reference in Securities to Supplemental Indentures
ARTICLE TEN
Covenants; Representations and Warranties
SECTION 1001. Payment of Principal and Interest
SECTION 1002. Maintenance of Office or Agency
SECTION 1003. Money for Debenture Payments to Be Held in Trust
SECTION 1004. Statement by Officers as to Compliance
SECTION 1005. Additional Sums
SECTION 1006. Additional Covenants
SECTION 1007. Waiver of Certain Covenants
ARTICLE ELEVEN
Subordination of Debentures
SECTION 1101. Debentures Subordinate to Senior Debt
SECTION 1102. Payment Over of Proceeds Upon Dissolution, Etc.
SECTION 1103. Prior Payment to Senior Debt Upon Acceleration of Debentures
SECTION 1104. No Payment When Senior Debt in Default
SECTION 1105. Payment Permitted If No Default
SECTION 1106. Subrogation to Rights of Holders of Senior Debt
SECTION 1107. Provisions Solely to Define Relative Rights
SECTION 1108. Trustee to Effectuate Subordination
SECTION 1109. No Waiver of Subordination Provisions
SECTION 1110. Notice to Trustee
SECTION 1111. Reliance on Judicial Order or Certificate of Liquidating Agent
SECTION 1112. Trustee Not Fiduciary for Holders of Senior Debt
SECTION 1113. Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights
SECTION 1114. Article Applicable to Paying Agents
SECTION 1115. Certain Conversions or Exchanges Deemed Payment
ARTICLE TWELVE
Redemption of Debentures
SECTION 1201. Applicability of this Article
SECTION 1202. Election to Redeem; Notice to Trustee
SECTION 1203. Selection by Trustee of Debentures to Be Redeemed
SECTION 1204. Notice of Redemption
SECTION 1205. Deposit of Redemption Price
SECTION 1206. Debentures Payable on Redemption Date
SECTION 1207. Optional Redemption; Conditions to Optional Redemption
ARTICLE THIRTEEN
Miscellaneous
SECTION 1301. Counterparts
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INDENTURE, dated as of February 5, 1999, between VIB Corp, a California
corporation (herein called the "Company"), having its principal office at 0000
Xxxx Xxxxxx, Xx Xxxxxx, Xxxxxxxxxx 00000 and Wilmington Trust Company, a banking
corporation duly organized and existing under the laws of Delaware, as Trustee
(herein called the "Trustee"). Unless otherwise defined herein, all capitalized
items used herein shall have the meanings ascribed to them in the Amended and
Restated Trust Agreement between the Company, as Depositor and Wilmington Trust
Company, Xxxxxxx X. Xxxx, an individual, Xxxxxx X. Xxxx, an individual, and
Xxxxx X. Xxxxxxx, III, an individual, as trustees, and the holders, from time to
time, of undivided beneficial interests in the assets of the Trust, dated as of
February 5, 1999 (the "Trust Agreement"), as in effect on the date hereof, the
form of which is attached as Annex A hereto.
RECITALS OF THE COMPANY
WHEREAS, Valley Capital Trust (the "Trust") may, pursuant to the Purchase
Terms Agreement dated January 29, 1999 among the Company, the Trust and First
Tennessee Capital Markets (the "Placement Agent"), issue up to $23,000,000
aggregate liquidation amount of its 9.00% Capital Securities (the "Capital
Securities" and, together with the Common Securities, the "Trust Securities")
with a liquidation amount of $1,000 per Capital Security;
WHEREAS, the parties hereto desire that this Indenture be subject to the
provisions of the Trust Indenture Act of 1939, as amended, that would be
required to be part of this Indenture (if the Indenture was subject by law to
such act), and shall, to the extent applicable, be governed by such provisions;
WHEREAS, the Company is guaranteeing the payment of distributions on the
Capital Securities of the Trust and payment of the Redemption Price and payments
on liquidation with respect to the Capital Securities, to the extent provided in
the Guarantee Agreement dated as of February 5, 1999, between the Company and
Wilmington Trust Company as guarantee trustee (the "Parent Guarantee") for the
benefit of the holders of the Capital Securities;
WHEREAS, the Company wishes to sell to the Trust, and the Trust wishes to
purchase from the Company, Debentures (as defined below) in an aggregate
principal amount up to $23,712,000 and in satisfaction of the purchase price for
such Debentures, the trustees of the Trust, on behalf of the Trust, wish to (i)
execute and deliver to the Company Common Securities certificates evidencing an
ownership interest in the Trust, registered in the name of the Company, in an
aggregate amount of up to 712 Common Securities having an aggregate liquidation
amount of up to $712,000 and (ii) deliver to the Company the sum of up to
$23,712,000;
WHEREAS, the Company has duly authorized the creation and issuance of an
issue of its unsecured 9.00% Junior Subordinated Debentures (the "Debentures,"
and, individually, a "Debenture"), of substantially the tenor and amount
hereinafter set forth issued to evidence loans made to the Company of the
proceeds from the issuance by the Trust of the Capital Securities and Common
Securities, to provide the terms and conditions upon which the Debentures are to
be authenticated, issued and delivered and to provide therefor the Company has
duly authorized the execution and delivery of this Indenture; and
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WHEREAS, all things necessary to make the Debentures, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Debentures by the Holder thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Debentures, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. DEFINITIONS.
For all purposes of this Indenture and any indenture supplemental hereto,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings
assigned to them therein (except as otherwise expressly provided
herein or unless the context otherwise requires);
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder
shall mean such accounting principles which are generally accepted
at the date or time of such computation; provided, that when two or
more principles are so generally accepted, it shall mean that set of
principles consistent with those in use by the Company; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified in
Section 104.
"Additional Interest" means interest, if any, that shall accrue on any
interest on the Debentures the payment of which has not been made on the
applicable Interest Payment Date and which shall accrue at the rate of 9.00% per
annum compounded quarterly (to the extent permitted by law).
"Additional Sums" has the meaning specified in Section 1005.
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"Additional Taxes" means the sum of any additional taxes, duties and other
governmental charges to which the Trust has become subject from time to time as
a result of a Tax Event.
"Administrative Trustees" means each Person identified as an
"Administrative Trustee" in the Trust Agreement, solely in such Person's
capacity as Administrative Trustee of the Trust under such Trust Agreement and
not in such Person's individual capacity, or any successor administrative
trustee appointed as therein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Global Security, the rules and procedures of the Depositary for such
Global Security, in each case to the extent applicable to such transaction and
as in effect from time to time.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Debentures.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors or such committee of the Board of Directors or officers of the
Company to which authority to act on behalf of the Board of Directors has been
delegated, and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" means any day other than a Saturday or Sunday or 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 a day on which the Corporate Trust
Office of the Trustee, or the principal office of the Property Trustee under the
Trust Agreement, is closed for business.
"Capital Securities" has the meaning specified in the Recitals to this
Indenture.
"Capital Treatment Event" means the receipt by the Trust or 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 prospective
change) in, the laws (or any regulations thereunder) of the United States or any
agency thereof, or any official administrative pronouncement or judicial
interpreting or applying such laws or regulations, that there is more than an
insubstantial
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risk that the Capital Securities will no longer qualify as Tier 1 Capital (or
the then equivalent thereof) for purposes of the capital adequacy guidelines of
the Federal Reserve; provided, however, that a Capital Treatment Event may not
be triggered by the Company having excess cumulative preferred capital which may
not qualify as Tier 1 Capital.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Securities" means undivided beneficial interests in the assets of
the Trust, having a Liquidation Amount of $1,000 per Common Security and having
the rights provided therefor in the Trust Agreement.
"Common Stock" means the common stock, without par value, of the Company.
"Company" means VIB Corp, a corporation duly organized and existing under
the laws of the State of California and subject to the applicable provisions of
this Indenture, shall also include its successors and assigns.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its Vice Chairman of the Board, its President or a Vice
President, and by its Chief Financial Officer, the Controller, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in the
City of Wilmington, Delaware, at which at any particular time its corporate
trust business shall be administered and which at the date of this Indenture is
Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
"Corporation" includes a corporation, association, company, limited
liability company, joint-stock company or business trust.
"Debenture" or "Debentures" shall have the meaning set forth in the
recitals hereto.
"Debenture Holder," "Holder of Debentures," "registered holder" or other
similar term shall mean a Person in whose name a Debenture is registered in the
Debenture Register.
"Debenture Register" and "Debenture Registrar" have the respective
meanings specified in Section 305.
"Debt" means, with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
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respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; and (vi) every
obligation of the type referred to in clauses (i) through (v) of another Person
and all dividends of another Person the payment of which, in either case, such
Person has guaranteed or is responsible or liable for, directly or indirectly,
as obligor or otherwise.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Debentures issuable or issued in
whole or in part in the form of one or more Global Securities, the Person
designated as Depositary by the Company pursuant to this Indenture or any
successor thereto.
"Event of Default" has the meaning specified in Section 501.
"Expense Agreement" means the Expense Agreement contemplated by Section
607.
"Extension Period" has the meaning specified in Section 301.
"Global Security" means a Debenture in the form prescribed in Section 204
evidencing all or part of the Debentures, issued to the Depositary or its
nominee, and registered in the name of such Depositary or its nominee.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Government Obligations" means, with respect to the Debentures, securities
which are (i) direct obligations of the United States of America or (ii)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed by the United States of America and which, in either
case, are full faith and credit obligations of the United States of America and
are not callable or redeemable at the option of the issuer thereof and shall
also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to
any such Government Obligation or a specific payment of interest on or principal
of any such Government Obligation held by such custodian for the account of the
holder of such depository receipt; provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
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provisions of the Trust Indenture Act, if any, that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively.
"Interest Payment Date," when used with respect to any installment of
interest on a Debenture, means the date specified in such Debenture as the fixed
date on which an installment of interest with respect to the Debentures is due
and payable.
"Investment Company Event" means the receipt by the Company or the Trust
of an Opinion of Counsel experienced in such matters to the effect that, as a
result of the occurrence 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 (a "Change in 1940 Act Law"),
the Trust or the Company is or will be considered an "investment company" that
is required to be registered under the Investment Company Act of 1940, as
amended (the "Investment Company Act"), which Change in 1940 Act Law becomes
effective on or after the date of original issuance of the Debentures.
"Junior Subordinated Payment" has the meaning specified in Section 1102.
"Maturity," when used with respect to any Debenture, means the date on
which the principal of such Debenture becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the Chief Executive Officer, a Vice Chairman of the Board, the President
or a Vice President, and by the Chief Financial Officer, the Controller, the
Secretary or an Assistant Secretary, of the Company, and delivered to the
Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 1004 shall be the principal executive, financial, investment or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company (and who may be an employee of the Company), and who
shall be acceptable to the Trustee.
"Outstanding," when used with respect to Debentures, means, as of the date
of determination, all Debentures theretofore authenticated and delivered under
this Indenture, except: (i) Debentures theretofore canceled by the Trustee or
any Paying Agent or delivered to the Trustee or any Paying Agent for
cancellation; (ii) Debentures for whose payment or redemption money or
Governmental Obligations in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Debentures, provided that, if such
Debentures are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made; and (iii) Debentures which have been paid pursuant to Section 306, or
in exchange for or in lieu of which other Debentures have been authenticated and
delivered pursuant to this Indenture, other than any such Debentures in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Debentures are held by Holders in whose hands such Debentures are
valid, binding and legal obligations of the Company; provided, however, that in
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determining whether the Holders of the requisite principal amount of Outstanding
Debentures have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Debentures owned by the Company or any other
obligor upon the Debentures or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Debentures which the Trustee knows to be so owned shall be so disregarded.
Debentures so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Debentures and that the pledgee
is not the Company or any other obligor upon the Debentures or any Affiliate of
the Company or such other obligor. Upon the written request of the Trustee, the
Company shall furnish to the Trustee promptly an Officers' Certificate listing
and identifying all Debentures, if any, known by the Company to be owned or held
by or for the account of the Company, or any other obligor on the Debentures or
any Affiliate of the Company or such obligor, and, subject to the provisions of
Section 601, the Trustee shall be entitled to accept such Officers' Certificate
as conclusive evidence of the facts therein set forth and of the fact that all
Debentures not listed therein are Outstanding for the purpose of any such
determination.
"Parent Guarantee" has the meaning specified in the Recitals to this
Indenture.
"Paying Agent" means any Person authorized by the Company to pay the
principal (or premium, if any) of or interest on, or other amounts in respect
of, any Debentures on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Debenture" of any particular Debenture means every previous
Debenture evidencing all or a portion of the same debt as that evidenced by such
particular Debenture; and, for the purposes of this definition, any Debenture
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Debenture shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Debenture.
"Proceeding" has the meaning specified in Section 1102.
"Property Trustee" means the commercial bank or trust company identified
as the "Property Trustee" in the Trust Agreement, solely in its capacity as
Property Trustee under such Trust Agreement and not in its individual capacity,
or its successor in interest in such capacity, or any successor property trustee
appointed as therein provided.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A
promulgated under the Securities Act of 1933, as amended.
"Redemption Date," when used with respect to any Debenture to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
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"Redemption Price," when used with respect to any Debenture to be
redeemed, has the meaning specified in Section 1207.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the fifteenth day of the month in which the relevant Interest Payment
Date occurs.
"Responsible Officer," when used with respect to the Trustee, means any
officer of the Trustee assigned by the Trustee from time to time to administer
its corporate trust matters.
"Senior Debt" means the principal of (and premium, if any) and interest,
if any (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding), on Debt,
whether incurred on or prior to the date of this Indenture or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Debentures or to other Debt which is pari
passu with, or subordinated to, the Debentures; provided, however, that Senior
Debt shall not be deemed to include (a) any Debt of the Company which, when
incurred and without respect to any election under Section 1111(b) of the
Bankruptcy Reform Act of 1978, was without recourse to the Company, (b) any Debt
of the Company to any of its Subsidiaries, (c) Debt to any employee of the
Company, (d) trade accounts payable of the Company, (e) accrued liabilities
arising in the ordinary course of business of the Company, (f) the Debentures,
and (g) the Parent Guarantee.
"Special Event" means an Investment Company Event, a Tax Event, or a
Capital Treatment Event.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Debenture or any
installment of principal thereof or interest thereon, means February 5, 2029,
the date on which the principal, together with any accrued and unpaid interest,
of such Debenture or such installment of interest is due and payable, or if the
Company elects to accelerate the maturity date in accordance with Section 1207
hereof, such earlier date as the Company selects, but in no event before
February 5, 2009.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Tax Event" means the receipt by the Trust or 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 prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision
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or taxing authority thereof or therein or 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 Debentures, there
is more than an insubstantial risk that (i) the 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 interest income received or accrued on the
Debentures, (ii) interest payable by the Company on the Debentures 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) the Trust 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.
"Trust" means Valley Capital Trust, a Delaware business trust declared and
established pursuant to the Delaware Business Trust Act (12 Del. Code Section
3801 et. seq.) by the Trust Agreement.
"Trust Agreement" has the meaning specified in the first paragraph of this
Indenture.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as amended and
as in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trust Securities" has the meaning specified in the Recitals to this
Indenture.
"Vice President," when used with respect to the Company or the Trustee,
means any duly appointed vice president, whether or not designated by a number
or a word or words added before or after the title "vice president."
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SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent
(including covenants, compliance with which constitutes a condition precedent),
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all conditions precedent (including covenants compliance with which
constitute a condition precedent), if any, have been complied with, except that
in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished. Every certificate or opinion delivered with respect
to compliance with a condition or covenant provided for in this Indenture (other
than the certificate provided pursuant to Section 1004) shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions herein relating
thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
SECTION 103. FORM OF OPINION DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
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information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given to or
taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the
Trustee at the address specified in Section 105 and, where it is
hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section
601) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity,
such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution by any Person
of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, but shall not be obligated, to fix any day as the
record date for the purpose of determining the Holders entitled to
give or take any request, demand, authorization, direction, notice,
consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Holders. Except as
otherwise provided herein, if not set by the Company prior to the
first solicitation of a Holder made by any Person in respect of any
such action, or, in the case of any such vote, prior to such vote,
the record date for any such action or vote shall be the 30th day
(or, if later, the date of the most recent list of Holders required
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to be provided pursuant to Section 701) prior to such first
solicitation or vote, as the case may be. With regard to any record
date, only the Holders on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant
action, whether or not such Persons continue to be Holders after
such record date; provided, however, that unless such vote or
consent is obtained from the Holders (or their duly designated
proxies) of the requisite principal amount of Outstanding Debentures
prior to the Expiration Date (as defined below), any such vote or
consent previously given shall automatically and without further
action by any Holder be canceled and of no further effect and
nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of
Outstanding Debentures on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date,
the proposed action by Holders and the applicable Expiration Date to
be given to the Trustee in writing and to each Holder of Debentures
in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join
in the giving or making of (i) any Notice of Default, (ii) any
declaration of acceleration referred to in Xxxxxxx 000, (xxx) any
request to institute proceedings referred to in Section 507(2), or
(iv) any direction referred to in Section 512. If any record date is
set pursuant to this paragraph, the Holders of Outstanding
Debentures on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction,
whether or not such Holders remain Holders after such record date,
provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of
the requisite principal amount of Outstanding Debentures on such
record date. Nothing in this paragraph shall be construed to prevent
the Trustee from setting a new record date for any action for which
a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect), and
nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of
Outstanding Debentures on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the
Trustee, at the Company's expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration
Date to be given to the Company in writing and to each Holder of
Debentures in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the
party hereto that sets such record date may designate any date as
the "Expiration Date" and from time to time may change the
Expiration Date to any earlier or later date, provided that no such
change shall be effective unless notice of the proposed new
Expiration Date is given to the other party hereto in writing, and
to each Holder of Debentures in the manner set forth in Section 106,
on or prior to
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the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this
Section, the party hereto that set such record date shall be deemed
to have initially designated the 180th day after such record date as
the Expiration Date with respect thereto, subject to its right to
change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later
than the 180th day after the applicable record date.
(d) The ownership of Debentures shall be proved by the Debenture
Register or by a certificate of the Debenture Registrar.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Debenture shall bind every
future Holder of the same Debenture and the Holder of every
Debenture issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made
upon such Debenture.
(f) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Debenture may do
so with regard to all or any part of the principal amount of such
Debenture or by one or more duly appointed agents each of which may
do so pursuant to such appointment with regard to all or any part of
such principal amount.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND THE COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the
Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Debenture Register, not later
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than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
Notwithstanding the non-qualification of this Indenture under the Trust
Indenture Act, if any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that would be required under such Act to be
a part of and govern this Indenture if this Indenture were to be so qualified,
the latter provision shall control. If any provision of this Indenture modifies
or excludes any provision of the Trust Indenture Act that may be so modified or
excluded, such provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
The Company will have the right at all times to assign any of its rights
or obligations under this Indenture to a direct or indirect wholly-owned
subsidiary of the Company; provided, that, in the event of any such assignment,
the Company will remain liable for all such obligations. The Trust may not
assign any of its rights under this Indenture without the prior written consent
of the Company. This Indenture is not otherwise assignable by the parties
hereto. Subject to the foregoing, this Indenture shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns,
whether so expressed or not.
SECTION 110. SEVERABILITY CLAUSE.
In case any provision in this Indenture or in the Debentures shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
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Nothing in this Indenture or in the Debentures, express or implied, shall
give to any Person, other than the parties hereto, any Paying Agent and their
successors and assigns hereunder, the holders of Senior Debt, the holders of
Capital Securities (to the extent provided herein) and the Holders of
Debentures, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE DEBENTURES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REFERENCE TO ITS
CONFLICTS OF LAWS PROVISIONS. THIS INDENTURE IS DEEMED TO BE SUBJECT TO THE
PROVISIONS OF THE TRUST INDENTURE ACT OF 1939, AS AMENDED, THAT ARE REQUIRED TO
BE PART OF THIS INDENTURE AND SHALL, TO THE EXTENT APPLICABLE, BE GOVERNED BY
SUCH PROVISIONS.
SECTION 113. NON-BUSINESS DAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Debenture shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Debentures) payment of interest or
principal (and premium, if any) or other amounts in respect of the Debentures
need not be made on such date, but may be made on the next succeeding Business
Day in each case (except that, if such Business Day is in the next succeeding
calendar year, payment shall be made on the immediately preceding Business Day)
in each case with the same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity, provided that no interest
shall accrue in respect of the amounts whose payment is so delayed for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
ARTICLE TWO
Debenture Forms
SECTION 201. FORMS GENERALLY.
The Debentures and the Trustee's certificates of authentication shall be
in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture.
The definitive Debentures shall be printed, lithographed or engraved or
produced by any combination of these or other methods, if required by any
securities exchange on which the Debentures may be listed, on a steel engraved
border or steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Debentures may be
listed, all as determined by the officers executing such Debentures, as
evidenced by their execution of such Debentures.
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SECTION 202. FORM OF FACE OF DEBENTURE.
THE DEBENTURES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH DEBENTURES MAY NOT BE SOLD OR
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
SAID ACT.
VIB CORP
9.00% Junior Subordinated Debenture
No. 1 $__________________
VIB Corp, a California corporation (herein called the "Company," which
term includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to Valley Capital Trust, the
principal sum of _______________ DOLLARS ($________________) on February 5, 2029
(the "Stated Maturity").
The Company further promises to pay interest on said principal sum from
February 5, 1999 or from the most recent interest payment date (each such date,
an "Interest Payment Date") to which interest has been paid or duly provided
for, quarterly (subject to deferral as set forth herein) in arrears on March 31,
June 30, September 30 and December 31 of each year, commencing March 31, 1999,
at the rate of 9.00% per annum until the principal hereof is paid or duly
provided for or made available for payment; provided that any overdue principal,
and any overdue installment of interest shall bear Additional Interest at the
rate of 9.00% per annum (to the extent that the payment of such interest shall
be legally enforceable), compounded quarterly, from the dates such amounts are
due until they are paid or made available for payment. The amount of interest
payable for any period less than a full interest period will be computed on the
basis of twelve 30-day months and a 360-day year and the actual days elapsed in
a partial month in such period. In the event that any date on which interest is
payable on this Debenture 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. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Debenture (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
close of business on the fifteenth day of the month in which the relevant
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
Debenture (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date.
So long as no event of default with respect to this Debenture has occurred
and is continuing, the Company shall have the right at any time during the term
of this Debenture, from time to time, to defer the payment of interest on such
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Debenture from time to time for up to twenty consecutive quarters with respect
to each deferral period (each an "Extension Period"), during which period
interest will compound quarterly and the Company shall have the right to make
partial payments of interest on any Interest Payment Date, and at the end of
which Extension Period the Company shall pay all interest then accrued and
unpaid including any Additional Interest; provided, however, that no Extension
Period shall extend beyond the Stated Maturity of the principal of this
Debenture as then in effect; provided further that during any such Extension
Period, the Company shall not, and shall cause any Subsidiary of the Company not
to, (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, (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt security of the
Company ranking pari passu with or junior in interest to this Debenture or make
any guarantee payments with respect to any guarantee by the Company of the debt
securities of any Subsidiary of the Company that by their terms rank pari passu
or junior in interest to this Debenture, (iii) sell, lease, license, transfer or
otherwise dispose of any asset or interest therein or (iv) with respect to the
Company, make any capital contributions or similar advances to its Subsidiaries;
provided, however, that the foregoing restrictions shall not prevent (a) any
such transaction (other than transactions described in clause (iv) above) in the
ordinary course of business or in immaterial amounts, (b) a reorganization of
Subsidiaries of the Company so long as the Company's percentage ownership
interest in such Subsidiaries does not decrease, (c) dividends or distributions
in Common Stock of the Company, (d) payments under the guarantee of the Company
with respect to payments of distributions and payments on liquidation or
redemption of the Capital Securities, but only in each case to the extent of
funds held by the Issuer thereof or under any other similar guarantee by the
Company with respect to any other securities of any of its Subsidiaries,
provided that the proceeds of the issuance of such securities were used to
purchase debt securities of the Company that rank pari passu with or junior to
this Debenture and (e) purchases of Common Stock of the Company in connection
with the issuance of Common Stock of the Company under any of the Company's
benefit plans for directors, officers or employees. Prior to the termination of
any such Extension Period, the Company may further defer the interest payments,
provided that no Extension Period shall exceed twenty consecutive quarters or
extend beyond the Stated Maturity of this Debenture. Upon the termination of any
such Extension Period and upon the payment of all accrued 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 but each
installment of interest that would otherwise have been due and payable during
such Extension Period shall bear Additional Interest (to the extent that the
payment of such interest shall be legally enforceable) at the rate of 9.00% per
annum, compounded quarterly and calculated as set forth in the first paragraph
of this Debenture, from the dates on which amounts would otherwise have been due
and payable until paid or made available for payment. The Company shall give the
Trustee and the Administrative Trustees notice of its election to begin an
Extension Period at least two Business Days prior to the earliest of (i) the
date interest on this Debenture would have been payable except for the election
to begin such Extension Period or (ii) the next succeeding date such
distributions on the Trust Securities would have been payable except for the
election to begin such Extension Period.
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In the event that the holders of the Capital Securities are owed 20
dividends in arrears, any individual holder has the right to ask the Trustee to
enforce its acceleration rights as outlined in the Indenture. The Trustee may or
may not elect to enforce such acceleration rights.
The principal and interest (including any Additional Interest) on this
Debenture shall be payable at the office or agency as the Company may designate
from time to time 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 interest may be made, except in the case of
Debentures in global form, (i) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Debenture Register or (ii)
by transfer to an account maintained by the Person entitled thereto as specified
in the Debenture Register; provided that proper transfer instructions have been
received by the Regular Record Date.
The indebtedness evidenced by this Debenture 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 Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Debenture,
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 action 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 hereby made to the further provisions of the Indenture
summarized 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 Debenture
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, VIB Corp has caused this instrument to be duly
executed under its corporate seal.
Dated:
VIB CORP
By: _____________________________________
Name: ___________________________________
Title: __________________________________
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ATTEST: ___________________________
______________________________
SECTION 203. FORM OF REVERSE OF DEBENTURE.
This Debenture is one of a duly authorized issue of Debentures of the
Company, designated as its 9.00% Junior Subordinated Debentures (herein called
the "Debentures"), limited in aggregate principal amount to $[ ]
issued under an Indenture, dated as of February 5, 1999 (herein called the
"Indenture"), between the Company and Wilmington Trust Company, 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 Debentures, and of the terms upon which the Debentures are, and
are to be, authenticated and delivered.
All terms used in this Debenture which are defined in the Indenture or in
the Trust Agreement attached as Annex A thereto shall have the meanings assigned
to them in the Indenture or the Trust Agreement, as the case may be.
At any time on or after February 5, 2009, the Company shall have the
right, subject to the terms and conditions of Article Twelve of the Indenture,
to redeem this Debenture at the option of the Company, without premium or
penalty, in whole at any time or in part from time to time, at the Redemption
Price as defined in Article 12 of the Indenture.
If a Special Event as defined in the Indenture shall occur and be
continuing prior to February 5, 2009, the Company shall have the right, subject
to the terms and conditions of Article Twelve of the Indenture, to redeem this
Debenture at the option of the Company, without premium or penalty, in whole but
not in part, within 90 days following the occurrence of such Special Event,
subject to the provisions of Section 1207 and other provisions of Article Twelve
of the Indenture, at the Redemption Price. Any redemption pursuant to this
paragraph will be made upon not less than 30 nor more than 60 days' notice, at
the Redemption Price. If the Debentures are only partially redeemed by the
Company, the Debentures will be redeemed pro rata.
In the event of redemption of this Debenture in part only, a new Debenture
or Debentures 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 the Debentures shall occur and be
continuing, the principal of the Debentures may be declared due and payable in
the manner, with the effect and subject to the conditions provided in the
Indenture.
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The Indenture contains provisions for satisfaction and discharge and
defeasance at any time of the entire indebtedness of this Debenture upon
compliance by the Company with certain conditions set forth in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities, to modify the Indenture in a manner
affecting the rights of the Holders of the Debentures; provided that no such
modification may, without the consent of the Holder of each Outstanding
Debenture affected thereby, (i) change the fixed maturity of the Debentures or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or (ii) reduce the percentage of principal amount
of the Debentures, the Holders of which are required to consent to any such
modification of the Indenture; provided, that, so long as any of the Capital
Securities remains Outstanding, no such modification may be made that adversely
affects the Holders of the Capital Securities, and no termination of the
Indenture may occur, and no waiver of any Event of Default or compliance with
any covenant under the Indenture may be effective, without the prior consent of
the Holders of at least a majority of the aggregate Liquidation Amount (as
defined in the Trust Agreement) of the Outstanding Capital Securities unless and
until the principal of the Debentures and all accrued and unpaid interest
(including any Additional Interest) thereon have been paid in full. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Debentures at the time Outstanding, on behalf of the
Holders of all Debentures, 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 Debenture
shall be conclusive and binding upon such Holder and upon all future Holders of
this Debenture and of any Debenture issued upon the registration of transfer
hereof or in exchange therefore or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Debenture.
As provided in and subject to the provisions of the Indenture, if an Event
of Default with respect to the Debentures 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 aggregate principal amount of the Outstanding Securities may declare
the principal amount of all the Debentures to be due and payable immediately, by
a notice in writing to the Company (and to the Trustee if given by Holders),
provided that, if upon an Event of Default the Trustee or such Holders fail to
declare the principal of all the Outstanding Securities to be immediately due
and payable, the holders of at least 25% in aggregate Liquidation Amount of the
Capital Securities then Outstanding shall have the right to make such
declaration by a notice in writing to the Company and the Trustee; and upon any
such declaration the principal amount of and the accrued interest (including any
Additional Interest) on all the Debentures shall become immediately due and
payable, provided that the payment of principal and interest (including any
Additional Interest) on such Debentures shall remain subordinated to the extent
provided in Article Eleven of the Indenture.
No reference herein to the Indenture and no provision of this Debenture 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 Debenture at the times, place and rate, and in the coin or
currency, herein prescribed.
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As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Debenture is registrable in the Debenture
Register, upon surrender of this Debenture for registration of transfer at the
office or agency of Wilmington Trust Company in Wilmington, Delaware, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to Wilmington Trust Company, as the Debenture Registrar, duly
executed by the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures of like tenor, 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 or Wilmington Trust
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 Debenture for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Debenture is registered as the owner hereof for
all purposes, whether or not this Debenture be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
The Debentures 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, Debentures are
exchangeable for a like aggregate principal amount of Debentures of a different
authorized denomination, as requested by the Holder surrendering the same.
The Company and, by its acceptance of this Debenture or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Debenture agree that for United States federal, state and
local tax purposes it is intended that this Debenture constitute indebtedness.
THIS INDENTURE AND THE DEBENTURES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
SECTION 204. ADDITIONAL PROVISIONS REQUIRED IN GLOBAL SECURITY.
Any Global Security issued hereunder shall, in addition to the provisions
contained in Sections 202, 203 and 305, bear legends in substantially the
following form:
This Debenture is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of The Depository Trust
Company, a New York corporation ("DTC") or a nominee of DTC. This Debenture is
exchangeable for Debentures registered in the name of a person other than DTC or
its nominee only in the limited circumstances described in the Indenture and no
transfer of this Debenture (other than a transfer of this Debenture as a whole
by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of
DTC) may be registered except in limited circumstances.
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Unless this Debenture is presented by an authorized representative of DTC
to VIB Corp or its agent for registration of transfer, exchange or payment, and
any Debenture issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment
hereon is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co. has an interest herein.
SECTION 205. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Debentures referred to in the within-mentioned
Indenture.
___________________________________
AS TRUSTEE
_________________________________________
AUTHORIZED OFFICER
ARTICLE THREE
The Debentures
SECTION 301. TITLE AND TERMS; PAYING AGENT.
The aggregate principal amount of Debentures which may be authenticated
and delivered under this Indenture is limited to $23,712,000 except for
Debentures authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Debentures pursuant to Section 304, 305, 306,
906 or 1208.
The Debentures shall be known and designated as the "9.00% Junior
Subordinated Debentures" of the Company. Their Stated Maturity shall be February
5, 2029, or if the Company elects to accelerate the maturity date in accordance
with Section 1207 hereof, such earlier date as the Company selects, but in no
event before February 5, 2009.
The Debentures shall bear interest at the rate of 9.00% per annum, from
February 5, 1999 or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, as the case may be, payable quarterly
(subject to deferral as set forth herein), in arrears, on March 31, June 30,
September 30, and December 31 of each year, commencing March 31, 1999 until the
principal thereof is paid or made available for payment. Accrued interest that
is not paid on the applicable Interest Payment Date (even if unpaid due to an
extension of an interest payment period as set forth below in this Section 301)
will bear Additional Interest on the amount thereof. In the event that any date
on which interest is payable on the Debentures 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 (except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day) (and without any interest or other payment in respect of
any such delay), in each case with the same force and effect as if made on the
date the payment was originally payable.
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So long as no Event of Default hereunder has occurred and is continuing,
the Company shall have the right, at any time during the term of the Debentures,
to defer the payment of interest on such Debentures from time to time, for up to
twenty consecutive quarters (each, an "Extension Period") during which Extension
Periods interest will compound quarterly and the Company shall have the right to
make partial payments of interest on any Interest Payment Date. At the end of
any such Extension Period the Company shall pay all interest then accrued and
unpaid on the Debentures (together with Additional Interest thereon, if any, at
the rate specified for the Debentures to the extent permitted by applicable
law), provided, however, that during any such Extension Period, neither the
Company nor any Subsidiary shall (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, (ii) make any
payment of principal, interest or premium, if any, on or repay, repurchase or
redeem any debt securities of the Company ranking pari passu with or junior in
interest to the Debentures or make any guarantee payments with respect to any
guarantee by the Company of the debt securities of any Subsidiary of the Company
that by their terms rank pari passu or junior in interest to the Debentures,
(iii) sell, lease, license, transfer or otherwise dispose of any asset or
interest therein or (iv) with respect to the Company, make any capital
contributions or similar advances to its Subsidiaries; provided, however, that
the foregoing restrictions shall not prevent (a) any such transaction (other
than transactions described in clause (iv) above) in the ordinary course of
business or in immaterial amounts, (b) a reorganization of Subsidiaries of the
Company so long as the Company's percentage ownership interest in such
Subsidiaries does not decrease, (c) dividends or distributions in Common Stock
of the Company, (d) payments under the guarantee of the Company with respect to
payments of distributions and payments on liquidation or redemption of the
Capital Securities, but only in each case to the extent of funds held by the
Issuer thereof or under any other similar guarantee by the Company with respect
to any other securities of any of its Subsidiaries, provided that the proceeds
of the issuance of such securities were used to purchase debt securities of the
Company that rank pari passu with or junior to this Debenture and (e) purchases
of Common Stock of the Company in connection with the issuance of Common Stock
of the Company under any of the Company's benefit plans for directors, officers
or employees. Prior to the termination of any such Extension Period, the Company
may further defer the interest payment period, provided that no Extension Period
shall exceed twenty consecutive quarters or extend beyond the Stated Maturity of
the Debentures. Upon the termination of any Extension Period and upon the
payment of all accrued 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 Trustee and the
Administrative Trustees notice of its election to begin any such Extension
Period.
The Trustee shall promptly give notice of the Company's election to begin
any such Extension Period to the Holders of the Outstanding Debentures.
The principal and Additional Interest, if any, and interest on the
Debentures shall be payable at the office of such Paying Agent or Paying Agents
as the Company may designate for such purpose from time to time, 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
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option of the Company payment of interest may be made, except in the case of
Debentures in global form, (i) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Debenture Register or (ii)
by transfer to an account maintained by the Person entitled thereto as specified
in the Debenture Register; provided that proper transfer instructions have been
received by the Regular Record Date.
The Company designates Wilmington Trust Company as the initial Paying
Agent with respect to the Debentures. The Company may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent or
approve a change in the office through which any Paying Agent acts pursuant to
Section 1002.
The Debentures shall be subordinated in right of payment to Senior Debt as
provided in Article Eleven.
The Debentures shall be redeemable as provided in Article Twelve.
SECTION 302. DENOMINATIONS.
The Debentures shall be issuable only in registered form, without coupons,
and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Debentures shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its Chief Financial Officer, its
Chief Executive Officer, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Debentures
may be manual or facsimile.
Debentures bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Debentures or did not
hold such offices at the date of such Debentures.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Debentures executed by the Company to the
Trustee for authentication. Debentures may be authenticated on original issuance
from time to time and delivered pursuant to such procedures acceptable to the
Trustee ("Procedures") as may be specified from time to time by Company Order.
Procedures may authorize authentication and delivery pursuant to oral
instructions of the Company or a duly authorized agent, which instructions shall
be promptly confirmed in writing.
Prior to the delivery of a Debenture in any such form to the Trustee for
authentication, the Company shall deliver to the Trustee a Company Order
requesting the Trustee's authentication and delivery of all or a portion of the
Debentures, and if less than all, setting forth procedures for such
authentication. The Trustee in accordance with such Company Order shall
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authenticate and deliver such Debentures as in this Indenture provided and not
otherwise.
Each Debenture shall be dated the date of its authentication.
No Debenture shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Debenture a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Debenture shall be conclusive evidence, and the only evidence, that such
Debenture has been duly authenticated and delivered hereunder.
SECTION 304. TEMPORARY DEBENTURES.
Pending the preparation of definitive Debentures, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Debentures which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Debentures in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Debentures may determine, as evidenced by their
execution of such Debentures.
If temporary Debentures are issued, the Company will cause definitive
Debentures to be prepared without unreasonable delay. After the preparation of
definitive Debentures, the temporary Debentures shall be exchangeable for
definitive Debentures upon surrender of the temporary Debentures at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Debentures the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Debentures
having the same date of issuance and Stated Maturity and having the same terms
as such temporary Debentures. Until so exchanged the temporary Debentures shall
in all respects be entitled to the same benefits under this Indenture as
definitive Debentures.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee or at such other location as may be designated by the Company a register
(the register maintained in such office and in any other office or agency
designated pursuant to Section 1002 being herein sometimes collectively referred
to as the "Debenture Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of
Debentures and of transfers of Debentures. The Trustee is hereby appointed
"Debenture Registrar" for the purpose of registering Debentures and transfers of
Debentures as herein provided.
Upon surrender for registration of transfer of any Debenture (duly
endorsed or with the form of transfer endorsed thereon duly executed) at the
office of the Debenture Registrar or at an office or agency of the Company
designated pursuant to Section 1002 for such purpose, the Company shall execute,
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and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Debentures of any authorized
denominations, of a like tenor and aggregate principal amount, having the same
date of issuance, Stated Maturity and terms.
At the option of the Holder, Debentures may be exchanged for other
Debentures of any authorized denominations, of a like tenor and aggregate
principal amount having the same date of issuance, Stated Maturity and terms,
upon surrender of the Debentures to be exchanged at such office or agency.
Whenever any Debentures are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Debentures which
the Holder making the exchange is entitled to receive.
All Debentures issued upon any registration of transfer or exchange of
Debentures shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Debentures
surrendered upon such registration of transfer or exchange.
Every Debenture presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Debenture Registrar duly executed by the
Holder thereof or his attorney duly authorized in writing. Such transfer or
exchange will be effected upon the Debenture Registrar or the Company, as the
case may be, being satisfied with the documents of title and identity of the
Person making the request.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Debentures, but the Company or the Debentures Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Debentures, other than exchanges pursuant to Section 304, 906 or
1208 not involving any transfer.
Notwithstanding any other provision in this Indenture, a Global Security
may not be exchanged in whole or in part for Debentures registered, and no
transfer of the Global Security in whole or in part may be registered, in the
name of any Person other than the Depositary for such Global Security, or a
nominee thereof, unless (i) such Depositary advises the Company in writing that
such Depositary is no longer willing or able to continue as Depositary with
respect to such Global Security, and the Depositor is unable to locate a
qualified successor, (ii) there shall have occurred and be continuing an Event
of Default. If a Capital Security which is not a Global Capital Security is
transferred to a Holder which desires to take delivery in the form of a
beneficial interest in a Global Capital Security, then such transfer shall be
permitted pursuant to the provisions of Section 5.05(b)(i). In addition,
beneficial interests in a Global Capital Security may be exchanged by or on
behalf of the Clearing Agency for certificated Capital Debentures upon transfer
of such beneficial interests to a non-QIB.
If the Global Security is to be exchanged for Debentures or canceled in
whole, it shall be surrendered by or on behalf of the Depositary or its nominee
to the Debenture Registrar for exchange or cancellation as provided herein. If
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the Global Security is to be exchanged for Debentures or canceled in part, or if
a Debenture is to be exchanged in whole or in part for a beneficial interest in
the Global Security, then either (i) such Global Security shall be so
surrendered for exchange or cancellation as provided herein or (ii) the
aggregate principal amount thereof shall be reduced, or increased by an amount
equal to the portion thereof to be so exchanged or canceled, or equal to the
aggregate principal amount of such Debenture to be so exchanged for a beneficial
interest therein, as the case may be, by means of an appropriate adjustment made
on the records of the Debenture Registrar, whereupon the Company, in accordance
with the Applicable Procedures, shall instruct the Depositary or its authorized
representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of the Global Security by the Depositary the Company
shall, subject hereto, sign and make available for delivery any executed
Debentures delivered to it issuable in exchange for such Global Security (or any
portion thereof) in accordance with the instructions of the Depositary. The
Company shall not be liable for any delay in delivery of such instructions and
may conclusively rely on, and shall be fully protected in relying on, such
instructions.
Neither the Company nor the Debenture Registrar shall be required,
pursuant to the provisions of this Section, to register the transfer of or
exchange any Debenture so selected for redemption in whole or in part, except,
in the case of any Debenture to be redeemed in part, any portion thereof not to
be redeemed.
Notwithstanding any other provision of this Indenture, transfers and
exchanges of Debentures and beneficial interests in a Global Security shall be
made only as follows:
(a) Non-Global Security to Global Security. If the Holder of a Debenture
(other than the Global Security) wishes at any time to transfer all
or any portion of such Debenture to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the Global
Security, such transfer may be effected only as follows: Upon
receipt by the Debenture Registrar of (1) such Debenture and
instructions satisfactory to the Debenture Registrar directing that
a beneficial interest in the Global Security in a specified
principal amount not greater than the principal amount of such
Debenture to be credited to a specified Holder's account with the
Depositary, (2) the non-global Debenture duly executed by such
Holder or such Holder's attorney duly authorized in writing, then
the Debenture Registrar shall cancel such Debenture (and issue a new
Debenture in respect of any untransferred portion thereof) and
increase the aggregate principal amount of the Global Security by
the specified principal amount, and (3) a certification
substantially similar to that attached hereto as Exhibit A.
(b) Non-Global Security to Non-Global Security. A Debenture that is not
a Global Security may be transferred, in whole or in part, to a
Person who takes delivery in the form of another Debenture that is
not a Global Security.
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(c) Exchanges Between Global Security and Non-Global Security. A
beneficial interest in the Global Security may be exchanged for a
Debenture that is not a Global Security only as provided above.
(d) Limitations Relating to Principal Amount. Notwithstanding any other
provision of this Indenture and unless otherwise specified as
permitted by this Indenture, Debentures or portions thereof may be
transferred or exchanged only in principal amounts of not less than
$100,000 and integral multiples of $1,000 in excess thereof. Any
transfer, exchange or other disposition of Debentures in
contravention hereof shall be deemed to be void and of no legal
effect whatsoever, any such transferee shall be deemed not to be the
Holder or owner of any beneficial interest in such Debentures for
any purpose, including but not limited to the receipt of interest
payable on such Debentures, and such transferee shall be deemed to
have no interest whatsoever in such Debentures.
(e) Restricted Debentures Legend
(i) Except as set forth in this Section 305, all Debentures shall
bear a restricted Debentures legend substantially in the
following form:
THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS OR ANY OTHER
APPLICABLE SECURITIES LAW. NEITHER THIS DEBENTURE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS DEBENTURE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER THIS DEBENTURE, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH VIB CORP (THE
"COMPANY") OR ANY "AFFILIATE" OF THE COMPANY WAS THE OWNER OF THIS DEBENTURE (OR
ANY PREDECESSOR OF THIS DEBENTURE) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) AS LONG AS THIS DEBENTURE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS
DEBENTURE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE
COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) OR
(E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR
OTHER INFORMATION SATISFACTORY TO IT, AND (ii) PURSUANT TO CLAUSE (D) TO REQUIRE
THAT THE TRANSFEROR DELIVER TO THE COMPANY A LETTER FROM THE TRANSFEREE
SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING
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MEMORANDUM DATED JANUARY 29, 1999. SUCH HOLDER FURTHER AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS DEBENTURE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
(ii) Subject to the following paragraphs of this Section 305(e), a
new Debenture (other than a Global Security) that does not
bear a restricted Debentures legend may be issued in exchange
for or in lieu of a restricted Debenture or any portion
thereof that bears such a legend if, in the Company's
judgment, placing such a legend upon such new Debenture is not
necessary to ensure compliance with the registration
requirements of the Securities Act, and a new Debenture shall
be authenticated and delivered as provided in this Section
305.
(iii) Notwithstanding the foregoing provisions of this Section
305(e), a successor Debenture of a Debenture that does not
bear a restricted Debentures legend shall not bear such form
of legend unless the Company has reasonable cause to believe
that such successor Debenture is a "restricted Debenture"
within the meaning of Rule 144 under the Securities Act, in
which case a new Debenture bearing a restricted Debentures
legend in exchange for such successor Debenture as provided in
this Section 305.
(iv) Upon any sale or transfer of a restricted Debenture (including
any restricted Debenture represented by a Global Security)
pursuant to an effective registration statement under the
Securities Act or pursuant to Rule 144 under the Securities
Act after such registration ceases to be effective: (A) in the
case of any restricted Debenture that is a definitive
Debenture, the Debenture Registrar shall permit the Holder
thereof to exchange such Restricted Debenture for a definitive
Debenture that does not bear the Restricted Debentures Legend
and rescind any restriction on the transfer of such Restricted
Debenture; and (B) in the case of any Restricted Debenture
that is represented by a Global Security, the Debenture
Registrar shall permit the Holder of such Global Security to
exchange such Global Security for another Global Security that
does not bear the Restricted Debentures Legend.
(v) If restricted Debentures are being presented or surrendered
for transfer or exchange then there shall be (if so required
by the Company), (A) if such restricted Debentures are being
delivered to the Debenture Registrar by a Holder for
registration in the name of such Holder, without transfer, a
certification from such Holder to that effect; or (B) if such
restricted Debentures are being transferred and if the Company
or Debenture Registrar so requests, evidence reasonably
satisfactory to them as to the compliance with the
restrictions set forth in the restricted Debentures legend.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN DEBENTURES.
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If any mutilated Debenture is surrendered to the Trustee together with
such security or indemnity as may be required by the Company or the Trustee to
save each of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Debenture of like tenor and
aggregate principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Debenture and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Debenture has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Debenture, a new Debenture of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debenture has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debenture, pay such Debenture.
Upon the issuance of any new Debenture under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Debenture issued pursuant to this Section in lieu of any
destroyed, lost or stolen Debenture shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debenture shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Debentures duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debentures.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest and Additional Interest on any Debenture which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Debenture (or one or more Predecessor
Debentures) is registered at the close of business on the Regular Record Date
for such interest payment except that, unless otherwise provided in the
Debentures, interest and any Additional Interest payable on the Stated Maturity
of the principal of a Debenture shall be paid to the Person to whom principal is
paid.
Any interest on any Debenture which is payable, but is not punctually paid
or duly provided for (except during an Extension Period), on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such
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Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Debentures (or their respective
Predecessor Debentures) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Debenture and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder at his address
as it appears in the Debenture Register, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been
so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Debentures (or their respective Predecessor
Debentures) are registered at the close of business on such Special
Record Date.
Subject to the foregoing provisions of this Section, each Debenture
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debenture shall carry the rights to interest accrued
and unpaid, and to accrue (including in each such case Additional Interest),
which were carried by such other Debenture.
SECTION 308. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Debenture is registered as the owner of such
Debenture for the purpose of receiving payment of principal of and (subject to
Section 307) interest (including Additional Interest) on such Debenture and for
all other purposes whatsoever, whether or not such Debenture be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
The Depositary or its nominee, as the registered owner of the Global
Security, shall be considered the Holder of the Debentures represented by the
Global Security for all purposes under this Indenture and the Debentures, and
owners of beneficial interests in the Global Security shall not be entitled to
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have any of the individual Debentures represented by the Global Debenture
registered in their names, shall not receive nor be entitled to receive physical
delivery of any such Debentures in definitive form and shall not be considered
the Holders thereof under this Indenture. Accordingly, any such owner's
beneficial interest in the Global Security shall be shown only on, and the
transfer of such interest shall be effected only through, records maintained by
the Depositary or its nominee. The Debenture Registrar shall be entitled to deal
with the Depositary for all purposes of this Indenture relating to the Global
Securities as the sole Holder of Global Securities and shall have no obligations
to the owners thereof. Neither the Property Trustee nor the Debenture Registrar
shall have any liability in respect of any transfers effected by the Depositary.
The rights of owners of beneficial interests in the Global Security shall
be exercised only through the Depositary and shall be limited to those
established by law and agreements between such owners and the Depositary.
Neither the Depositary nor its nominee will consent or vote with respect to the
Debentures. Under its usual procedures, the Depositary or its nominee would mail
an Omnibus Proxy to the Company as soon as possible after the relevant record
date. The Omnibus Proxy assigns the consenting or voting rights of the
Depositary or its nominee to those Holders, identified in a listing attached to
such Omnibus Proxy, to whose accounts the Debentures are credited on such record
date.
SECTION 309. CANCELLATION.
All Debentures surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and any such Debentures and Debentures surrendered
directly to the Trustee for any such purpose shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Debentures previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Debentures so delivered
shall be promptly canceled by the Trustee. No Debentures shall be authenticated
in lieu of or in exchange for any Debentures canceled as provided in this
Section, except as expressly permitted by this Indenture. All canceled
Debentures held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310. COMPUTATION OF INTEREST.
Interest on the Debentures payable for any full quarter shall be computed
on the basis of a 360-day year of twelve 30-day months and, for any period
shorter than a full monthly period, shall be computed on the basis of the actual
number of days elapsed in such period.
SECTION 311. RIGHT OF SET-OFF.
Notwithstanding anything to the contrary in the Indenture, the Company
shall have the right to set-off any payment it is otherwise required to make
hereunder with respect to any Debenture and to the extent the Company has
theretofore made, or is concurrently on the date of such payment making, a
payment under the Parent Guarantee or under Section 508 hereof.
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SECTION 312. AGREED TAX TREATMENT.
Each Debenture issued hereunder shall provide that the Company and, by its
acceptance of a Debenture or a beneficial interest therein, the Holder of, and
any Person that acquires a beneficial interest in, such Debenture agree that for
United States federal, state and local tax purposes it is intended that such
Debenture constitute indebtedness.
SECTION 313. CUSIP NUMBERS.
The Company in issuing the Debentures may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Debentures or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Debentures, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall, upon Company Request, cease to be of further effect
and the Company will be deemed to have satisfied and discharged this Indenture
(except as to any surviving rights of registration of transfer or exchange of
Debentures herein expressly provided for and as otherwise provided in this
Section 401) and the Trustee, on written demand of and at the expense of the
Company, shall execute instruments supplied by the Company acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Debentures theretofore authenticated and delivered (other
than (i) Debentures which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section
306 and (ii) Debentures for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Debentures not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year of the date of deposit, and the Company,
in the case of (i) or (ii) above, has deposited or
caused to be deposited with the Trustee cash or cash
equivalents or Government Obligations, as trust funds in
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trust for the purpose, an amount sufficient to pay and
discharge the entire indebtedness on such Debentures not
theretofore delivered to the Trustee for cancellation,
for principal and interest (including Additional
Interest) to the date of such deposit (in the case of
Debentures which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be
and the Company has delivered to The Trust an Opinion of
Counsel as set forth in Section 403(d)(i);
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that
all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authentication Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 or money or Government
Obligations deposited with the Trustee pursuant to Section 403, or received by
the Trustee in respect of Government Obligations deposited with the Trustee,
pursuant to Section 403, shall be held in trust and applied by the Trustee, in
accordance with the provisions of the Debentures and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest (including
any Additional Interest) for the payment of which such money or obligations have
been deposited with or received by the Trustee.
SECTION 403. LEGAL AND COVENANT DEFEASANCE.
(a) On and after the date the Company shall have fulfilled the
conditions of Section 403(c), it shall be deemed to have paid and
discharged the entire Indebtedness represented by any Debentures, or
any portion of the principal amount thereof, and satisfied its
obligations under this Indenture with respect thereto (hereinafter,
"Legal Defeasance"). Such Debentures shall thereafter be deemed to
be "Outstanding" solely for the purposes of Section 402 hereof and
the following provisions of this Indenture shall survive with
respect thereto: (i) the rights of Holders of such Debentures to
receive, solely from the trust fund described in Section 403(c),
payments in respect of the principal of, premium, if any, and
interest on such Debentures when such payments are due, or on the
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redemption date, as the case may be, and (ii) the obligations of the
Company and the Trustee with respect to such Debentures under
Sections 304, 305, 306, 1204, 1002, 1003, 607 and 614 and this
Article Four. The Company may elect to effect a Legal Defeasance
under this Section 403(a) notwithstanding the prior election to
effect a Covenant Defeasance under Section 403(b) with respect to
Debentures or portions thereof.
(b) The Company shall be released from its obligations under the
covenants contained in Sections 1004, 1005 and, 1006 and Article
Eight with respect to any Debentures or any portion of the principal
amount thereof, on and after the date the conditions in Section
403(c) are satisfied (hereinafter, "Covenant Defeasance"). Such
Debentures or portions thereof shall thereafter be deemed not
"Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof)
in connection with such covenants, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. In the event of a
Covenant Defeasance, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by
reason of any reference in any such covenant to any other provision
herein or in any other document and such omission to comply shall
not constitute a Default or an Event of Default under Section 501(3)
with respect to such Debentures or portions thereof, but, except as
specified above, the remainder of this Indenture and such Debentures
or portions thereof shall continue to be in full force and effect.
(c) The following shall be the conditions to any defeasance under this
Section 403:
(i) there shall have been irrevocably deposited with the Trustee,
in trust: (1) money in an amount which shall be sufficient or
(2) Government Obligations, which shall not contain provisions
permitting the redemption or other prepayment thereof at the
option of the issuer thereof, the principal of and the
interest on which when due, without any regard to reinvestment
thereof will provide moneys which, together with the money, if
any, deposited with or held by the Trustee, shall be
sufficient, or (3) a combination of (1) or (2) which shall be
sufficient, to pay when due the principal and interest, if
any, due and to become due on such Debentures or portions
thereof; provided, however, that (a) in the case of the
provision for payment or redemption of less than all the
Debentures, such Debentures or portions thereof shall have
been selected by the Debenture Registrar as provided herein
and, in the case of a redemption, the notice requisite to the
validity of such redemption shall have been given or
irrevocable authority shall have been given by the Company to
the Trustee to give such notice, under arrangements
satisfactory to the Trustee and (b) such money or the proceeds
of such Government Obligations shall either (i) have been on
deposit with the Trustee for a period of at least 90 days, or
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(ii) the Trustee shall have received an Opinion of Counsel
reasonably satisfactory in form to the Trustee to the effect
that payments to Holders with such moneys as proceeds are not
recoverable as a preference under any applicable United States
federal or state law relating to bankruptcy, insolvency,
receivership, winding-up, liquidation, reorganization or
relief of debtors;
(ii) if such deposit shall have been made prior to the Maturity of
such Debentures, the Company shall have delivered to the
Trustee a Company Order stating that the money and Government
Obligations deposited with the Trustee in accordance with this
Section shall be held by the Trustee, in trust, as provided in
Section 402;
(iii) if Government Obligations shall have been deposited with the
Trustee, the Company shall have delivered to the Trustee an
opinion of an independent public accountant of nationally
recognized standing, selected by the Company, to the effect
that the requirements set forth in clause (i) above have been
satisfied;
(iv) the Company shall have delivered to the Trustee an Opinion of
Counsel in the form described in Section 403(d); and
(v) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein relating to either the Legal
Defeasance under Section 403(a) or the Covenant Defeasance
under Section 403(b), as the case may be, have been complied
with.
(d)
(i) In the case of Legal Defeasance under Section 403(a), the
Opinion of Counsel referred to in Section 403(c) shall be in a
form reasonably satisfactory to the Trustee and shall be (a)
accompanied by a ruling of the Internal Revenue Service issued
to the Company, or (b) based on a change in law or regulation
occurring after the date hereof, to the effect that the
Holders will not realize income, gain or loss for federal
income tax purposes as a result of such Legal Defeasance but
will realize income, gain or loss on the Debentures, including
payments of interest thereon, in the same amounts and in the
same manner and at the same time as would have been the case
if such Legal Defeasance had not occurred; and
(ii) In the case of Covenant Defeasance under Section 403(b), the
Opinion of Counsel referred to in Section 403(c) shall be in a
form reasonably satisfactory to the Trustee and to the effect
that the Holders will not realize income, gain or loss for
federal income tax purposes as a result of such Covenant
Defeasance but will realize income, gain or loss on the
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Debentures, including payments of interest thereon, in the
same manner and at the same times as would have been the case
if such Covenant Defeasance had not occurred.
(e) In the event that the Company effects a Legal Defeasance, upon
receipt by the Trustee of money or Government Obligations, or both,
in accordance with Section 403(c), together with the documents
required by such paragraph, the Trustee shall, upon receipt of a
Company Request, acknowledge in writing that the Debentures or
portions thereof with respect to which such deposit was made are
deemed to have been paid for all purposes of this Indenture and that
the entire indebtedness of the Company in respect thereof is deemed
to have been satisfied and discharged.
(f) If payment of less than all of the Debentures is to be provided for
in the manner and with the effect provided in this Section, the
Debenture Registrar shall select such Debentures, or portions of
principal amount thereof in the manner specified by Section 1203.
(g) In the event that Debentures which shall be deemed to have been paid
as a result of a Legal Defeasance (or with respect to which a
Covenant Defeasance has been effected) do not mature and are not to
be redeemed within the 60-day period commencing with the date of the
deposit with the Trustee of moneys or Government Obligations, the
Company shall, as promptly as practicable, give a notice, in the
same manner as a notice of redemption with respect to such
Debentures, to the Holders of such Debentures to the effect that
such deposit has been made and the effect thereof.
(h) The Company shall pay, and shall indemnify the Trustee and each
Holder of Debentures which are deemed to have been paid as provided
in this Section against any tax, fee or other charge imposed on or
assessed against the Government Obligations deposited with the
Trustee or the principal or interest received by the Trustee in
respect of such Government Obligations.
(i) Anything herein to the contrary notwithstanding, if, at any
time after a Legal Defeasance or a Covenant Defeasance is
effected pursuant to this Section (without regard to the
provisions of this paragraph (i)), the Trustee shall be
required to return the money or Government Obligations, or
combination thereof, deposited with it to the Company or its
representative under any applicable federal or state
bankruptcy, insolvency or other similar law, the indebtedness
of the Company in respect of such Debentures shall thereupon
be deemed retroactively not to have been satisfied and
discharged, as aforesaid, and to remain Outstanding, or, as
the case may be, the obligations under the above-mentioned
covenants in respect of such Debentures shall thereupon be
deemed retroactively not to have been released.
ARTICLE FIVE
Remedies
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SECTION 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein, means any one of the following
events that has occurred and is continuing (whatever the reason for such Event
of Default and whether it shall be occasioned by the provisions of Article
Eleven or be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) failure for 30 days to pay any interest on the Debentures (including
Additional Interest, if any) when due (subject to the deferral of
any due date in the case of an Extension Period); or
(2) failure to pay any principal on the Debentures when due whether at
Stated Maturity, upon redemption, by declaration or otherwise;
provided, however, that a valid extension of maturity of such
Debentures in accordance with the terms of this Indenture shall not
constitute a default in the payment of principal; or
(3) failure to observe or perform in any material respect any other
covenant herein for 90 days after written notice requiring the
Company to remedy the same to the Company from the Trustee or to the
Company and the Trustee from the holders of at least 25% in
aggregate principal amount of the Outstanding Debentures; or
(4) entry by a court having jurisdiction in the premises of (A) a decree
or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any
applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of substantially all of the
property of the Company, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for
a period of 60 consecutive days; or
(5) (A) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or (B) the
consent by the Company or to the entry of a decree or order for
relief in respect of itself in an involuntary case or proceeding
under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against the Company, or
(C) the filing by the Company of a petition or answer or consent
seeking reorganization or relief under any applicable federal or
state law, or (D) the consent by the Company to the filing of such
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petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or of all or substantially all
of the property of the Company, or (E) the making by the Company of
an assignment for the benefit of creditors, (F) the taking of
corporate action by the Company in furtherance of any such action;
or
(6) The Trust shall have voluntarily or involuntarily dissolved,
wound-up its business or otherwise terminated its existence, except
in connection with (A) the distribution of Debentures to holders of
Trust Securities in liquidation of their interests in the Trust; (B)
the redemption of all of the outstanding Trust Securities of the
Trust; or (c) certain mergers, consolidations or amalgamations, each
as permitted by the Trust Agreement.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in
Section 501(4), 501(5) or 501(6)) 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 Debentures shall have the right to declare the principal (or
specific portion thereof) of and the interest on all the Debentures, and any
other amount payable under the Indenture, to be due and payable immediately, by
a notice in writing to the Company (and to the Trustee if given by Holders)
provided, that if upon an Event of Default, the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Outstanding Debentures fail
to declare such amounts to be immediately due and payable, the holders of at
least 25% in aggregate Liquidation Amount of Capital Securities then Outstanding
shall have such right, by a notice in writing to the Company and the Trustee;
and upon any such declaration such principal amount (or specified portion
thereof) of and the accrued interest (including any Additional Interest) on all
the Debentures shall become immediately due and payable. If an Event of Default
specified in Section 501(4), 501(5) or 501(6) occurs, the principal amount of
all the Debentures shall automatically, and without any declaration or other
action on the part of the Trustee or any Holder, become immediately due and
payable. Payment of principal and interest (including any Additional Interest)
on such Debentures shall remain subordinated to the extent provided in Article
Eleven.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article, the Holders of a majority
in aggregate principal amount of the Outstanding Debentures, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay:
(A) all overdue installments of interest (including any Additional
Interest) on all Debentures,
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(B) the principal of any Debentures which have become due
otherwise than by such declaration of acceleration and
interest and Additional Interest, if any, thereon at the rate
borne by the Debentures, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
(2) all Events of Default, other than the non-payment of the principal
of Debentures which has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
If the Holders of a majority in principal amount of the outstanding
Debentures fail to annul such declaration and waive such default, the holders of
a majority in aggregate Liquidation Amount of the Capital Securities may rescind
and annul such declaration and its consequences, subject to the foregoing
conditions.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, with respect to Debentures
all or part of which are represented by a Global Security, a record date shall
be established for determining Holders of Outstanding Securities entitled to
join in such notice, which record date shall be at the close of business on the
day the Trustee receives such notice. The Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to join in
such notice, whether or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 502.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any installment of interest
(including any Additional Interest) on any Debenture when such
interest becomes due and payable and such default continues for a
period of 30 days, or
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(2) default is made in the payment of the principal of any Debenture at
the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Debentures, the whole amount then due and payable
on such Debentures for principal and interest (including any Additional
Interest), and, in addition thereto, all amounts owing the Trustee under Section
607. Payment of principal and interest (including any Additional Interest) on
such Debentures shall remain subordinated to the extent provided in Article
Eleven notwithstanding that such amount shall become immediately due and payable
as herein provided.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Debentures and collect the
monies adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Debentures, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Debentures or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Debentures
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal (and premium, if any) or
interest (including Additional Interest)) shall be entitled and empowered, by
intervention in such proceeding or otherwise, (i) to file and prove a claim for
the whole amount of principal and interest (including any Additional Interest)
owing and unpaid in respect to the Debentures and to file such other papers or
documents as may be necessary or advisable and to take any and all actions as
are authorized under the Trust Indenture Act in order to have the claims of the
Holders and any predecessor to the Trustee under Section 607 allowed in any such
judicial proceedings, and (ii) in particular, the Trustee shall be authorized to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same in accordance with Section 506; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee for distribution in accordance with
Section 506 and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it and any predecessor Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debentures
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBENTURES.
All rights of action and claims under this Indenture or the Debentures may
be prosecuted and enforced by the Trustee without the possession of any of the
Debentures or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, subject to
Article Eleven and after provision for payment of all the amounts owing the
Trustee and any predecessor Trustee under Section 607, its agents and counsel,
be for the ratable benefit of the Holders of the Debentures in respect of which
such judgment has been recovered.
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SECTION 506. APPLICATION OF MONEY COLLECTED.
Subject to Article Eleven, any money or property collected or to be
applied by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money or property on account of principal or interest
(including any Additional Interest), upon presentation of the Debentures and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor
Trustee under Section 607; and
SECOND: To the payment of the amounts then due and unpaid for principal
and interest (including any Additional Interest) on the Debentures in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Debentures for principal and interest (including any Additional
Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Debenture shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver, assignee, trustee, liquidator, sequestrator or other
similar official or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Debentures shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the Outstanding
Debentures;
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it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all the Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Debenture shall have the right, which is absolute and unconditional, to receive
payment of the principal of and (subject to Section 307) interest (including any
Additional Interest) on such Debenture on the respective Stated Maturities
expressed in such Debenture (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Holder. Any holder of
the Capital Securities shall have the right, upon the occurrence of an Event of
Default described in Section 501(1) or 501(2) hereof, to institute a suit
directly against the Company for enforcement of payment to such holder of
principal of and (subject to Section 307) interest (including any Additional
Interest) on the Debentures having a principal amount equal to the aggregate
Liquidation Amount of the Capital Securities held by such holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee, or any Holder or any holder of Capital Securities has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee, such Holder or such holder of Capital
Securities, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee, the Holders and the holders of Capital
Securities shall be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Trustee, such
Holder and such holder of Capital Securities shall continue as though no such
proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debentures in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
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Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debentures in the last paragraph of Section
306, no delay or omission of the Trustee or of any Holder of any Debenture or
any holder of any Capital Security to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders and the
right and remedy given to the holders of Capital Securities by Section 508 may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders or the holders of Capital Securities, as the case may
be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in aggregate principal amount of the Outstanding
Debentures shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 601, the Trustee shall have the
right to decline to follow such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee,
determine that the proceeding so directed would be unjustly
prejudicial to the Holders not joining in any such direction or
would involve the Trustee in personal liability.
Upon receipt by the Trustee of any written notice directing the time, method or
place of conducting any such proceeding or exercising any such trust or power,
with respect to Debentures all or part of which are represented by a Global
Security, a record date shall be established for determining Holders of
Outstanding Debentures entitled to join in such notice, which record date shall
be at the close of business on the day the Trustee receives such notice. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such notice, whether or not such Holders
remain Holders after such record date; provided, that, unless the Holders of a
majority in principal amount of the Outstanding Debentures shall have joined in
such notice prior to the day which is 90 days after such record date, such
notice shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or a
proxy of a Holder, from giving, after expiration of such 90-day period, a new
notice identical to a notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section.
SECTION 513. WAIVER OF PAST DEFAULTS.
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Subject to Sections 902 and 1010 hereof, the Holders of not less than a
majority in aggregate principal amount of the Outstanding Debentures affected
thereby may waive any past default hereunder and its consequences, except a
default: (1) in the payment of the principal or interest (including any
Additional Interest) on any Debenture (unless such default has been cured and a
sum sufficient to pay all matured installments of interest (including any
Additional Interest) and principal due otherwise than by acceleration has been
deposited with the Trustee); or (2) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Debenture affected. If the Holders of such
Debentures fail to waive such default, the holders of not less than a majority
in aggregate Liquidation Amount of the Capital Securities shall have such right.
Any such waiver shall be deemed to be on behalf of the Holders of all the
Debentures or, in the case of a waiver by holders of Capital Securities, by all
holders of Capital Securities.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Debenture by
his acceptance thereof shall be deemed to have agreed that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs against any such party litigant including
reasonable attorneys' fees, in the manner and to the extent provided in the
Trust Indenture Act having due regard to the merits and good faith of the claims
or defenses made by such party litigants; but the provisions of this Section
shall not apply to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 10% in
aggregate principal amount of the Outstanding Debentures, or to any suit
instituted by any Holder for the enforcement of the payment of the principal or
interest (including any Additional Interest) on any Debenture on or after the
respective Stated Maturities expressed in such Debenture.
SECTION 515. WAIVER OF USURY, STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE SIX
The Trustee
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as provided by
this Indenture and the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any
provisions hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
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(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance
with the direction of Holders pursuant to Section 512 relating
to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee under this Indenture with
respect to the Debentures.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if there shall be reasonable grounds
for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee charged with the administration of this Indenture of the occurrence of
any default hereunder, the Trustee shall transmit by mail to all Holders of
Debentures, as their names and addresses appear in the Debentures Register,
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; provided, however, that except in the case of a
default in the payment of the principal of interest (including any Additional
Interest) on any Debenture, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interests of the
Holders of Debentures; provided, further, that in the case of any default of the
character specified in Section 501(3), no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default. For purposes of this Section,
the Trustee shall be deemed to have actual knowledge of a default if it has
received written notice of such default in the manner contemplated by Section
105.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, security, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
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(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced
by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in
the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel of its choice and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, indenture, Debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBENTURES.
The recitals contained herein and in the Debentures, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debentures. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of the Debentures or the proceeds thereof.
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SECTION 605. MAY HOLD DEBENTURES.
The Trustee, any Authenticating Agent, any Paying Agent, any Debenture
Registrar, or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Debentures and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Debenture
Registrar, or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
SECTION 607. COMPENSATION; REIMBURSEMENT; AND INDEMNITY.
The Company agrees
(1) to pay to the Trustee from time to time such reasonable compensation
as the Company and the Trustee shall from time to time agree in
writing for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation
and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
and all loss, damage, claim, liability, action, suit, cost or
expense (including the reasonable compensation and the expenses and
disbursements of its agents and counsel) of any kind and nature
whatsoever incurred without negligence or bad faith, arising out of
or in connection with the acceptance or administration of this trust
or the performance of its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
In addition, the Company hereby agrees to pay all amounts owing under
Section 8.06 of the Trust Agreement and to enter into and perform an Expense
Agreement substantially in the Form of Exhibit B to this Indenture. To secure
the Company's payment obligations under this Section 607, the Trustee shall have
a lien against all money or property held or collected by the Trustee, which
lien
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shall be subordinate to the rights of the Debentureholders but prior to the
rights of the Company to any such money or property.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 501(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor statute.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, Section 310(b) the Trust Indenture Act and this Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act (as if such Act were
applicable to this Indenture) to act as such and has a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by
federal or state authority. If such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act (as if such Act were applicable to this
Indenture), the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article. Neither
the Company nor any Person directly or indirectly controlling, controlled by or
under common control with the Company shall serve as Trustee for the Debentures
issued hereunder.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company and the Holders. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
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(c) The Trustee may be removed at any time by Act of the Holders of a
majority in aggregate principal amount of the Outstanding
Debentures, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Debenture for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Debenture for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If the Company fails to appoint a successor
Trustee within thirty (30) days of such resignation, removal, or
incapability, or the occurrence of such vacancy, the retiring
Trustee may, subject to Section 514, petition any court of competent
jurisdiction for the appointment of a successor Trustee. If, within
one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed
by Act of the Holders of a majority in aggregate principal amount of
the Outstanding Debentures delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment, become the successor Trustee and
supersede the successor Trustee appointed by the Company or any
court. If no successor Trustee shall have been so appointed by the
Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of
a Debenture for at least six months may, subject to Section 514, on
behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor
Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all
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Holders in the manner provided in Section 106. Each notice shall
include the name of the successor Trustee and the address of its
Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; provided that, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in this Section.
In case of the appointment hereunder of a successor Trustee, the Company,
the retiring Trustee and each successor Trustee shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee; and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts, and duties of the
retiring Trustee; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
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Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Debentures shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Debentures so authenticated, and in case any
Debentures shall not have been authenticated, any successor to the Trustee may
authenticate such Debentures either in the name of any predecessor Trustee or in
the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Debentures or in this Indenture that the certificate of the Trustee will have.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Debentures), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents which shall be
authorized to act on behalf of the Trustee to authenticate Debentures issued
upon original issue and upon exchange, registration or transfer or partial
redemption thereof, and Debentures so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Debentures by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, or of any State, Territory or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at lease annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which an Authenticating Agent
shall
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be a party, or any corporation succeeding to all or substantially all of the
corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Debentures.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment is made pursuant to this Section, the Debentures may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Debentures referred to in the within mentioned
Indenture.
Dated: ___________________
Wilmington Trust Company,
By:______________________________________
As Authentication Agent
By:______________________________________
Authorized Officer
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ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) quarterly, not later than April 15, July 15, October 15 and January
15 in each year, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of the Debentures
as of such March 31, June 30, September 30 and December 31, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to
the time such list is furnished;
In each case to the extent such information is in the possession or
control of the Company and has not otherwise been received by the Trustee in its
capacity as Debenture Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701
and the names and addresses of Holders received by the Trustee in
its capacity as Debenture Registrar. The Trustee may destroy any
list furnished to it as provided in Section 701 upon receipt of a
new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Debentures, and
the corresponding rights and duties of the Trustee, shall be as
provided by the Trust Indenture Act (as if such Act were applicable
to this Indenture).
(c) Every Holder of Debentures, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names
and addresses of Holders made pursuant to the provisions of the
Trust Indenture Act (as if such Act were applicable to this
Indenture).
SECTION 703. REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act (as if such Act were applicable
to this Indenture) at the times and in the manner provided pursuant
thereto.
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(b) Reports so required to be transmitted at stated intervals of not
more than 12 months shall be transmitted no later than July 15 in
each calendar year, commencing with the first July 15th after the
first issuance of Debentures under this Indenture.
SECTION 704. REPORTS BY COMPANY.
The Company is required to deliver annually to the Trustee a certificate
stating whether or not to the best knowledge of the signers thereof the Company
is in default in the performance, observance or fulfillment of or compliance
with any of the material terms, provisions, covenants and conditions of this
Indenture (without regard to any period of grace or requirement of notice
provided under this Indenture) and, if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge.
The Company shall also file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act. The Company also shall
comply with the other provisions of Trust Indenture Act Section 314(a) (as if
such Act were applicable to this Indenture).
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not without the consent of the holders of the
Outstanding Debentures consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and the Company shall not permit any Person to consolidate with
or merge into the Company or convey, transfer, lease or otherwise dispose of its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by
such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety
shall be a corporation, partnership, trust or other entity, shall be
organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any)
and interest (including any Additional Interest) on all the
Debentures and the performance or observance of every covenant of
this Indenture and the Debentures on the part of the Company to be
performed or observed;
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(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be
continuing;
(3) such consolidation or merger or conveyance, transfer or lease of
properties or assets of the Company is permitted under the Trust
Agreement and the Parent Guarantee and does not give rise to any
breach or violation of, the Trust Agreement or the Parent Guarantee;
and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease complies with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with; and the Trustee, subject to
Section 601, may rely upon such Officers' Certificate and Opinion of
Counsel as conclusive evidence that such transaction complies with
this Section.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company with
or into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein; and in the event of any such
conveyance, transfer or lease, the Company shall be discharged from all
obligations and covenants under this Indenture and the Debentures and may be
dissolved and liquidated.
Such successor Person may cause to be signed, and may issue either in its
own name or in the name of the Company, any or all of the Debentures issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor Person instead
of the Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Debentures which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication pursuant to such provisions and
any Debentures which such successor Person thereafter shall cause to be signed
and delivered to the Trustee on its behalf for the purpose pursuant to such
provisions. All the Debentures so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Debentures theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Debentures has been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form may be made in the Debentures thereafter to be
issued as may be appropriate.
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ARTICLE NINE
Supplemental Indentures
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company
herein and in the Debentures; or
(2) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee or to surrender any right or power herein conferred
upon the Company; or
(3) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon
the Company; or
(4) to add any additional Events of Default; or
(5) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause (5) shall not materially adversely affect
the interests of the Holders of the Debentures or, so long as any of
the Capital Securities shall remain outstanding, the holders of the
Capital Securities; or
(6) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Debentures, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner provisions adversely affecting the rights of the Holders
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Debenture affected
thereby,
(1) except to the extent permitted and subject to the conditions set
forth in Section 301 with respect to the extension of interest
payment period of the Debentures, extend the Stated Maturity of, the
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principal of, or any installment of interest (including any
Additional Interest) on, any Debenture, or reduce the principal
amount thereof or the rate of interest thereon, or change the place
of payment where, or the coin or currency in which, any Debenture or
interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or modify the provisions of this Indenture with
respect to the subordination of the Debentures in a manner adverse
to the Holders, or
(2) reduce the percentage in aggregate principal amount of the
Outstanding Debentures, the consent of the Holders of which is
required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or Section
1007, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding
Debenture affected thereby;
provided, that, so long as any of the Capital Securities remain outstanding, no
such modification shall be made that requires the consent of the holders of the
Debentures, and no termination of this Indenture shall occur, and no waiver of
any Event of Default shall be effective, without the prior consent of the
holders of at least a majority of the aggregate Liquidation Amount of the
Outstanding Capital Securities and that if the consent of the Holder of each
Debenture is required, such modification shall not be effective until each
Holder of Outstanding Debentures has consented thereto.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture, and
that all conditions precedent have been complied with. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
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Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debentures theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN DEBENTURES TO SUPPLEMENTAL INDENTURES.
Debentures authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Company, bear a notation in form approved by the Company as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Debentures so modified as to conform, in the opinion of the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Debentures.
ARTICLE TEN
Covenants; Representations and Warranties
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST.
The Company covenants and agrees for the benefit of the Debentures that it
will duly and punctually pay the principal of (and premium, if any) and interest
(including any Additional Interest) on the Debentures in accordance with the
terms of the Debentures and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in Wilmington, Delaware, an office or agency
where Debentures may be presented or surrendered for payment, where Debentures
may be surrendered for registration of transfer or exchange, and where notices
and demands to or upon the Company in respect of the Debentures and this
Indenture may be served. The Company initially appoints the Trustee, acting
through its Corporate Trust Office, as its agent for said purposes. The Company
will give prompt written notice to the Trustee of any change in the location of
any such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other offices
or agencies (in the United States) where the Debentures may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designations; provided, however, that no such designation or rescission
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shall in any manner relieve the Company of its obligation to maintain an office
or agency in the United States for such purposes. The Company will give prompt
written notice to the Trustee of any such designation and any change in the
location of any such office or agency.
SECTION 1003. MONEY FOR DEBENTURE PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal (and premium, if any) of or interest
(including any Additional Interest), on any of the Debentures, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum sufficient
to pay the principal or interest (including any Additional Interest) so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior
to 10:00 a.m. New York City time on each due date of the principal of or
interest (including any Additional Interest) on any Debentures, deposit with a
Paying Agent a sum sufficient to pay the principal or interest (including any
Additional Interest) so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal (and premium, if any) or
interest (including any Additional Interest), and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its failure so to
act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will (i) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent, (ii) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest (including any Additional
Interest) on Debentures in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided, (iii) give the Trustee notice of any default by the Company (or any
other obligor upon the Debentures) in the making of any payment of principal
(and premium, if any) or interest (including any Additional Interest), and (iv)
at any time during the continuance of any such default by the Company (or any
other obligor upon the Debentures) in the making of any payment of principal
(and premium, if any) or interest, upon written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by the Company or any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or interest (including
any Additional Interest) on any Debenture and remaining unclaimed for two years
after such principal or interest has become due and payable shall (unless
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otherwise required by mandatory provision of applicable escheat or abandoned or
unclaimed property law) be repaid to the Company or (if then held by the
Company) shall (unless otherwise required by mandatory provision of applicable
escheat or abandoned or unclaimed property law) be discharged from such trust
and the Holder of such Debenture shall thereafter look, as a general unsecured
creditor, only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease.
SECTION 1004. STATEMENT BY OFFICERS AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end of
each calendar year of the Company ending after the date hereof, an Officers'
Certificate covering the preceding calendar year, stating whether or not to the
best knowledge of the signers thereof the Company is in default in the
performance, observance or fulfillment of or compliance with any of the terms,
provisions, covenants and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the Company
shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
SECTION 1005. ADDITIONAL SUMS.
If and so long as (i) the Trust is the Holder of all of the Outstanding
Debentures, (ii) a Tax Event shall have occurred and be continuing and (iii) the
Company shall not have redeemed the Debentures pursuant to Section 1201 or
terminated the Trust pursuant to Section 9.02(b) of the Trust Agreement, the
Company shall pay to the Trust (and its permitted successors or assigns under
the Trust Agreement) for so long as the Trust (or its permitted successor or
assignee) is the registered holder of any Debentures, such additional amounts as
may be necessary in order that the amount of distributions (including any
Additional Amounts (as defined in the Trust Agreement)) then due and payable by
the Trust on the Capital Securities and Common Securities that at any time
remain outstanding in accordance with the terms thereof shall not be reduced as
a result of any Additional Taxes arising from such Tax Event (the "Additional
Sums"). Whenever in this Indenture or the Debentures there is a reference in any
context to the payment of principal of or interest on the Debentures, such
mention shall be deemed to include mention of the payments of the Additional
Sums provided for in this paragraph to the extent that, in such context,
Additional Sums are, were or would be payable in respect thereof pursuant to the
provisions of this paragraph and express mention of the payment of Additional
Sums (if applicable) in any provisions hereof shall not be construed as
excluding Additional Sums in those provisions hereof where such express mention
is not made, provided, however, that the deferral of interest payments pursuant
to Section 301 or the Debentures shall not defer the payment of any Additional
Sums that may be due and payable.
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SECTION 1006. ADDITIONAL COVENANTS.
The Company covenants and agrees with each Holder of Debentures that if at
any time (a) there shall have occurred and be continuing any event that, with
the giving of notice or the lapse of time or both, would constitute an Event of
Default hereunder and in respect of which the Company shall not have taken
reasonable steps to cure, (b) the Company shall be in default with respect to
its payment of any obligations under the Parent Guarantee or (c) the Company
shall have given notice of its selection of an Extension Period as provided
herein and shall not have rescinded such notice and such Extension Period, or
any extension thereof, shall be continuing, then it shall not, and it will not
permit any Subsidiary of the Company to, (1) 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, (2) make any
payment of principal, interest or on or repay, repurchase or redeem any debt
securities that rank pari passu with or junior to the Debentures or make any
guarantee payments with respect to any guarantee by the Company of the debt
securities of any Subsidiary of the Company that by their terms rank pari passu
or junior in interest to the Debentures, (3) sell, lease, license, transfer or
otherwise dispose of any asset or interest therein or (4) with respect to the
Company, make any capital contributions or similar advances to its Subsidiaries;
provided, however, that the foregoing restrictions shall not prevent (A) any
such transaction (other than transactions described in clause (4) above) in the
ordinary course of business or in immaterial amounts, (B) a reorganization of
Subsidiaries of the Company, so long as the Company's percentage ownership
interest in such Subsidiaries does not decrease, (C) dividends or distributions
in Common Stock of the Company, (D) payments under the Parent Guarantee or any
similar guarantee by the Company with respect any other securities of any of its
Subsidiaries; provided that the proceeds of the issuance of such securities were
used to purchase debt securities of the Company that rank pari passu with or
junior to this Debenture and (E) purchases of Common Stock of the Company
related to the issuance of Common Stock of the Company under any of the
Company's benefit plans for its directors, officers or employees.
The Company also covenants, for so long as Capital Debentures remain
outstanding, (i) to maintain directly or indirectly 100% ownership of the Common
Securities of the Trust; provided, however, that any permitted successor of the
Company hereunder may succeed to the Company's ownership of such Common
Securities, (ii) not to voluntarily dissolve, wind-up or liquidate the Trust,
except (a) in connection with a distribution of the Debentures to the holders of
Capital Securities in liquidation of the Trust or (b) in connection with certain
mergers, consolidations or amalgamations permitted by the Trust Agreement, and
(iii) to use its reasonable efforts, consistent with the terms and provisions of
the Trust Agreement, to cause the Trust to remain a statutory business trust and
to be classified as a grantor trust and not as an association taxable as a
corporation for United States federal income tax purposes, except in connection
with a distribution of the Debentures to the holders of Capital Securities in
liquidation of the Trust.
SECTION 1007. WAIVER OF CERTAIN COVENANTS.
Except as otherwise specified as contemplated by Section 301 for
Debentures, the Company may, with respect to the Debentures, omit in any
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particular instance to comply with any term, provision or condition set forth in
any covenant provided pursuant to Section 901(2) for the benefit of the Holders
if before or after the time for such compliance the Holders of at least a
majority in aggregate principal amount of the Outstanding Debentures shall, by
Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the extent
so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
Subordination of Debentures
SECTION 1101. DEBENTURES SUBORDINATE TO SENIOR DEBT.
The Company covenants and agrees, and each Holder of a Debenture, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article (subject to Article Four), the
payment of the principal of (and premium, if any) and interest (including any
Additional Interest) on each and all of the Debentures are hereby expressly made
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 Debt.
The Trustee and the Holders shall take such action (including, without
limitation, the delivery of this Indenture to an agent for the holders of Senior
Debt or consent to the filing of a financing statement with respect hereto) as
may, in the opinion of counsel designated by the holders of a majority in
principal amount of the Senior Debt at the time outstanding, be necessary or
appropriate to assure the effectiveness of the subordination effected by these
provisions.
The provisions of Sections 1102, 1103 and 1104 hereof shall not impair any
rights, interests, remedies or powers of any secured creditor of the Company in
respect of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Debentures or ranking junior to the Debentures, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Debentures or ranking junior to the Debentures.
SECTION 1102. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the case of the pendency of (a) any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company, its creditors or its
property, (b) any proceeding for the liquidation, dissolution or other winding
up of the Company, voluntary or involuntary, whether or not involving insolvency
or bankruptcy proceedings, (c) any assignment by the Company for the benefit of
creditors or (d) any other marshaling of the assets of the Company, (each such
event, if any, herein sometimes referred to as a "Proceeding"), then the holders
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of Senior Debt shall be entitled to receive payment in full of principal of (and
premium, if any) and interest, if any, on such Senior Debt (including any
interest thereon accruing after the commencement of any such Proceeding), or
provision shall be made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt, before the
Holders of the Debentures are entitled to receive or retain any payment or
distribution of any kind or character, whether in cash, property or securities
(including any payment or distribution which may be payable or deliverable by
reason of the payment of any other Debt of the Company (including the
Debentures) subordinated to the payment of the Debentures, such payment or
distribution being hereinafter referred to as a "Junior Subordinated Payment"),
on account of principal of or interest (including any Additional Interest) on
the Debentures or on account of the purchase or other acquisition of Debentures
by the Company or any Subsidiary and to that end the holders of Senior Debt
shall be entitled to receive, for application to the payment thereof, any
payment or distribution of any kind or character, whether in cash, property or
securities, including any Junior Subordinated Payment, which may be payable or
deliverable in respect of the Debentures in any such Proceeding.
In the event of any Proceeding, after payment in full of all sums owing
with respect to Senior Debt, the Holders of the Debentures, together with the
holders of any obligations of the Company ranking on a parity with the
Debentures, shall be entitled to be paid from the remaining assets of the
Company the amounts at the time due and owing on account of unpaid principal of
and interest on the Debentures and such other obligations before any payment or
other distribution, whether in cash, property or otherwise, shall be made on
account of any capital stock or any obligations of the Company ranking junior to
the Debentures and such other obligations.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Debenture shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any Junior Subordinated
Payment, before all Senior Debt is paid in full or payment thereof is provided
for in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, then and in such event such payment or distribution
shall be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other Person making
payment or distribution of assets of the Company for application to the payment
of all Senior Debt remaining unpaid, to the extent necessary to pay all Senior
Debt in full, after giving effect to any concurrent payment or distribution to
or for the holders of Senior Debt.
For purposes of this Article only, the words "any payment or distribution
of any kind or character, whether in cash, property or securities" shall not be
deemed to include shares of stock of the Company as reorganized or readjusted,
or securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment which securities are subordinated in right of
payment to all then outstanding Senior Debt at least to the same extent as the
Debentures are so subordinated as provided in this Article. The consolidation of
the Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the sale of all or
substantially all of its properties and assets as an entirety to another Person
upon the terms and conditions set forth in Article Eight shall not be deemed a
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Proceeding for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by sale such properties and assets as an entirety, as the case may be, shall, as
a part of such consolidation, merger, or sale comply with the conditions set
forth in Article Eight.
SECTION 1103. PRIOR PAYMENT TO SENIOR DEBT UPON ACCELERATION OF DEBENTURES.
In the event that any Debentures are declared due and payable before their
Stated Maturity, then and in such event the holders of the Senior Debt
outstanding at the time such Debentures so become due and payable shall to the
extent required under the terms of such Senior Debt be entitled to receive
payment in full of all amounts due on or in respect of such Senior Debt, or
provision shall be made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt, before the
Holders of the Debentures are entitled to receive any payment or distribution of
any kind or character, whether in cash, properties or securities (including any
Junior Subordinated Payment) by the Company on account of the principal of or
interest (including any Additional Interest) on the Debentures or on account of
the purchase or other acquisition of Debentures by the Company or any
Subsidiary.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Debenture prohibited by the
foregoing provisions of this Section, then and in such event such payment shall
be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect
to which Section 1102 would be applicable.
SECTION 1104. NO PAYMENT WHEN SENIOR DEBT IN DEFAULT.
In the event and during the continuation of any default in the payment of
principal of or interest on any Senior Debt, when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or by declaration
of acceleration or otherwise, then, upon written notice of such default to the
Company by the holders of Senior Debt or any trustee therefor, unless and until
such event of default shall have been cured or waived or shall have ceased to
exist, then no payment or distribution of any kind or character, whether in
cash, properties or securities (including any Junior Subordinated Payment) shall
be made by the Company on account of principal of or interest (including any
Additional Interest), if any, on the Debentures or on account of the purchase or
other acquisition of Debentures by the Company or any Subsidiary.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Debenture prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect
to which Section 1102 would be applicable.
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SECTION 1105. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Debentures shall prevent (a) the Company, at any time except during the
pendency of any Proceeding referred to in Section 1102 or under the conditions
described in Sections 1103 and 1104, from making payments at any time of
principal of or interest on the Debentures, or (b) the application by the
Trustee of any money or Government Obligations deposited with it hereunder to
the payment of or on account of the principal of or interest (including any
Additional Interest) on the Debentures or the retention of such payment by the
Holders, if, at the time of such application by the Trustee, it did not have
knowledge that such payment would have been prohibited by the provisions of this
Article.
SECTION 1106. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT.
Subject to the payment in full of all amounts due or to become due on all
Senior Debt, or the provision for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of the Senior Debt, the
Holders of the Debentures shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Debt pursuant to the provisions
of this Article (equally and ratably with the holders of all indebtedness of the
Company which by its express terms is subordinated to Senior Debt of the Company
to substantially the same extent as the Debentures are subordinated to the
Senior Debt and is entitled to like rights of subrogation by reason of any
payments or distributions made to holders of such Senior Debt) to the rights of
the holders of such Senior Debt to receive payments and distributions of cash,
property and securities applicable to the Senior Debt until the principal of and
interest on the Debentures shall be paid in full. For purposes of such
subrogation or assignment, no payments or distributions to the holders of the
Senior Debt of any cash, property or securities to which the Holders of the
Debentures or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to the
holders of Senior Debt by Holders of the Debentures or the Trustee, shall, as
among the Company, its creditors other than holders of Senior Debt, and the
Holders of the Debentures, be deemed to be a payment or distribution by the
Company to or on account of the Senior Debt.
SECTION 1107. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Debentures on the one hand
and the holders of Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Debentures is intended to or
shall (a) impair, as between the Company and the Holders of the Debentures, the
obligations of the Company, which are absolute and unconditional, to pay to the
Holders of the Debentures the principal of and interest (including any
Additional Interest) on the Debentures as and when the same shall become due and
payable in accordance with their terms; or (b) affect the relative rights
against the Company of the Holders of the Debentures and creditors of the
Company other than their rights in relation to the holders of Senior Debt; or
(c) prevent the Trustee or the Holder of any Debenture (or to the extent
expressly provided herein, the holder of any Capital Security) from exercising
all remedies
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otherwise permitted by applicable law upon default under this Indenture
including, without limitation, filing and voting claims in any Proceeding,
subject to the rights, if any, under this Article of the holders of Senior Debt
to receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.
SECTION 1108. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Debenture by his or her acceptance thereof authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purpose.
SECTION 1109. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior Debt may, at any time and from to time, without
the consent of or notice to the Trustee or the Holders of the Debentures,
without incurring responsibility to such Holders of the Debentures and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of such Holders of the Debentures to the holders of Senior
Debt, do any one or more of the following: (i) change the manner, place or terms
of payment or extend the time of payment of, or renew or alter, Senior Debt, or
otherwise amend or supplement in any manner Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding;
(ii) sell, exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Debt; (iii) release any Person liable in
any manner for the collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 1110. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company that would prohibit the making of any payment to or by the
Trustee in respect of the Debentures. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment to or by the Trustee in respect of the Debentures, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee, agent or representative
therefor (whether or not the facts contained in such notice are true); provided,
however, that if the Trustee shall not have received the notice provided for in
this Section at least two Business Days prior to the date upon which by the
terms hereof any monies may become payable for any purpose (including, without
limitation, the payment of the principal of or interest (including any
Additional
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Interest) on any Debenture), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
monies and to apply the same to the purposes for which they were received, and
shall not be affected by any notice to the contrary which may be received by it
within two Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing such
Person to be a holder of Senior Debt (or a trustee or attorney-in-fact therefor)
to establish that such notice has been given by a holder of Senior Debt (or a
trustee or attorney-in-fact therefor). In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Debt to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
SECTION 1111. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Article Six, and the
Holders of the Debentures shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Debentures, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior Debt and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 1112. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt and shall not be
liable to any such holders if it shall in good faith mistakenly pay over or
distribute to Holders of Debentures or to the Company or to any other Person
cash, property or securities to which any holders of Senior Debt shall be
entitled by virtue of this Article or otherwise.
SECTION 1113. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT; PRESERVATION OF
TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article in respect of any Senior Debt which may at any time
held by it, to the same extent as any other holder of Senior Debt, and nothing
in this Indenture shall deprive the Trustee of any of its rights as such holder.
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SECTION 1114. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee.
SECTION 1115. CERTAIN CONVERSIONS OR EXCHANGES DEEMED PAYMENT.
For the purposes of this Article only, (a) the issuance and delivery of
junior securities upon exchange of Debentures shall not be deemed to constitute
a payment or distribution on account of the principal of or interest (including
any Additional Interest) on Debentures or on account of the purchase or other
acquisition of Debentures, and (b) the payment, issuance or delivery of cash,
property or securities (other than junior securities) upon exchange of a
Debenture shall be deemed to constitute payment on account of the principal of
such security. For the purposes of this Section, the term "junior securities"
means (i) shares of any stock of any class of the Company and (ii) securities of
the Company which are subordinated in right of payment to all Senior Debt which
may be outstanding at the time of issuance or delivery of such securities to
substantially the same extent as, or to a greater extent than, the Debentures
are so subordinated as provided in this Article.
ARTICLE TWELVE
Redemption of Debentures
SECTION 1201. APPLICABILITY OF THIS ARTICLE.
Redemption of Debentures as permitted or required by any form of Debenture
issued pursuant to this Indenture shall be made in accordance with such form of
Debenture and this Article; provided, however, that if any provision of any such
form of Debenture shall conflict with any provision of this Article, the
provision of such form of Debenture shall govern. Except as otherwise set forth
in the form of Debenture, each Debenture shall be subject to partial redemption
only in the amount of $1,000, or integral multiples thereof.
SECTION 1202. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Debentures shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company, the Company shall, at least 45 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
of Debentures to be redeemed provided that, for so long as the Debentures are
held by the Trust, such notice shall be given not less than 90 nor more than 180
days prior to such Redemption Date (unless a shorter notice shall be
satisfactory to the Property Trustee). In the case of any redemption of
Debentures prior to the expiration of any restriction on such redemption
provided in the terms of such Debentures, the Company shall furnish the Trustee
with an Officers'
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Certificate and an Opinion of Counsel evidencing compliance with such
restriction.
SECTION 1203. SELECTION BY TRUSTEE OF DEBENTURES TO BE REDEEMED.
If less than all the Debentures are to be redeemed, the particular
Debentures to be redeemed shall be selected not more than 75 days prior to the
Redemption Date by the Trustee, from the Outstanding Debentures not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of a portion
of the principal amount of any Debenture, provided that the unredeemed portion
of the principal amount of any Debenture shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such
security.
The Trustee shall promptly notify the Company in writing of the Debentures
selected for partial redemption and the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Debentures shall relate, in the
case of any Debenture redeemed or to be redeemed only in part, to the portion of
the principal amount of such Debenture which has been or is to be redeemed.
SECTION 1204. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Debentures to be redeemed, at the address of such Holder as it
appears in the Debenture Register.
All notices of redemption shall identify the Debentures to be redeemed
(including CUSIP number) and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all Outstanding Debentures are to be redeemed, the
identification (and, in the case of partial redemption, the
respective principal amounts) of the particular Debentures to be
redeemed;
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Debenture or portion thereof, and that
interest thereon, if any, shall cease to accrue on and after said
date; and
(5) the place or places where such Debentures are to be surrendered for
payment of the Redemption Price.
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Notice of redemption of Debentures to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall not be
irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Debenture designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Debenture.
SECTION 1205. DEPOSIT OF REDEMPTION PRICE.
Prior to 10:00 a.m. New York City time on the Redemption Date specified in
the notice of redemption, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money sufficient to
pay the Redemption Price, with any interest, of all the Debentures (or portions
thereof) so called for redemption.
SECTION 1206. DEBENTURES PAYABLE ON REDEMPTION DATE.
If any notice of redemption has been given as provided in Section 1204,
the Debentures or portion of Debentures with respect to which such notice has
been given shall become due and payable on the Redemption Date at the place or
places stated in such notice and at the Redemption Price therein specified,
together with accrued interest to but excluding the Redemption Date, and from
and after such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Debentures shall cease to bear
interest. On presentation and surrender of such Debentures at a place of payment
in said notice specified, the said Debentures or the specified portions thereof
shall be paid and redeemed by the Company at the Redemption Price, together with
accrued interest to but excluding the Redemption Date; provided, however, that
installments of interest (including any Additional Interest) whose corresponding
Interest Payment Date is on or prior to the Redemption Date will be payable to
the Holders of such Debentures, or one or more Predecessor Debentures,
registered as such at the close of business on the relevant record dates
according to their terms and the provisions of Section 307.
Upon presentation of any Debenture redeemed in part only, the Company
shall execute and the Trustee shall authenticate and deliver to the Holder
thereof, at the expense of the Company, a new Debenture or Debentures, of
authorized denominations, in aggregate principal amount equal to the unredeemed
portion of the Debenture so presented and having the same date of issuance,
Stated Maturity and terms. If a Global Security is so surrendered, such new
Debenture will also be a new Global Security.
If any Debenture called for redemption shall not be so paid upon surrender
thereof for redemption, the principal on such Debenture shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Debenture.
SECTION 1207. OPTIONAL REDEMPTION; CONDITIONS TO OPTIONAL REDEMPTION.
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The Company, at its option, may redeem the Debentures (i) on or after
February 5, 2009, in whole at any time or in part from time to time, subject to
the prior approval of the Federal Reserve if then required under the applicable
capital guidelines or policies of the Federal Reserve, or (ii) upon the
occurrence and during the continuation of a Special Event, at any time within
ninety (90) days following the occurrence of a Special Event in respect of the
Trust, in whole (but not in part), in each case at a redemption price equal to
100% of the principal amount thereof plus any accrued or unpaid interest,
including Additional Interest, if any, to but excluding the Redemption Date (the
"Redemption Price").
ARTICLE THIRTEEN
Miscellaneous
SECTION 1301. COUNTERPARTS.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
VIB CORP
By: /s/ XXXXXX X. XXXX
------------------------------------
[Seal] Name: Xxxxxx X. Xxxx
Title: President and CEO
WILMINGTON TRUST COMPANY
By: /s/ XXXXX X. XXXXXX
------------------------------------
[Seal] Name: Xxxxx X. Xxxxxx
Title: Vice President
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STATE OF CALIFORNIA Section
Section
COUNTY OF LOS ANGELES Section
On the 4th day of February, 1999, before me personally came Xxxxxx X.
Xxxx, to me known, who, being by me duly sworn, did depose and say that he is
the President and CEO of VIB Corp, one of the corporations described in and
which executed the foregoing instrument; and that he signed his name thereto by
authority of the Board of Directors of such corporation.
By: /s/ XXXXX X. XXXXXXX
-------------------------------------
STATE OF DELAWARE Section
Section
COUNTY OF NEW CASTLE Section
On the 3rd day of February, 1999, before me personally came Xxxxx X.
Xxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
the Vice President of Wilmington Trust Company, a Delaware banking corporation
described in and which executed the foregoing instrument; and that he signed his
name thereto by authority of the Board of Directors of such corporation.
By: /s/ XXXXX X. XXXXX
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