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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (Date of earliest event reported): February 5, 1999
VIB Corp
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(Exact name of registrant as specified in its charter)
California
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(State or other jurisdiction of incorporation)
333-43021 33-0780371
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(Commission File Number) (IRS Employer I.D. Number)
1498 Main Street, El Centro, California 92243
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(Address of principal executive offices) (Zip Code)
(760) 337-3200
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(Registrant's telephone number, including area code)
Not Applicable
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(Former name or former address, if changed since last report)
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Item 5. Other Events
On February 5, 1999, the Registrant raised approximately $22.2 million
in net proceeds from an offering of up to 23,000 capital securities in a private
placement. The proceeds will be issued to increase Valley Independent Bank's
capital by at least $8.5 million with the balance to be used for general
corporate purposes. On December 10, 1998, the Registrant formed a wholly-owned
business trust subsidiary, Valley Capital Trust (the "Trust"), pursuant to the
laws of the state of Delaware. The Registrant formed the Trust for the specific
purpose of: (1) investing in the Registrant's 9.00 percent Junior Subordinated
Debentures (the "Debentures"), due February 5, 2029; (2) selling 9.00 percent
Cumulative Capital Securities (the "Capital Securities"), representing a 97
percent beneficial interest in the Debentures owned by the Trust; and (3)
issuing Common Securities (the "Common Securities") to the Registrant,
representing a 3 percent beneficial interest in the Debentures owned by the
Trust.
On January 29, 1999, the Registrant entered into a Purchase Terms
Agreement (the "Agreement") with First Tennessee Capital Markets, a subsidiary
of First Tennessee Bank, N.A. (the "Placement Agent"). Pursuant to the
Agreement, the Placement Agent solicited subscriptions for the purchase of up to
$23 million of the Capital Securities from accredited investors within the
meaning of Rule 501 of Regulation D of the Securities Act.
On February 5, 1999, the Registrant issued $23.093 million in
Debentures to the Trust. Concurrently, the Trust issued $22.4 million of the
Capital Securities to the accredited investors and $693,000 of Common Securities
to the Registrant. The Debentures were purchased by the Trust concurrently with
the Trust's issuance of the Capital Securities and Common Securities. The
proceeds to the Registrant, net of the Placement Agent's fees and other offering
expenses, was approximately $22.2 million, of which approximately $17.4 million
will be treated as Tier 1 capital for regulatory purposes.
The interest on the Debentures will be deductible and paid by the
Registrant and represents the sole source of the Trust's revenues available for
distributions to the holders of the Capital Securities. The undertakings of the
Registrant with regard to the issuance constitute the Registrant's full and
unconditional guarantee of the Trust's obligations pursuant to the Amended and
Restated Trust Agreement filed herewith as Exhibit 4.4, the Guarantee Agreement
filed herewith as Exhibit 4.7, and the Agreement as to Expenses and Liabilities
filed herewith as Exhibit 4.8.
The Registrant has the right, assuming that no default has occurred
regarding the Debentures, to defer interest payments on the Debentures, at any
time and for a period of up to twenty consecutive calendar quarters.
The Capital Securities will mature concurrently with the Debentures on
February 5, 2029; but, can be called after February 5, 2009 or earlier upon the
occurrence of a "Special Event," as is defined in Exhibits 4.1, 4.4, and 4.7
attached herewith.
Item 7. Financial Statements and Exhibits
(a) Financial Statements
Not applicable.
(b) Pro Forma Financial Information
Not applicable.
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(c) List of Exhibits
<TABLE>
<CAPTION>
Number Description
------ -----------
<S> <C>
1.1 Purchase Terms Agreement dated as of January
29, 1999, by and between the Registrant and
First Tennessee Capital Markets
4.1 Junior Subordinated Indenture dated as of
February 5, 1999 by and between the
Registrant and Wilmington Trust Company, as
trustee
4.2 Form of Junior Subordinated Debenture included in Article Two of
Exhibit 4.1
4.3 Trust Agreement of Valley Capital Trust dated as of December 10,
1998 (included as Exhibit A to Exhibit 4.4)
4.4 Amended and Restated Trust Agreement of Valley Capital Trust
dated as of February 5, 1999 among the Registrant, Wilmington
Trust Company, as Property Trustee, and Richard D. Foss, Harry
G. Gooding, III, and Dennis L. Kern, as Administrative Trustees
4.5 Form of Common Security Certificate of Valley Capital Trust
(included as Exhibit B to Exhibit 4.4)
4.6 Form of Capital Security Certificate of Valley Capital Trust
(included as Exhibit C to Exhibit 4.4)
4.7 Guarantee Agreement dated February 5, 1999 between the
Registrant, as Guarantor, and Wilmington Trust Company, as
Guarantee Trustee
4.8 Agreement as to Expenses and Liabilities dated February 5, 1999
between the Registrant and Valley Capital Trust
</TABLE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
VIB CORP
Date: February 16, 1999 /s/ Harry G. Gooding, III
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Harry G. Gooding, III
Executive Vice President
and Chief Financial Officer
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LIST OF EXHIBITS
<TABLE>
<CAPTION>
Number Description Page
- ------ ----------- ----
<S> <C> <C>
1.1 Purchase Terms Agreement dated as of January 29, 1999, by and
between the Registrant and First Tennessee Capital Markets...........................
4.1 Junior Subordinated Indenture dated as of February 5, 1999 by and
between the Registrant and Wilmington Trust Company, as trustee......................
4.2 Form of Junior Subordinated Debenture included in Article Two of
Exhibit 4.1..........................................................................N/A
4.3 Trust Agreement of Valley Capital Trust dated as of December 10,
1998 (included as Exhibit A to Exhibit 4.4)..........................................N/A
4.4 Amended and Restated Trust Agreement of Valley Capital Trust
dated as of February 5, 1999 among the Registrant, Wilmington
Trust Company, as Property Trustee, and Richard D. Foss, Harry
G. Gooding, III, and Dennis L. Kern, as Administrative Trustees......................
4.5 Form of Common Security Certificate of Valley Capital Trust
(included as Exhibit B to Exhibit 4.4)...............................................N/A
4.6 Form of Capital Security Certificate of Valley Capital Trust
(included as Exhibit C to Exhibit 4.4)...............................................N/A
4.7 Guarantee Agreement dated February 5, 1999 between the
Registrant, as Guarantor, and Wilmington Trust Company, as
Guarantee Trustee....................................................................
4.8 Agreement as to Expenses and Liabilities dated February 5, 1999
between the Registrant and Valley Capital Trust......................................
</TABLE>
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EXHIBIT 1.1
20,000 CAPITAL SECURITIES
VALLEY CAPITAL TRUST
9.00% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000.00 PER CAPITAL SECURITY)
PURCHASE TERMS AGREEMENT
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January 29, 1999
[Pricing Date]
First Tennessee Capital Markets
845 Crossover Lane, Suite 150
Memphis, Tennessee 38117
Ladies and Gentlemen:
VIB Corp, a California corporation (the "Company"), and its financing
subsidiary, Valley Capital Trust, a Delaware business trust (the "Trust," and
hereinafter together with the Company, the "Offerors"), hereby confirm their
agreement with you as placement agent (the "Placement Agent"), as follows:
SECTION 1 ISSUANCE OF CAPITAL SECURITIES
1.1. INTRODUCTION. The Offerors propose to issue and sell at the
Closing (as defined in Section 2.4.1 hereof) 20,000 of the Trust's 9.00% Capital
Securities, with a liquidation amount of $1,000.00 per capital security (the
"Capital Securities"), to the purchasers (collectively, the "Purchasers") listed
on Exhibit A attached hereto, as it may be completed and/or updated from time to
time between the date hereof and the Closing Date (as defined in Section 2.4.1
hereof) pursuant to the terms of Subscription Agreements entered into, or to be
entered into on or prior to the Closing Date between the Offerors and each such
Purchaser (collectively, the "Subscription Agreements"), the form of which is
attached hereto as Exhibit B. Solely for the purpose of covering
over-subscriptions, if any, the Trust hereby grants the Placement Agent an
option pursuant to which the Trust shall, upon the exercise thereof by the
Placement Agent, issue and sell at the Closing up to an additional 3,000 Capital
Securities. Unless otherwise defined herein, capitalized terms shall have the
meanings ascribed thereto in the Preliminary Offering Memorandum of the Offerors
dated January 20, 1999 (the "Preliminary Memorandum") and the final Offering
Memorandum to be dated on or before the Closing Date (the "Final Memorandum",
together with the Preliminary Memorandum, the "Memorandum").
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1.2. OPERATIVE AGREEMENTS. The Offerors propose that the Trust issue
the Capital Securities pursuant to an Amended and Restated Trust Agreement among
Wilmington Trust Company, as Property Trustee and Delaware Trustee, the
Administrative Trustees named therein (collectively, the "Trustees"), and the
Company, to be dated as of the Closing Date and in substantially the form
heretofore delivered to the Placement Agent (the "Trust Agreement"). In
connection with the issuance of the Capital Securities, the Company proposes (i)
to issue its Junior Subordinated Debentures (the "Debentures") pursuant to an
Indenture, to be dated as of the Closing Date, between the Company and
Wilmington Trust Company, as Trustee (the "Indenture"), and (ii) to guarantee
certain payments on the Capital Securities pursuant to a Guarantee Agreement, to
be dated as of the Closing Date, between the Company and Wilmington Trust
Company, as guarantee trustee (the "Guarantee"), to the extent described
therein.
1.3. RIGHTS OF PURCHASERS. The Capital Securities shall be offered and
sold by the Trust directly to the Purchasers pursuant to an exemption from the
registration requirements under the Securities Act of 1933, as amended (the
"Securities Act"). The Company agrees that the Placement Agent and the
Purchasers shall be and hereby are entitled to the benefit of, and to rely upon,
the provisions of this Agreement which is incorporated by reference into the
Subscription Agreements. The Offerors and the Placement Agent have entered into
this Agreement to set forth their understanding as to their relationship and
their respective rights, duties and obligations.
1.4. LEGENDS. Upon original issuance thereof, and until such time as
the same is no longer required under the applicable requirements of the
Securities Act, each Capital Security shall contain a legend substantially
similar to the legend set forth under the caption "Notice to Investors" in the
Memorandum or as otherwise required pursuant to any of the documents described
in Section 1.2 hereof or the Expense Agreement (as defined in Section 5.3(d)
hereof) (collectively, the "Operative Documents").
SECTION 2 PLACEMENT AND SALE OF CAPITAL SECURITIES
2.1. EXCLUSIVE RIGHTS; PURCHASE PRICE. From the date hereof until the
Closing Date (which date may be extended by mutual agreement of the Offerors and
the Placement Agent), the Offerors hereby grant to the Placement Agent the
exclusive right to solicit prospective purchasers of the Capital Securities at a
purchase price of $1,000.00 per Capital Security and with a minimum purchase of
$100,000.00.
2.2. DUTIES OF PURCHASERS. Each Purchaser shall be required to complete
and execute a Subscription Agreement. Each Subscription Agreement shall be
independent of any other Subscription Agreement, and the obligation of one
Purchaser to purchase Capital Securities under a Subscription Agreement shall be
independent of, and not conditioned upon, the fulfillment of the obligations of
any other Purchaser under its Subscription Agreement. The Offerors shall have
the right to reject subscriptions in their reasonable discretion and shall
evidence their acceptance of a subscription by countersigning a copy of the
Subscription Agreement and returning the same to the Placement Agent.
2.3. SOLICITATION OF POTENTIAL PURCHASERS. The Placement Agent shall
solicit potential purchasers of the Capital Securities only from parties whom it
has a reasonable basis to believe are
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either Qualified Institutional Buyers ("QIBs"), as such term is defined under
Rule 144A(a)(1) of the Securities Act, institutional accredited investors, as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act
("Institutional Accredited Investors") or individual accredited investors, as
defined in Rule 501(a)(5) or (6) under the Securities Act ("Individual
Accredited Investors"). All solicitations by the Placement Agent on behalf of
the Offerors shall be in compliance with applicable federal and state securities
laws. The Placement Agent shall not make any representation with respect to the
Offerors other than as set forth in the Memorandum. The Placement Agent shall
furnish a certificate at Closing to the effect that it has complied with this
Section 2.3. The Placement Agent may arrange for the solicitation of prospective
purchasers by other persons; provided, however, that (i) any compensation shall
be received by such person pursuant to Section 2.5, and (ii) each such person
shall comply with the representations set forth in this Section 2.3 and shall
furnish a certificate at the Closing to the effect that it has complied with
this Section 2.3. The Placement Agent shall promptly deliver, or cause persons
acting on its behalf to promptly deliver, a copy of the Memorandum to each
Purchaser and prior to the Closing to deliver any subsequent supplements and
exhibits thereto, if any.
2.4. CLOSING AND DELIVERY OF PAYMENT.
2.4.1. CLOSING; CLOSING DATE. The sale and purchase of the
Capital Securities by the Offerors to the Purchasers shall take place at a
closing (the "Closing") at the offices of Horgan, Rosen, Beckham & Coren,
L.L.P., 21700 Oxnard Street, Suite 1400, Woodland Hills, California 91367, at 10
a.m. (Pacific Time) on February 5, 1999, or such other business day as may be
agreed upon by the Offerors and the Placement Agent (the "Closing Date");
provided, however, that in no event shall the Closing Date occur later than
February 28, 1999 unless consented to by the Purchasers. Payments by the
Purchasers shall be payable in the manner set forth in the Subscription
Agreements and shall be made prior to or on the Closing Date.
2.4.2. DTC DELIVERY. If a Purchaser is a QIB, on the Closing
Date, and on the payment of the purchase price, the Purchaser shall become
either, at the Purchaser's election: (A)(i) the registered owner of the Capital
Securities on the records of The Depository Trust Company ("DTC'), a limited
purpose trust company arranged under the laws of the state of New York, and (ii)
the owner of a beneficial interest in the Capital Securities issued in global
book entry form and registered in the name of Cede & Co., as nominee for DTC,
corresponding to the number of purchased Capital Securities acquired by the
Purchaser; or (B) the holder of physical certificate(s) representing the Capital
Securities.
2.4.3. OTHER DELIVERY. If a Purchaser is not a QIB, on the
Closing Date and on the payment of the purchase price, such Purchaser shall
receive a certificate(s) representing the Capital Securities.
2.4.4. TRANSFER AGENT. The Offerors shall deposit the
certificates representing the Capital Securities with the Property Trustee or
other appropriate party prior to the Closing Date.
2.5. PLACEMENT AGENT'S FEES AND EXPENSES.
2.5.1. PLACEMENT AGENT'S COMPENSATION. Because the proceeds
from the sale of the Capital Securities shall be used to purchase the Debentures
from the Company, the Company shall pay $30.00 to the Placement Agent for each
Capital Security sold to a Purchaser.
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2.5.2. COSTS AND EXPENSES. Whether or not this Agreement is
terminated or the sale of the Capital Securities is consummated, the Company
hereby covenants and agrees that it shall pay or cause to be paid (directly or
by reimbursement) all costs and expenses incident to the performance of the
obligations of the Offerors under this Agreement, including the preparation,
printing, delivery and shipping of the Memorandum and any amendments or
supplements thereto, and the printing, delivery and shipping of this Agreement
and the Operative Documents and the certificates for the Capital Securities; all
fees, expenses and disbursements of the counsel and accountants for the
Offerors; all fees and expenses incurred in connection with the qualification of
the Capital Securities, Debentures and the Guarantee under the securities or
blue sky laws of such jurisdictions as the Placement Agent may request,
including all filing fees and fees and disbursements of counsel to the Offerors
and the Placement Agent in connection therewith, including, without limitation,
in connection with the preparation of any Blue Sky Memoranda; the costs and
charges of any trustee, transfer agent or registrar and the fees and
disbursements of counsel to any trustee, transfer agent or registrar; all
applicable fees and other expenses incurred in connection with the designation
of the Capital Securities as securities eligible for trading in the Private
Offerings, Resales and Trading through Automated Linkages ("PORTAL") market; all
applicable fees and other expenses incurred in connection with the book-entry
registration of Capital Securities with DTC or another clearing agency; all
expenses incident to the preparation, execution and delivery of the Trust
Agreement, the Indenture, the Guarantee and the Expense Agreement; and all other
costs and expenses incident to the performance of the obligations of the Company
hereunder and under the Trust Agreement that are not otherwise specifically
provided for in this Section 2.5.2; and the out-of-pocket expenses the Placement
Agent incurred in connection herewith or in contemplation of the performance of
its obligations hereunder, including (without limitation) travel expenses,
reasonable fees, expenses and disbursements of counsel and other out-of-pocket
expenses incurred by the Placement Agent in connection with any discussion of
the offering of the Capital Securities or the contents of the Memorandum, any
investigation of the Offerors and the Subsidiaries, and any preparation for the
marketing, purchase, sale or delivery of the Capital Securities, in each case
following presentation of reasonably detailed invoices therefor; provided,
however, that in no event shall the Offerors be required to reimburse the
Placement Agent for out-of-pocket expenses (of the type described above) in
excess of $100,000.00.
2.5.3. ALLOCATION BETWEEN PLACEMENT AGENT AND OTHER PERSONS.
Any other persons arranging sales of Capital Securities in accordance with the
terms of this Agreement shall receive such compensation as the Placement Agent
may determine in its discretion from the proceeds payable to the Placement Agent
pursuant to Section 2.5.1 above.
2.6. FAILURE TO CLOSE. If any of the conditions to the Closing
specified in this Agreement shall not have been fulfilled to the satisfaction of
the Placement Agent or if the Closing shall not have occurred on or before 10:00
a.m. (Pacific Time) on February 28, 1999, then each party hereto,
notwithstanding anything to the contrary in this Agreement, shall be relieved of
all further obligations under this Agreement without thereby waiving any rights
it may have by reason of such nonfulfillment or failure; provided, however, that
the obligations of the parties under Sections 2.5.2 and 9 hereof shall not be so
relieved and shall continue in full force and effect.
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SECTION 3 CLOSING CONDITIONS
The obligations of each Purchaser and the Placement Agent on the
Closing Date shall be subject to the accuracy, at and as of the Closing Date, of
the representations and warranties of the Offerors contained in this Agreement,
to the accuracy, at and as of the Closing Date, of the statements of the
Offerors made in any certificates pursuant to this Agreement, to the performance
by the Offerors of their respective obligations under this Agreement, to
compliance, at and as of the Closing Date, by the Offerors with their respective
agreements herein contained, and to the following further conditions:
3.1. OPINIONS OF COUNSEL. On the Closing Date, the Purchasers shall
have received a favorable opinion, dated as of the Closing Date and addressed to
the Purchasers and the Placement Agent, from (a) Horgan, Rosen, Beckham & Coren,
L.L.P., counsel for the Offerors, as to the matters set forth on Exhibit C-1
attached hereto, (b) Richards, Layton & Finger, special Delaware counsel to the
Offerors, as to the matters set forth on Exhibit C-2 attached hereto, and (c)
Lewis, Rice & Fingersh, L.C., special tax counsel, that the statements under the
caption "Certain Federal Income Tax Consequences" in the Memorandum, insofar as
such statements constitute a summary of legal and regulatory matters, documents
or instruments referred to therein, are accurate descriptions of the matters
summarized therein in all material respects and fairly present the information
called for with respect to such legal matters, documents and instruments, other
than financial and statistical data, as to which Lewis, Rice & Fingersh, L.C.
shall not be required to express any opinion or belief (collectively, "Offerors'
Counsel Opinions"). In rendering the Offerors' Counsel Opinions, counsel to the
Offerors may rely as to factual matters upon certificates or other documents
furnished by officers, directors and trustees of the Offerors (copies of which
shall be delivered to the Placement Agent on behalf of itself and the
Purchasers) and by government officials, and upon such other documents as
counsel to the Offerors may deem appropriate as a basis for the Offerors'
Counsel Opinion. Counsel to the Offerors may specify the jurisdictions in which
they are admitted to practice and that they are not admitted to practice in any
other jurisdiction and are not experts in the law of any other jurisdiction. To
the extent that the Offerors' Counsel Opinions concern the laws of any other
such jurisdiction, counsel to the Offerors may rely upon the opinion of other
counsel (reasonably satisfactory to the Placement Agent) admitted to practice in
such jurisdiction. Any such other opinion relied upon by counsel to the Offerors
as aforesaid shall be addressed to the Purchasers and the Placement Agent.
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3.2. OFFICERS' CERTIFICATE. At the Closing Date, the Purchasers and the
Placement Agent shall have received certificates from the Chief Executive
Officer and the Chief Financial Officer of the Company, dated as of the Closing
Date, stating that (i) the representations and warranties of the Offerors set
forth in Section 5 hereof are true and correct as of the Closing Date and that
the Offerors have complied with all agreements and satisfied all conditions on
their part to be performed or satisfied at or prior to the Closing Date, (ii)
since the respective dates as of which information is given in the Memorandum
there has not been any material adverse change in the Offerors or any
development which is reasonably likely to have any adverse effect on the
business, operations, earnings, affairs, prospects or results of operations of
the Offerors, (iii) since such dates the Offerors have not incurred any
liability or obligation, direct or contingent, or entered into any material
transactions, other than in the ordinary course of business, which is material
to the Offerors, (iv) they have carefully examined the Memorandum and nothing
has come to their attention that would lead them to believe that the Memorandum
or any amendment or supplement thereto as of their respective effective or issue
dates, contained, and the Memorandum at such Closing Date, contains any untrue
statement of a material fact, or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and (v)
covering such other matters as the Placement Agent may reasonably request.
3.3. TRUSTEES CERTIFICATE. At the Closing Date, the Purchasers shall
have received a certificate of one or more Administrative Trustees of the Trust,
dated as of the Closing Date, stating that (i) the representations and
warranties of the Trust set forth in Section 5 hereof are true and correct as of
the Closing Date and that the Trust has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the Closing Date, and (ii) since the respective dates as of which information is
given in the Memorandum, there has not been any material adverse change in the
Trust, or any development which is reasonably likely to have an adverse effect
on the business, operations, earnings, affairs, prospects, or results of
operations of the Trust and the Trust has not incurred any liability or
obligation, direct or contingent, or entered into any material transactions,
other than those specifically permitted or contemplated by the Operative
Documents.
3.4. ACCOUNTANTS' LETTER. On the date hereof and on the Closing Date,
the Placement Agent shall have received a letter, dated as of the date hereof
and as of the Closing Date, and addressed to the Placement Agent, from Vavrinek,
Trine, Day & Co., LLP, the independent auditors of the Company, in a form and as
to the matters set forth on Exhibit C-3 attached hereto.
3.5. PURCHASE PERMITTED BY APPLICABLE LAWS; LEGAL INVESTMENT. With
respect to each Purchaser, the purchase of and payment for the Capital
Securities (a) shall not be prohibited by any applicable law or governmental
regulation, (b) shall not subject such Purchaser to any penalty or, in the
reasonable judgment of such Purchaser, other onerous condition under or pursuant
to any applicable law or governmental regulation, and (c) shall be permitted by
the laws and regulations of the jurisdictions to which such Purchaser is
subject. The failure by one Purchaser to comply with this Section 3.5 shall only
prevent the purchase by such Purchaser, and shall not have any effect on the
other Purchasers hereunder.
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3.6. CONSENTS AND PERMITS. The Company and the Trust shall have
received all consents, permits and other authorizations, and made all such
filings and declarations, as may be required from any person pursuant to any
law, statute, regulation or rule (federal, state, local and foreign), or
pursuant to any agreement, order or decree to which the Company or the Trust is
a party or to which it is subject, in connection with the transactions
contemplated by this Agreement.
3.7. ACCEPTANCE OF CAPITAL SECURITIES. Prior to or on the Closing Date,
the Offerors shall have received Subscription Agreements executed by the
Purchasers and representing no less than 20,000 and no more than 23,000 Capital
Securities and the Offerors shall have executed such Subscription Agreements on
behalf of the Offerors.
3.8. INFORMATION. Prior to or on the Closing Date, the Offerors shall
have furnished to the Placement Agent such further information, certificates,
opinions and documents addressed to the Purchasers and the Placement Agent,
which the Placement Agent may reasonably request, including, without limitation,
a complete set of the Operative Documents or any other documents or certificates
required by this Section 3; and all proceedings taken by the Offerors in
connection with the issuance, offer and sale of the Capital Securities as herein
contemplated shall be satisfactory in form and substance to the Placement Agent.
If any condition specified in this Section 3 shall not have been fulfilled when
and as required in this Agreement, or if any of the opinions or certificates
mentioned above or elsewhere in this Agreement shall not be satisfactory in form
and substance to the Placement Agent, this Agreement may be terminated by the
Placement Agent by notice to the Offerors at any time at or prior to the Closing
Date. Notice of such termination shall be given to the Offerors in writing or by
telephone or facsimile confirmed in writing.
SECTION 4 CONDITIONS TO THE OFFERORS' OBLIGATIONS
The obligations of the Offerors to sell the Capital Securities
to the Purchasers and consummate the transactions contemplated by this Agreement
shall be subject to the following conditions:
4.1. EXECUTED AGREEMENT. The Offerors shall have received from the
Placement Agent an executed copy of this Agreement.
4.2. APPROVED STATES. The Placement Agent shall not have offered the
Capital Securities to Institutional Accredited Investors, Individual Accredited
Investors or QIBs in any State other than States approved by the Offerors or
States in which Blue Sky exemption clearance has been obtained according to
counsel to the Company or the Placement Agent.
4.3. FULFILLMENT OF OTHER OBLIGATIONS. The Placement Agent shall have
fulfilled all of its other obligations and duties required to be fulfilled under
this Agreement prior to or at the Closing.
SECTION 5 REPRESENTATIONS AND WARRANTIES OF THE OFFERORS
The Offerors jointly and severally represent and warrant to,
and agree with, the Placement Agent and the Purchasers as follows:
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5.1. ACCURACY OF MEMORANDUM AND RELATED MATTERS. The Preliminary
Memorandum is accurate in all material respects and does not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Final Memorandum
will be at the Closing Date accurate in all material respects and will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. There
are no contracts or other documents that are required to be summarized in the
Memorandum, or attached as an exhibit thereto, that are not so summarized or
attached. The sale of the Capital Securities under the Subscription Agreements
is exempt from the registration and prospectus delivery requirements of the
Securities Act. In the case of each offer or sale of the Capital Securities, no
form of general solicitation or general advertising was used by the Offerors or
their representatives (other than the Placement Agent and its representatives)
including, but not limited to, advertisements, articles, notices or other
communications published in any newspaper, magazine or similar medium or
broadcast over television or radio or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising. The
Purchasers are the sole purchasers of the Capital Securities. No securities of
the same class as the Capital Securities, the Debentures or the Guarantee have
been issued and sold by the Offerors within the six-month period immediately
prior to the date of this Agreement. The Offerors agree that neither they nor
any person acting on their behalf shall offer the Capital Securities so as to
bring the issuance and sale of the Capital Securities within the provisions of
Section 5 of the Securities Act nor offer any similar securities for issuance or
sale to, or solicit any offer to acquire any of the same from, or otherwise
approach or negotiate with respect thereto with, anyone if the sale of the
Capital Securities would be integrated as a single offering for the purposes of
the Securities Act, including, without limitation, Regulation D thereunder. The
Offerors have made such reasonable inquiry as is necessary to a determination
that each Purchaser is acquiring the Capital Securities for itself.
5.2. ORGANIZATION, STANDING AND QUALIFICATION.
(a) The Company is duly organized, validly existing and in
good standing under the laws of the State of California, with full corporate and
other power and authority to own, lease and operate its properties and conduct
its business as described in and contemplated by the Memorandum, and as
currently being conducted, and is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended (the "BHC Act"). Each of
the Company and the Subsidiaries (as defined in Section 5.2(c) hereof) is duly
qualified to transact business as a foreign corporation and is in good standing
in each other jurisdiction in which it owns or leases property or conducts its
business so as to require such qualification and in which the failure to so
qualify would, individually or in the aggregate, have a material adverse effect
on the condition (financial or otherwise), earnings, business, prospects or
results of operations of the Company and the Subsidiaries, on a consolidated
basis.
(b) The capital stock of the Offerors conforms to the
description thereof contained in the Memorandum in all material respects. The
outstanding shares of capital stock and equity securities of the Company have
been duly authorized and validly issued and are fully paid and nonassessable,
and no such shares were issued in violation of the preemptive or similar rights
of any security holder of the Company; no person has any preemptive or similar
right to purchase any shares of capital stock or equity securities of the
Offerors. Except as disclosed in the Memorandum, there
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are no outstanding rights, options or warrants to acquire any securities of the
Offerors, and there are no restrictions upon the voting or transfer of any
capital stock of the Offerors pursuant to the Offerors' respective articles of
incorporation, bylaws, or other organizational documents or any agreement or
other instrument to which any Offeror is a party or by which any Offeror is
bound.
(c) The Company has the direct and indirect subsidiaries
identified on Exhibit D hereto (the "Subsidiaries"). The Company does not own or
control, directly or indirectly, more than 5% of any class of equity security of
any corporation, association or other entity other than the Subsidiaries. Valley
Independent Bank (the "Bank") is a bank duly organized, validly existing and in
good standing under the laws of the State of California. Each Subsidiary other
than the Bank is a corporation or business trust duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or organization. Each Subsidiary has full corporate and other
power and authority to own, lease and operate its properties and to conduct its
business as described in and contemplated by the Memorandum and as currently
being conducted. The deposit accounts of the Bank are insured by the Bank
Insurance Fund and/or the Savings Association Insurance Fund administered by the
Federal Deposit Insurance Corporation (the "FDIC") up to the maximum amount
provided by law; and no proceedings for the modification, termination or
revocation of any such insurance are pending or, to the knowledge of the
Offerors, threatened. All of the issued and outstanding shares of capital stock
of the Subsidiaries (i) have been duly authorized and are validly issued, (ii)
are fully paid and nonassessable except to the extent such shares may be deemed
assessable under 12 U.S.C. Section 55 or 12 U.S.C. Section 1831o, and (iii)
except as disclosed in the Memorandum, are directly owned by the Company free
and clear of any security interest, mortgage, pledge, lien, encumbrance,
restriction upon voting or transfer, preemptive rights, claim or equity. Except
as disclosed in the Memorandum, there are no outstanding rights, warrants or
options to acquire or instruments convertible into or exchangeable for any
capital stock or equity securities of the Company or the Subsidiaries.
(d) The Trust has been duly created and is validly existing as
a statutory business trust in good standing under the Delaware Business Trust
Act with the power and authority (trust and other) to own its property and
conduct its business as described in the Memorandum, to issue and sell its
Common Securities to the Company pursuant to the Trust Agreement, to issue and
sell the Capital Securities, to enter into and perform its obligations under
this Agreement, the Subscription Agreements and the Trust Agreement and to
consummate the transactions herein contemplated; the Trust has no subsidiaries
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership of its
property requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material adverse effect
on the Trust; the Trust has conducted and will conduct no business other than
the transactions contemplated by this Agreement, the Trust Agreement and
described in the Memorandum; the Trust is not a party to or bound by any
agreement or instrument other than this Agreement and the initial Trust
Agreement among the Administrative Trustees and Wilmington Trust Company dated
December 10, 1998 (the "Original Trust Agreement"); at the Closing Date, the
Trust will not be a party to or be bound by any agreement or instrument other
than the Trust Agreement and the agreements and instruments contemplated by the
Trust Agreement and described in the Memorandum; the Trust has no liabilities or
obligations other than those arising out of the transactions contemplated by
this Agreement and the Trust Agreement and described in the Memorandum; the
Trust is not a party to or subject to any action, suit or proceeding of any
nature; the Trust is not, and at the Closing Date will not be, classified as an
association taxable as a
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corporation for United States federal income tax purposes; and the Trust is, and
as of the Closing Date will be, treated as a consolidated subsidiary of the
Company pursuant to generally accepted accounting principles.
5.3 AUTHORIZATION AND LEGALITY.
(a) The Trust has all requisite power and authority to issue,
sell and deliver the Capital Securities in accordance with and upon the terms
and conditions set forth in this Agreement, the Subscription Agreements, the
Trust Agreement and the Memorandum. All corporate action required to be taken by
the Offerors for the authorization, issuance, sale and delivery of the Capital
Securities in accordance with such terms and conditions has been validly and
sufficiently taken. The Capital Securities, when delivered in accordance with
this Agreement and the Subscription Agreements, shall be duly and validly issued
and outstanding and shall be fully paid and nonassessable, shall not be issued
in violation of or subject to any preemptive or similar rights, and shall
conform in all material respects to the description thereof in the Memorandum.
None of the Capital Securities, immediately prior to delivery, shall be subject
to any security interest, lien, mortgage, pledge, encumbrance, restriction upon
voting or transfer, preemptive rights, claim, equity or other defect.
(b) The Debentures have been duly and validly authorized, and,
when duly and validly executed, authenticated and issued as provided in the
Indenture and delivered to the Trust pursuant to the Trust Agreement, shall
constitute valid and legally binding obligations of the Company entitled to the
benefits of the Indenture and shall conform to the description thereof contained
in the Memorandum.
(c) The Guarantee has been duly and validly authorized, and,
when duly and validly executed and delivered to the Guarantee Trustee for the
benefit of the Trust, shall constitute valid and legally binding obligations of
the Company and shall conform to the description thereof contained in the
Memorandum.
(d) The Agreement as to Expenses and Liabilities between the
Company and the Trust (the "Expense Agreement") has been duly and validly
authorized, and, when duly and validly executed and delivered to the Company,
shall constitute valid and legally binding obligations of the Company and shall
conform to the description thereof contained in the Memorandum.
5.4. PENDING ACQUISITIONS. The Offerors and, to the knowledge of the
Offerors, Bank of Stockdale, F.S.B. ("Bank of Stockdale") and Fremont Investment
& Loan ("Fremont")(with respect only to the branch office (the "Hemet Branch")
that shall be transferred to the Bank pursuant to the terms of that certain
Agreement to Assume Liabilities and to Acquire Assets, dated September 22, 1998
by and between Fremont and the Bank (the "Branch Purchase Agreement") have
complied in all respects material to the business or operations of the Company
with all federal, state and local statutes, regulations, ordinances and rules
applicable to the ownership and operation of their properties or the conduct of
their businesses as described in and contemplated by the Memorandum and as
currently being conducted.
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5.5. PERMITS. The Offerors and, to the knowledge of the Offerors, Bank
of Stockdale and Fremont (with respect to the Hemet Branch) have all material
permits, easements, consents, licenses, franchises and other governmental and
regulatory authorizations from all appropriate federal, state, local or other
public authorities ("Permits") as are necessary to own and lease their
properties and conduct their businesses in the manner described in and
contemplated by the Memorandum and as currently being conducted in all material
respects. All such Permits are in full force and effect and each of the Offerors
and, to the knowledge of the Offerors, Bank of Stockdale and Fremont (with
respect to the Hemet Branch) are in all material respects complying therewith,
and, to the knowledge of the Offerors, no event has occurred that allows, or
after notice or lapse of time would allow, revocation or termination thereof or
will result in any other material impairment of the rights of the holder of any
such Permit, subject in each case to such qualification as may be adequately
disclosed in the Memorandum. Such Permits contain no restrictions that would
materially impair the ability of the Offerors or, to the knowledge of the
Offerors, Bank of Stockdale and Fremont (with respect to the Hemet Branch) to
conduct their businesses in the manner consistent with their past practices.
Neither the Offerors nor, to the knowledge of the Offerors, Bank of Stockdale
and Fremont (with respect to the Fremont Branch) has received notice or
otherwise has knowledge of any proceeding or action relating to the revocation
or modification of any such Permit.
5.6. NO DEFAULTS. Neither the Offerors nor, to the knowledge of the
Offerors, Bank of Stockdale and Fremont (with respect to the Hemet Branch) is in
breach or violation of its corporate articles of incorporation or charter,
by-laws or other governing documents in any material respect. Neither the
Offerors nor, to the knowledge of the Offerors, Bank of Stockdale and Fremont
(with respect to the Hemet Branch) is, and to the knowledge of the Offerors no
other party is, in violation, breach or default (with or without notice or lapse
of time or both) in the performance or observance of any term, covenant,
agreement, obligation, representation, warranty or condition contained in (a)
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease, franchise, license, Permit or any other agreement or instrument to
which it is a party or by which it or any of its properties may be bound, which
breach, violation or default could have a material adverse consequence to the
Offerors or Bank of Stockdale and Fremont (with respect to the Hemet Branch) on
a consolidated basis, and, to the knowledge of the Offerors, no other party has
threatened that the Offerors, Bank of Stockdale or Fremont (with respect to the
Hemet Branch) is in such violation, breach or default, or (b) except as
disclosed in the Memorandum, any order, decree, judgment, rule or regulation of
any court, arbitrator, government, or governmental agency or instrumentality,
domestic or foreign, having jurisdiction over the Offerors, Bank of Stockdale or
Fremont (with respect to the Hemet Branch) or any of their respective properties
the breach, violation or default of which could have a material adverse effect
on the condition, financial or otherwise, earnings, affairs, business,
prospects, or results of operations of the Offerors, Bank of Stockdale or
Fremont (with respect to the Hemet Branch), on a consolidated basis.
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5.7. CONFLICTS, AUTHORIZATIONS AND APPROVALS. The execution, delivery
and performance of this Agreement and the Subscription Agreements and the
consummation of the transactions contemplated by this Agreement, the
Subscription Agreements, the Operative Documents and the Memorandum do not and
will not conflict with, result in the creation or imposition of any material
lien, claim, charge, encumbrance or restriction upon any property or assets of
the Offerors or the Capital Securities pursuant to, constitute a breach or
violation of, or constitute a default under, with or without notice or lapse of
time or both, any of the terms, provisions or conditions of the articles of
incorporation or by-laws of the Company, the Operative Documents, any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease,
Permit or any other agreement or instrument to which the Offerors or the
Subsidiaries is a party or by which any of them or any of their respective
properties may be bound or any order, decree, judgment, rule or regulation of
any court, arbitrator, government, or governmental agency or instrumentality,
domestic or foreign, having jurisdiction over the Offerors or the Subsidiaries
or any of their respective properties which conflict, creation, imposition,
breach, violation or default would, either singly or in the aggregate, have a
material adverse effect on the condition, financial or otherwise, earnings,
affairs, business, prospects or results of operations of the Offerors on a
consolidated basis. No authorization, approval, consent or order of or filing,
registration or qualification with, any person (including, without limitation,
any court, governmental body or authority) is required in connection with the
transactions contemplated by this Agreement, the Subscription Agreements, the
Operative Documents or the Memorandum, except pursuant to the Blue Sky laws of
any jurisdiction and the Board of Governors of the Federal Reserve System (which
approval has been obtained).
5.8. POWER AND AUTHORITY. The Offerors have all requisite corporate or
trust power and authority to enter into this Agreement and the Subscription
Agreements, and this Agreement has been duly and validly authorized, executed
and delivered by the Offerors and constitutes the legal, valid and binding
agreement of the Offerors, enforceable against the Offerors in accordance with
its terms, except as the enforcement thereof may be limited by general
principles of equity and by bankruptcy or other laws relating to or affecting
creditors' rights generally and except as any indemnification or contribution
provisions thereof may be limited under applicable securities laws. The
Subscription Agreements, when executed and delivered by the Offerors and the
Purchasers, shall constitute the legal, valid and binding agreement of the
Offerors, enforceable against the Offerors in accordance with their respective
terms, except as the enforcement thereof may be limited by general principles of
equity and by bankruptcy or other laws relating to or affecting creditors'
rights generally and except as any indemnification or contribution provisions
thereof may be limited under applicable securities laws. Each of the Indenture,
the Trust Agreement, the Guarantee and the Expense Agreement has been duly
authorized by the Company, and, when executed and delivered by the Company on
the Closing Date, each of said agreements will constitute a valid and legally
binding obligation of the Company and will be enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be limited by
general principles of equity and by bankruptcy or other laws relating to or
affecting creditors' rights generally and except as any indemnification or
contribution provisions thereof may be limited under applicable securities laws.
The Trust Agreement has been duly authorized by the Trust, and, when executed
and delivered by the Trust on the Closing Date, will constitute a valid and
legally binding obligation of the Trust and will be enforceable against the
Trust in accordance with its terms, except as the enforcement thereof may be
limited by general principles of equity and by bankruptcy or other laws relating
to or affecting creditors' rights generally and except as any indemnification or
contribution provisions thereof may be limited under applicable securities laws.
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5.9. TITLE TO PROPERTIES. The Offerors and, to the knowledge of the
Offerors, Bank of Stockdale and Fremont (with respect to the Hemet Branch) have
good and marketable title in fee simple to all real property and good title to
all personal property owned by them and material to their business, in each case
free and clear of all security interests, liens, mortgages, pledges,
encumbrances, restrictions, claims, equities and other defects except such as
are referred to in the Memorandum or such as do not materially affect the value
of such property in the aggregate and do not materially interfere with the use
made or proposed to be made of such property; and all of the leases under which
the Offerors or, to the knowledge of the Offerors, Bank of Stockdale and Fremont
(with respect to the Hemet Branch) hold real or personal property are valid,
existing and enforceable leases and in full force and effect with such
exceptions as are not material and do not materially interfere with the use made
or proposed to be made of such real or personal property, and neither the
Offerors nor, to the knowledge of the Offerors, Bank of Stockdale or Fremont
(with respect to the Hemet Branch) is in default in any material respect of any
of the terms or provisions of any leases.
5.10. ACCOUNTANTS. Vavrinek, Trine, Day & Co., LLP, who has audited the
financial statements of the Company and the Bank, including the notes thereto,
included in the Memorandum, are independent public accountants with respect to
the Offerors.
5.11. FINANCIAL STATEMENTS. The consolidated financial statements,
including the notes thereto, included in the Memorandum with respect to the
Company and, to the knowledge of the Offerors, with respect to the Bank of
Stockdale, present fairly the consolidated financial position of the Company and
Bank of Stockdale as of the dates indicated and the consolidated results of
operations, cash flows and shareholders' equity of the Company and Bank of
Stockdale for the periods specified and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis. The
selected and summary consolidated financial data concerning the Company and, to
the knowledge of the Offerors, with respect to the Bank of Stockdale, included
in the Memorandum present fairly the information set forth therein, and have
been compiled on a basis consistent with that of the consolidated financial
statements of the Company and Bank of Stockdale in the Memorandum. The other
financial, statistical and numerical information included in the Memorandum
presents fairly the information shown therein, and to the extent applicable has
been compiled on a basis consistent with the consolidated financial statements
of the Company and Bank of Stockdale included in the Memorandum.
5.12. PRO FORMA INFORMATION. The pro forma financial information of the
Offerors included in the Memorandum giving effect to the acquisition by the
Company of Bank of Stockdale and the Hemet Branch presents fairly in all
material respects the information shown therein, has been compiled on a basis
consistent with that of the consolidated financial statements of the Offerors
and Bank of Stockdale included in the Memorandum, the assumptions used in the
preparation thereof are reasonable and comply as to form in all material
respects with the applicable accounting requirements of Article 11 of Regulation
S-X under the Securities Act.
5.13. SUBSEQUENT EVENTS. Since the respective dates as of which
information is given in the Memorandum, except as otherwise stated therein:
(a) Neither the Offerors nor, to the knowledge of the
Offerors, Bank of Stockdale and Fremont (with respect to the Hemet Branch) has
sustained any loss or interference with its
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business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree which is material to the condition (financial or otherwise), earnings,
business, prospects or results of operations of the Offerors on a consolidated
basis or, to the knowledge of the Offerors, Bank of Stockdale or Fremont (with
respect to the Hemet Branch);
(b) There has not been any material adverse change in, or any
development which is reasonably likely to have a material adverse effect on, the
condition (financial or otherwise), earnings, business, prospects or results of
operations of the Offerors on a consolidated basis and, to the knowledge of the
Offerors, Bank of Stockdale or Fremont (with respect to the Hemet Branch);
(c) Neither the Offerors nor, to the knowledge of the
Offerors, Bank of Stockdale or Fremont (with respect to the Hemet Branch) has
incurred any liabilities or obligations, direct or contingent, or entered into
any material transactions, other than in the ordinary course of business which
is material to the condition (financial or otherwise), earnings, business,
prospects or results of operations of the Offerors on a consolidated basis or,
to the knowledge of the Offerors, Bank of Stockdale or Fremont (with respect to
the Hemet Branch);
(d) Other than the Company's 3% stock dividend paid on or
about December 11, 1998 to shareholders of record on November 20, 1998, the
Offerors have not declared or paid any dividend, and neither the Offerors nor,
to the knowledge of the Offerors, Bank of Stockdale or Fremont (with respect to
the Hemet Branch) has become delinquent in the payment of principal or interest
on any outstanding borrowings; and
(e) There has not been any change in the capital stock, equity
securities, long-term debt, obligations under capital leases or, other than in
the ordinary course of business, short-term borrowings of the Offerors.
5.14. LITIGATION. Except as set forth in the Memorandum, no charge,
investigation, action, suit or proceeding is pending or, to the knowledge of the
Offerors, threatened, against or affecting the Offerors or, to the knowledge of
the Offerors, Bank of Stockdale or Fremont (with respect to the Hemet Branch),
or any of their respective properties before or by any court or any regulatory,
administrative or governmental official, commission, board, agency or other
authority or body, or any arbitrator, wherein an unfavorable decision, ruling or
finding could have a material adverse effect on the consummation of this
Agreement or the transactions contemplated herein or the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations of
the Offerors on a consolidated basis or, to the knowledge of the Offerors, Bank
of Stockdale or Fremont (with respect to the Hemet Branch), or which is required
to be disclosed in the Memorandum.
5.15. INTELLECTUAL PROPERTY. The Offerors and, to the knowledge of the
Offerors, Bank of Stockdale and Fremont (with respect to the Hemet Branch) own,
or possess adequate rights to use, all patents, copyrights, trademarks, service
marks, trade names or other rights necessary to conduct the businesses now
conducted by them in all material respects or as described in the Memorandum and
neither the Offerors nor, to the knowledge of the Offerors, Bank of Stockdale or
Fremont (with respect to the Hemet Branch) have received any notice of
infringement or conflict with asserted rights of others with respect to any
patents, copyrights, trademarks, service marks, trade names or other rights
which, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or
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finding, would have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or results of operations of
the Offerors on a consolidated basis, Bank of Stockdale or Fremont (with respect
to the Hemet Branch), and the Offerors do not know of any basis for such
infringement or conflict.
5.16. LABOR MATTERS. Except as set forth in the Memorandum, no labor
dispute involving the Offerors or, to the knowledge of the Offerors, Bank of
Stockdale or Fremont (with respect to the Hemet Branch) exists or, to the
knowledge of the Offerors, is threatened or imminent, which might be expected to
have a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the Offerors
on a consolidated basis, Bank of Stockdale and Fremont (with respect to the
Hemet Branch), or which is required to be disclosed in the Memorandum. Neither
the Offerors nor, to the knowledge of the Offerors, Bank of Stockdale or Fremont
(with respect to the Hemet Branch) have received notice of any existing or
threatened labor dispute by the employees of any of its principal suppliers,
customers or contractors which might be expected to have a material adverse
effect on the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Offerors, Bank of Stockdale or Fremont
(with respect to the Hemet Branch).
5.17. TAX RETURNS. The Offerors and, to the knowledge of the Offerors,
Bank of Stockdale have timely and properly prepared and filed all necessary
federal, state, local and foreign tax returns which are required to be filed and
have paid all taxes shown as due thereon and have paid all other taxes and
assessments to the extent that the same shall have become due, except such as
are being contested in good faith or where the failure to so timely and properly
prepare and file would not have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business, prospects or results of
operations of the Offerors, on a consolidated basis, and Bank of Stockdale. The
Offerors have no knowledge of any tax deficiency which has been or might be
assessed against the Offerors or Bank of Stockdale which, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse effect on
the condition (financial or otherwise), earnings, affairs, business, prospects
or results of operations of the Offerors, on a consolidated basis, or Bank of
Stockdale.
5.18. MATERIAL CONTRACTS. Each of the material contracts, agreements
and instruments described or referred to in the Memorandum is in full force and
effect and is the legal, valid and binding agreement of the Offerors or, to the
knowledge of the Offerors, Bank of Stockdale or Fremont (with respect to the
Hemet Branch), enforceable in accordance with its terms, except as the
enforcement thereof may be limited by general principles of equity and by
bankruptcy or other laws relating to or affecting creditors' rights generally or
by 12 U.S.C. Section 1818(b)(6)(D). Except as disclosed in the Memorandum, to
the knowledge of the Offerors, no other party to any such agreement is (with or
without notice or lapse of time or both) in breach or default in any material
respect thereunder.
5.19. DIVIDEND RESTRICTIONS. Except as set forth in the Memorandum,
there are no contractual encumbrances or restrictions or material legal
restrictions required to be described therein on the ability of the Subsidiaries
(i) to pay dividends or make any other distributions on its capital stock or to
pay any indebtedness owed to the Offerors, (ii) to make any loans or advances
to, or investments in, the Offerors, or (iii) to transfer any of its property or
assets to the Offerors.
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5.20. INVESTMENT COMPANY. Neither the Company nor the Trust is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended (the "Investment Company Act").
5.21. OTHER OFFERING MATERIAL. The Offerors have not distributed, and
shall not distribute, any offering document in connection with the offering
contemplated hereby, other than the Memorandum.
5.22. INTERNAL CONTROLS. The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (iii) access to
accounts is permitted only in accordance with management's general or specific
authorization, and (iv) the recorded accounts for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken with
respect thereto.
5.23. ENVIRONMENTAL MATTERS. Except as set forth in the Memorandum, to
the knowledge of the Offerors, there is no factual basis for any action, suit or
other proceeding involving the Offerors, Bank of Stockdale or Fremont (with
respect to the Hemet Branch) or any of their respective material assets for any
failure of the Company, Bank of Stockdale or Fremont (with respect to the Hemet
Branch) or any predecessor thereof, to comply with any requirements of federal,
state or local regulation relating to air, water, solid waste management,
hazardous or toxic substances, or the protection of health or the environment,
except where such action, suit or other proceeding would not have a material
adverse effect on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Offerors, on a consolidated
basis. Except as set forth in the Memorandum or as would not have material
adverse effect on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Offerors, on a consolidated
basis, to the knowledge of the Offerors, none of the property owned or leased by
the Offerors, Bank of Stockdale or Fremont (with respect to the Hemet Branch) is
contaminated with any waste or hazardous substances, and neither the Offerors,
Bank of Stockdale nor Fremont (with respect to the Hemet Branch) may be deemed
an "owner or operator" of a "facility" or "vessel" which owns, possesses,
transports, generates or disposes of a "hazardous substance" as those terms are
defined in Section 9601 of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq.
5.24. ACQUISITION AGREEMENTS.
(a) All of the representations and warranties of the Company
contained in the Agreement and Plan of Reorganization, dated September 15, 1998
(the "Reorganization Agreement") are true and correct in all material respects,
and the Company has no reason to believe that (i) any of the representations and
warranties of Bank of Stockdale contained in the Reorganization Agreement and
any document delivered in connection therewith are not true and correct in all
material respects; and (ii) any condition to consummation of the transactions
contemplated by the Reorganization Agreement and any document delivered in
connection therewith will not be satisfied or that such transactions will not be
consummated as contemplated in the Reorganization Agreement.
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(b) All of the representations and warranties of the Bank
contained in the Branch Purchase Agreement are true and correct in all material
respects, and the Company has no reason to believe that (i) any of the
representations and warranties of Fremont contained in the Branch Purchase
Agreement and any document delivered in connection therewith are not true and
correct in all material respects; and (ii) any condition to consummation of the
transactions contemplated by the Branch Purchase Agreement and any document
delivered in connection therewith will not be satisfied or that such
transactions will not be consummated as contemplated in the Branch Purchase
Agreement.
SECTION 6 REPRESENTATIONS AND WARRANTIES OF THE PLACEMENT AGENT
The Placement Agent represents and warrants to the Offerors as follows:
6.1. ORGANIZATION, STANDING AND QUALIFICATION. The Placement Agent is a
division of First Tennessee Bank, N.A., a national banking association duly
organized, validly existing and in good standing under the laws of the United
States, with full power and authority to own, lease and operate its properties
and conduct its business as currently being conducted. The Placement Agent is
duly qualified to transact business as a foreign corporation and is in good
standing in each other jurisdiction in which it owns or leases property or
conducts its business so as to require such qualification and in which the
failure to so qualify would, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), earnings, business,
prospects or results of operations of the Placement Agent.
6.2. POWER AND AUTHORITY. The Placement Agent has all requisite power
and authority to enter into this Agreement, and this Agreement has been duly and
validly authorized, executed and delivered by the Placement Agent and
constitutes the legal, valid and binding agreement of the Placement Agent,
enforceable against the Placement Agent in accordance with its terms, except as
the enforcement thereof may be limited by general principles of equity and by
bankruptcy or other laws relating to or affecting creditors' rights generally
and except as any indemnification or contribution provisions thereof may be
limited under applicable securities laws.
6.3. INFORMATION. The information regarding the Placement Agent set
forth under the caption "Plan of Distribution" in the Offering Memorandum (the
"Placement Agent Information") is accurate in all material respects and does not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
SECTION 7 COVENANTS OF THE OFFERORS
The Offerors covenant and agree with the Placement Agent and the
Purchasers as follows:
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<PAGE> 18
7.1. COMPLIANCE WITH REPRESENTATIONS AND WARRANTIES. During the period
from the date of this Agreement to the Closing Date, the Offerors shall use
their best efforts and take all action necessary or appropriate to cause their
representations and warranties contained in Section 5 hereof to be true as of
Closing Date, after giving effect to the transactions contemplated by this
Agreement, as if made on and as of the Closing Date.
7.2. SALE OF OTHER SECURITIES. The Offerors and their affiliates shall
not sell, offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in the Securities Act) that would or could
be integrated with the sale of the Capital Securities in a manner that would
require the registration under the Securities Act of the Capital Securities.
7.3. 144A INFORMATION AND FINANCIAL INFORMATION. For so long as any of
the Capital Securities remain outstanding, the Offerors agree to make available
to any beneficial owner of the Capital Securities and any prospective purchaser
of such Capital Securities, the information required by Rule 144A(d)(4) under
the Securities Act.
7.4. USE OF PROCEEDS. The Trust shall use the proceeds from the sale of
the Capital Securities to purchase the Debentures from the Company and the
Company shall use the net proceeds received from the sale of the Debentures to
the Trust in the manner specified in the Memorandum under the caption "Use of
Proceeds."
7.5. INVESTMENT COMPANY. The Offerors shall not engage, or permit any
Subsidiary to engage, in any activity which would cause it or any Subsidiary to
be an "investment company" under the provisions of the Investment Company Act.
SECTION 8 COVENANTS OF THE PLACEMENT AGENT
The Placement Agent covenants and agrees with the Offerors as follows:
8.1 COMPLIANCE WITH REPRESENTATIONS AND WARRANTIES. During the period
from the date of this Agreement to the Closing Date, the Placement Agent shall
use its best efforts and take all action necessary or appropriate to cause its
representations and warranties contained in Section 6 hereof to be true as of
Closing Date, after giving effect to the transactions contemplated by this
Agreement, as if made on and as of the Closing Date.
8.2 COMPLIANCE WITH SECURITIES LAWS AND TERMS OF THE OFFERING. The
Placement Agent, in connection with its obligations hereunder, shall comply with
the state Blue Sky laws of the various jurisdictions in which the Capital
Securities will be offered or sold and shall solicit potential purchasers of the
Capital Securities in accordance with Section 2.3 hereof and as described in the
Memorandum.
SECTION 9 INDEMNIFICATION
9.1. INDEMNIFICATION OBLIGATION.
(a) The Offerors shall jointly and severally indemnify and
hold harmless each
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<PAGE> 19
Purchaser (each such Purchaser shall be an "Indemnified Purchaser") and the
Placement Agent and each person that controls each Indemnified Purchaser and the
Placement Agent within the meaning of Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and agents, employees, officers and directors or any such controlling
person of any Indemnified Purchaser and Placement Agent (each such indemnified
party, a "Purchaser Indemnified Party") from and against any and all losses,
claims, damages, judgments, liabilities or expenses, joint or several, to which
such Purchaser Indemnified Party may become subject under the Securities Act,
the Exchange Act or other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of the Offerors), insofar as
such losses, claims, damages, liabilities or expenses (or actions in respect
thereof as contemplated below) arise out of, or are based upon, or relate to,
any untrue statement or alleged untrue statement of any material fact contained
in the Memorandum, arise out of, or are based upon, or relate to, the omission
or alleged omission to state in the Memorandum a material fact required to be
stated therein or necessary to make the statements in the Memorandum not
misleading, or arise out of, or are based upon, or relate to, in whole or in
part on any breach or inaccuracy of any representation or warranty of the
Offerors set forth herein or any failure of the Offerors to perform their
respective obligations hereunder or under the Subscription Agreements or under
law; and shall reimburse each Purchaser Indemnified Party for any legal and
other expenses as such expenses are reasonably incurred by such Purchaser
Indemnified Party in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action; provided, however, that the Offerors shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Memorandum about a Purchaser
Indemnified Party in reliance upon and in conformity with the information
furnished to the Offerors in writing by any Purchaser Indemnified Party
expressly for use therein. In addition to its other obligations under this
Section 9, the Offerors hereby agree that, as an interim measure during the
pendency of any claim, action, investigation, inquiry or other proceeding
arising out of, or based upon, or related to the matters described above in this
Section 9.1(a), they shall reimburse each Purchaser Indemnified Party on a
quarterly basis for all reasonable legal or other expenses incurred in
connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the possibility
that such payments might later be held to have been improper by a court of
competent jurisdiction. To the extent that any such interim reimbursement
payment is so held to have been improper, each Purchaser Indemnified Party shall
promptly return such amounts to the Offerors together with interest, determined
on the basis of the prime rate (or other commercial lending rate for borrowers
of the highest credit standing) announced from time to time by First Tennessee
Bank, N.A. (the "Prime Rate"). Any such interim reimbursement payments which are
not made to a Purchaser Indemnified Party within 30 days of a request for
reimbursement, shall bear interest at the Prime Rate from the date of such
request.
19
<PAGE> 20
(b) Placement Agent shall indemnify and hold harmless the
Offerors and each person that controls the Offerors within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, and agents,
employees, officers and directors or any such controlling person of the Offerors
(each such indemnified party, an "Offeror Indemnified Party") from and against
any and all losses, claims, damages, judgments, liabilities or expenses, joint
or several, to which such Offeror Indemnified Party may become subject under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Placement Agent), insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof as contemplated below) solely arise out
of, or are based solely upon, or relate solely to the gross negligence or
willful misconduct of the Placement Agent; and shall reimburse each Offeror
Indemnified Party for any legal and other expenses as such expenses are
reasonably incurred by such Offeror Indemnified Party in connection with
investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action. In addition to its other obligations under
this Section 9, the Placement Agent hereby agrees that, as an interim measure
during the pendency of any claim, action, investigation, inquiry or other
proceeding arising out of, or based upon, or related to the matters described
above in this Section 9.1(b), it shall reimburse each Offeror Indemnified Party
on a quarterly basis for all reasonable legal or other expenses incurred in
connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the possibility
that such payments might later be held to have been improper by a court of
competent jurisdiction. To the extent that any such interim reimbursement
payment is so held to have been improper, each Offeror Indemnified Party shall
promptly return such amounts to the Placement Agent together with interest at
the Prime Rate. Any such interim reimbursement payments which are not made to an
Offeror Indemnified Party within 30 days of a request for reimbursement, shall
bear interest at the Prime Rate from the date of such request.
9.2. CONDUCT OF INDEMNIFICATION PROCEEDINGS.
(a) Promptly after receipt by a Purchaser Indemnified Party
under this Section 9 of notice of the commencement of any action, such Purchaser
Indemnified Party shall, if a claim in respect thereof is to be made against the
Offerors under this Section 9, notify the Offerors in writing of the
commencement thereof; but the omission so to notify the Offerors shall not
relieve them from any liability which the Offerors may have to any Purchaser
Indemnified Party. In case any such action is brought against any Purchaser
Indemnified Party and such Purchaser Indemnified Party seeks or intends to seek
indemnity from the Offerors, the Offerors shall be entitled to participate in,
and, to the extent that they may wish, to assume the defense thereof with
counsel reasonably satisfactory to such Purchaser Indemnified Party; provided,
however, if the defendants in any such action include both the Purchaser
Indemnified Party and the Offerors and the Purchaser Indemnified Party shall
have reasonably concluded that there may be a conflict between the positions of
the Offerors and the Purchaser Indemnified Party in conducting the defense of
any such action or that there may be legal defenses available to it and/or other
Purchaser Indemnified Parties which are different from or additional to those
available to the Offerors, the Purchaser Indemnified Party shall have the right
to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such Purchaser
Indemnified Party. Upon receipt of notice from the Offerors to such Purchaser
Indemnified Party of their election so to assume the defense of such action and
approval by the Purchaser Indemnified Party of counsel, the Offerors shall not
be liable to such
20
<PAGE> 21
Purchaser Indemnified Party under this Section 9 for any legal or other expenses
subsequently incurred by such Purchaser Indemnified Party in connection with the
defense thereof unless (i) the Purchaser Indemnified Party shall have employed
such counsel in connection with the assumption of legal defenses in accordance
with the proviso in the preceding sentence (it being understood, however, that
the Offerors shall not be liable for the expenses of more than one separate
counsel representing the Purchaser Indemnified Parties who are parties to such
action), or (ii) the Offerors shall not have employed counsel reasonably
satisfactory to the Purchaser Indemnified Party to represent the Purchaser
Indemnified Party within a reasonable time after notice of commencement of the
action, in each of which cases the fees and expenses of counsel shall be at the
expense of the Offerors.
(b) Promptly after receipt by an Offeror Indemnified Party
under this Section 9 of notice of the commencement of any action, such Offeror
Indemnified Party shall, if a claim in respect thereof is to be made against the
Placement Agent under this Section 9, notify the Placement Agent in writing of
the commencement thereof; but the omission so to notify the Placement Agent
shall not relieve it from any liability which the Placement Agent may have to
any Offeror Indemnified Party. In case any such action is brought against any
Offeror Indemnified Party and such Offeror Indemnified Party seeks or intends to
seek indemnity from the Placement Agent, the Placement Agent shall be entitled
to participate in, and, to the extent that it may wish, to assume the defense
thereof with counsel reasonably satisfactory to such Offeror Indemnified Party;
provided, however, if the defendants in any such action include both the Offeror
Indemnified Party and the Placement Agent and the Offeror Indemnified Party
shall have reasonably concluded that there may be a conflict between the
positions of the Placement Agent and the Offeror Indemnified Party in conducting
the defense of any such action or that there may be legal defenses available to
it and/or other Offeror Indemnified Parties which are different from or
additional to those available to the Placement Agent, the Offeror Indemnified
Party shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such Offeror Indemnified Party. Upon receipt of notice from the Placement Agent
to such Offeror Indemnified Party of its election so to assume the defense of
such action and approval by the Offeror Indemnified Party of counsel, the
Placement Agent shall not be liable to such Offeror Indemnified Party under this
Section 9 for any legal or other expenses subsequently incurred by such Offeror
Indemnified Party in connection with the defense thereof unless (i) the Offeror
Indemnified Party shall have employed such counsel in connection with the
assumption of legal defenses in accordance with the proviso in the preceding
sentence (it being understood, however, that the Placement Agent shall not be
liable for the expenses of more than one separate counsel representing the
Offeror Indemnified Parties who are parties to such action), or (ii) the
Placement Agent shall not have employed counsel reasonably satisfactory to the
Offeror Indemnified Party to represent the Offeror Indemnified Party within a
reasonable time after notice of commencement of the action, in each of which
cases the fees and expenses of counsel shall be at the expense of the Placement
Agent.
9.3. CONTRIBUTION.
(a) If the indemnification provided for in this Section 9 is
required by its terms, but is for any reason held to be unavailable to or
otherwise insufficient to hold harmless a Purchaser Indemnified Party under
Section 9.1(a) in respect of any losses, claims, damages, liabilities or
expenses referred to herein or therein, then the Offerors shall contribute to
the amount paid or payable by such Purchaser Indemnified Party as a result of
any losses, claims, damages, liabilities or
21
<PAGE> 22
expenses referred to herein (i) in such proportion as is appropriate to reflect
the relative benefits received by the Offerors and the Placement Agent from the
offering of such Capital Securities, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Offerors and the Placement Agent in
connection with the statements or omissions or inaccuracies in the
representations and warranties herein or other breaches which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations.
(b) If the indemnification provided for in this Section 9 is
required by its terms, but is for any reason held to be unavailable to or
otherwise insufficient to hold harmless an Offeror Indemnified Party under
Section 9.1(b) in respect of any losses, claims, damages, liabilities or
expenses referred to herein or therein, then the Placement Agent shall
contribute to the amount paid or payable by such Offeror Indemnified Party as a
result of any losses, claims, damages, liabilities or expenses referred to
herein (i) in such proportion as is appropriate to reflect the relative benefits
received by the Offerors and the Placement Agent from the offering of such
Capital Securities, or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Offerors and the Placement Agent in connection with the
statements or omissions or inaccuracies in the representations and warranties
herein or other breaches which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
(c) The respective relative benefits received by the Offerors
and the Placement Agent shall be deemed to be in the same proportion, in the
case of the Offerors, as the total price paid to the Offerors for the Capital
Securities sold by the Offerors to the Purchasers (net of the compensation paid
to the Placement Agent hereunder, but before deducting expenses), and in the
case of the Placement Agent, as the compensation received by it bears to the
total of such amounts paid to the Offerors and received by the Placement Agent
as compensation. The relative fault of the Offerors and the Placement Agent
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged untrue
statement of a material fact or the inaccurate or the alleged inaccurate
representation and/or warranty relates to information supplied by the Offerors
or the Placement Agent and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 9.2, any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any action or claim. The provisions set forth in Section 9.2 with respect to
notice of commencement of any action shall apply if a claim for contribution is
made under this Section 9.3; provided, however, that no additional notice shall
be required with respect to any action for which notice has been given under
Section 9.2 for purposes of indemnification. The Offerors and the Placement
Agent agree that it would not be just and equitable if contribution pursuant to
this Section 9.3 were determined by pro rata allocation or by any other method
of allocation that does not take account of the equitable considerations
referred to in this Section 9.3. The amount paid or payable by a Purchaser
Indemnified Party or Offeror Indemnified Party, as the case may be, as a result
of the losses, claims, damages, liabilities or expenses referred to in this
Section 9.3 shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Purchaser
Indemnified Party or Offeror Indemnified Party, as the case may be, in
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<PAGE> 23
connection with investigating or defending any such action or claim. In no event
shall the liability of the Placement Agent hereunder be greater in amount than
the dollar amount of the compensation (net of payment of all expenses) received
by the Placement Agent upon the sale of the Capital Securities giving rise to
such indemnification obligation. No person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not found guilty of
such fraudulent misrepresentation.
9.4. ADDITIONAL REMEDIES. The indemnity and contribution agreements
contained in this Section 9 are in addition to any liability that the Offerors
may otherwise have to any Purchaser Indemnified Party.
SECTION 10 RIGHTS AND RESPONSIBILITIES OF PLACEMENT AGENT
10.1. RESPONSIBILITIES FOR MEMORANDUM. The Offerors have prepared the
Memorandum and the Placement Agent shall not be deemed responsible for any
information contained therein (except for the Placement Agent Information). The
Placement Agent undertakes no responsibility of any kind on behalf of any
Purchaser (including fiduciary responsibility) and the Placement Agent is not
acting on behalf of any Purchaser.
10.2. RELIANCE. In performing its duties under this Agreement, the
Placement Agent shall be entitled to rely upon any notice, signature or writing
which it shall in good faith believe to be genuine and to be signed or presented
by a proper party or parties. The Placement Agent may rely upon any opinions or
certificates or other documents delivered by the Offerors or their counsel or
designees to either the Placement Agent or the Purchasers.
10.3. RIGHTS OF PLACEMENT AGENT. In connection with the performance of
its duties under this Agreement, the Placement Agent shall not be liable for any
error of judgment or any action taken or omitted to be taken unless the
Placement Agent was grossly negligent or engaged in willful misconduct in
connection with such performance or non-performance. No provision of this
Agreement shall require the Placement Agent to expend or risk its own funds or
otherwise incur any financial liability on behalf of the Purchasers in
connection with the performance of any of their duties hereunder. The Placement
Agent shall be under no obligation to exercise any of the rights or powers
vested in it by this Agreement.
SECTION 11 MISCELLANEOUS
11.1. NOTICES. Prior to the Closing, and thereafter with respect to
matters pertaining to this Agreement only, all notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier or overnight air courier guaranteeing next
day delivery:
if to the Placement Agent, to:
First Tennessee Capital Markets
845 Crossover Lane, Suite 150
Memphis, Tennessee 38117
23
<PAGE> 24
Telecopier: (901) 766-4706
Telephone: (800) 456-5460
Attention: Gary A. Simanson
with a copy to:
Lewis, Rice & Fingersh, L.C.
500 North Broadway, Suite 2000
St. Louis, Missouri 63102
Telecopier: (314) 241-6056
Telephone: (314) 444-7600
Attn: Thomas C. Erb, Esq.
if to the Offerors, to:
VIB Corp
1498 Main Street
El Centro, California 92243
Telecopier: (760) 337-3229
Telephone: (760) 337-3200
Attn: Harry G. Gooding, III
with a copy to:
Horgan, Rosen, Beckham & Coren, L.L.P.
21700 Oxnard Street, Suite 1400
Woodland Hills, California 91367
Telecopier: (818) 340-6190
Telephone: (818) 340-6100
All such notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; the next business day after being telecopied; or the next business day
after timely delivery to a courier, if sent by overnight air courier
guaranteeing next day delivery. From and after the Closing, the foregoing notice
provisions shall be superseded by any notice provisions of the Operative
Documents under which notice is given. The Placement Agent, the Company, and
their respective counsel, may change their respective notice addresses from time
to time by written notice to all of the foregoing persons.
11.2. PARTIES IN INTEREST, SUCCESSORS AND ASSIGNS. This Agreement is
made solely for the benefit of the Placement Agent, the Purchasers and the
Offerors and any person controlling the Placement Agent, the Purchasers or the
Offerors and their respective executors, administrators, successors and assigns;
and no other person shall acquire or have any right under or by virtue of this
Agreement. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties, including without limitation and
without the need for an express assignment, subsequent holders of Capital
Securities.
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<PAGE> 25
11.3. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
11.4. HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
11.5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAWS PERTAINING TO CONFLICTS
OF LAWS) OF THE STATE OF CALIFORNIA.
11.6. ENTIRE AGREEMENT. This Agreement, together with the other
Operative Documents and the Engagement Letter by and between the Offerors and
the Placement Agent, dated November 2, 1998 (the "Engagement Letter"), is
intended by the parties as a final expression of their agreement and intended to
be a complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and therein.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein and therein. This Agreement, together with
the other Operative Documents, supersedes all prior agreements and
understandings between the parties with respect to such subject matter;
provided, however, that this Agreement does not supersede the terms of the
Engagement Letter and the terms hereof are supplementary to the terms of the
Engagement Letter.
11.7. SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected, it
being intended that all of the Placement Agent's and the Purchasers' rights and
privileges shall be enforceable to the fullest extent permitted by law.
11.8. PUBLIC DISCLOSURE. The Offerors each covenant that it will take
all reasonable actions necessary to keep the Placement Agent's and each
Purchaser's identity confidential, and shall not disclose the Purchaser's
identity as an investor in the offering contemplated hereby in any public
announcement, governmental filing or otherwise without the Purchaser's prior
written consent unless such disclosure is compelled by law or by order of a
court of competent jurisdiction, in which case prior to making such disclosure
the Offerors shall give written notice to the Placement Agent and the Purchaser
describing in all reasonable detail the proposed content of such disclosure and
will afford the Placement Agent and the Purchaser in good faith an opportunity
to suggest modifications in the form and substance of such proposed disclosure.
11.9. SURVIVAL. The Placement Agent and the Offerors, respectively,
agree that the representations, warranties and agreements made by each of them
in this Agreement and in any certificate or other instrument delivered pursuant
hereto shall remain in full force and effect and shall survive the delivery and
payment for the Capital Securities.
[SIGNATURES APPEAR ON NEXT PAGE.]
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If this Agreement is satisfactory to you, please so indicate by signing
the acceptance of this Agreement and deliver such counterpart to the Offerors
whereupon this Agreement will become binding between us in accordance with its
terms.
Very truly yours,
VIB CORP
By: /s/ Harry G. Gooding, III
-------------------------------------
Name: Harry G. Gooding, III
Title: Executive Vice President/Chief
Financial Officer
VALLEY CAPITAL TRUST
By: /s/ Harry G. Gooding, III
-------------------------------------
Name: Harry G. Gooding, III
Title: Administrative Trustee
FIRST TENNESSEE CAPITAL MARKETS,
A DIVISION OF FIRST TENNESSEE BANK, N.A.,
AS PLACEMENT AGENT (ON BEHALF OF ITSELF AND
THE PURCHASERS)
By: /s/ Gary Simanson
-------------------------------
Name: Gary Simanson
Title: Senior Vice President
26
<PAGE> 1
EXHIBIT 4.1
VIB CORP
AND
WILMINGTON TRUST COMPANY
AS TRUSTEE
----------------
JUNIOR SUBORDINATED INDENTURE
DATED AS OF FEBRUARY 5, 1999
UP TO $23,712,000
AGGREGATE PRINCIPAL AMOUNT OF
9.00% JUNIOR SUBORDINATED DEBENTURES
<PAGE> 2
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
2
<PAGE> 3
NOTE: THIS CROSS-REFERENCE TABLE DOES NOT CONSTITUTE PART OF THIS INDENTURE AND
SHALL NOT AFFECT THE INTERPRETATION OF ANY OF ITS TERMS.
3
<PAGE> 4
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
4
<PAGE> 5
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 1498
Main Street, El Centro, California 92243 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, Richard D. Foss, an individual, Dennis L. Kern, an individual, and
Harry G. Gooding, 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
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890.
"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 Section 502, (iii) 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/ DENNIS L. KERN
------------------------------------
[Seal] Name: Dennis L. Kern
Title: President and CEO
WILMINGTON TRUST COMPANY
By: /s/ JAMES P. LAWLER
------------------------------------
[Seal] Name: James P. Lawler
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 Dennis L.
Kern, 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/ JAMIE E. DOEBLER
-------------------------------------
STATE OF DELAWARE Section
Section
COUNTY OF NEW CASTLE Section
On the 3rd day of February, 1999, before me personally came James P.
Lawler, 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/ SCOTT E. KREPS
--------------------------------
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EXHIBIT 4.4
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
VIB CORP, AS DEPOSITOR
AND
WILMINGTON TRUST COMPANY, AS PROPERTY TRUSTEE
AND
RICHARD D. FOSS,
HARRY G. GOODING, III,
AND
DENNIS L. KERN, AS ADMINISTRATIVE TRUSTEES
AND
THE SEVERAL HOLDERS (AS DEFINED HEREIN)
DATED AS OF FEBRUARY 5, 1999
VALLEY CAPITAL TRUST
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
Article I. - DEFINED TERMS........................................................................................1
Section 1.01 DEFINITIONS................................................................................1
Article II - ESTABLISHMENT OF THE TRUST...........................................................................7
Section 2.01 NAME...................................................................................7
Section 2.02 OFFICE OF THE PROPERTY TRUSTEE; PRINCIPAL PLACE OF BUSINESS............................7
Section 2.03 INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL
EXPENSES...............................................................................8
Section 2.04 ISSUANCE OF THE CAPITAL SECURITIES.....................................................8
Section 2.05 ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION AND
PURCHASE OF DEBENTURES.................................................................8
Section 2.06 DECLARATION OF TRUST...................................................................8
Section 2.07 AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.......................................9
Section 2.08 ASSETS OF TRUST.......................................................................11
Section 2.09 TITLE TO TRUST PROPERTY...............................................................11
Article III - PAYMENT ACCOUNT....................................................................................11
Section 3.01 PAYMENT ACCOUNT.......................................................................11
Article IV - DISTRIBUTIONS; REDEMPTION...........................................................................12
Section 4.01 DISTRIBUTIONS.........................................................................12
Section 4.02 REDEMPTION............................................................................12
Section 4.03 SUBORDINATION OF COMMON SECURITIES....................................................14
Section 4.04 PAYMENT PROCEDURES....................................................................14
Section 4.05 TAX RETURNS AND REPORTS...............................................................14
Section 4.06 PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST...........................................15
Section 4.07 PAYMENTS UNDER INDENTURE..............................................................15
Article V - TRUST SECURITIES CERTIFICATES........................................................................15
Section 5.01 INITIAL OWNERSHIP.....................................................................15
Section 5.02 THE TRUST SECURITIES CERTIFICATES.....................................................15
Section 5.03 DELIVERY OF TRUST SECURITIES CERTIFICATES.............................................16
Section 5.04 GLOBAL CAPITAL SECURITY ..............................................................16
Section 5.05 REGISTRATION OF TRANSFER AND EXCHANGE GENERALLY;
CERTAIN TRANSFERS AND EXCHANGES; CAPITAL SECURITIES
CERTIFICATES; SECURITIES ACT LEGENDS..................................................17
Section 5.06 MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES..........................................................................20
Section 5.07 PERSONS DEEMED SECURITYHOLDERS........................................................21
Section 5.08 ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES................................21
Section 5.09 MAINTENANCE OF OFFICE OR AGENCY.......................................................21
Section 5.10 APPOINTMENT OF PAYING AGENT...........................................................21
Section 5.11 OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR...........................................21
Section 5.12 RIGHTS OF SECURITYHOLDERS.............................................................22
Article VI - ACTS OF SECURITYHOLDERS; MEETINGS; VOTING...........................................................23
Section 6.01 LIMITATIONS ON VOTING RIGHTS..........................................................23
Section 6.02 NOTICE OF MEETINGS....................................................................24
Section 6.03 MEETINGS OF CAPITAL SECURITYHOLDERS...................................................24
Section 6.04 VOTING RIGHTS.........................................................................24
Section 6.05 PROXIES, ETC..........................................................................24
Section 6.06 SECURITYHOLDER ACTION BY WRITTEN CONSENT..............................................24
Section 6.07 RECORD DATE FOR VOTING AND OTHER PURPOSES.............................................25
Section 6.08 ACTS OF SECURITYHOLDERS...............................................................25
Section 6.09 INSPECTION OF RECORDS.................................................................26
Article VII - REPRESENTATIONS AND WARRANTIES.....................................................................26
</TABLE>
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<TABLE>
<S> <C>
Section 7.01 REPRESENTATIONS AND WARRANTIES OF THE BANK AND THE
PROPERTY TRUSTEE......................................................................26
Section 7.02 REPRESENTATIONS AND WARRANTIES OF PARENT..............................................26
Article VIII - THE TRUSTEES......................................................................................27
Section 8.01 CERTAIN DUTIES AND RESPONSIBILITIES...................................................27
Section 8.02 CERTAIN NOTICES.......................................................................28
Section 8.03 CERTAIN RIGHTS OF PROPERTY TRUSTEE....................................................28
Section 8.04 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES................................30
Section 8.05 MAY HOLD SECURITIES...................................................................30
Section 8.06 COMPENSATION; INDEMNITY; FEES.........................................................30
Section 8.07 CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF
TRUSTEES..............................................................................30
Section 8.08 CONFLICTING INTERESTS.................................................................31
Section 8.09 CO-TRUSTEES AND SEPARATE TRUSTEE......................................................31
Section 8.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.....................................32
Section 8.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR................................................33
Section 8.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF A TRUSTEE.................................................................33
Section 8.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR
OR TRUST..............................................................................33
Section 8.14 REPORTS BY PROPERTY TRUSTEE...........................................................34
Section 8.15 REPORTS TO THE PROPERTY TRUSTEE.......................................................34
Section 8.16 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT......................................34
Section 8.17 NUMBER OF TRUSTEES....................................................................34
Section 8.18 DELEGATION OF POWER...................................................................35
Section 8.19 VOTING................................................................................35
Article IX - TERMINATION AND LIQUIDATION.........................................................................35
Section 9.01 TERMINATION UPON EXPIRATION DATE......................................................35
Section 9.02 EARLY TERMINATION.....................................................................35
Section 9.03 TERMINATION...........................................................................35
Section 9.04 LIQUIDATION...........................................................................36
Section 9.05 MERGER, CONSOLIDATION, AMALGAMATION OR REPLACEMENT OF
THE TRUST.............................................................................37
Article X - MISCELLANEOUS PROVISIONS.............................................................................37
Section 10.01 EXPENSE AGREEMENT.....................................................................37
Section 10.02 LIMITATION OF RIGHTS OF SECURITYHOLDERS...............................................38
Section 10.03 AMENDMENT.............................................................................38
Section 10.04 SEVERABILITY..........................................................................39
Section 10.05 GOVERNING LAW. .......................................................................39
Section 10.06 PAYMENTS DUE ON NON-BUSINESS DAY......................................................39
Section 10.07 SUCCESSORS............................................................................39
Section 10.08 HEADINGS..............................................................................39
Section 10.09 REPORTS, NOTICES AND DEMANDS..........................................................39
Section 10.10 AGREEMENT NOT TO PETITION.............................................................39
Section 10.11 TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT................................40
Section 10.12 RIGHTS UNDER INDENTURE................................................................40
Section 10.13 EFFECTIVENESS.........................................................................40
Section 10.14 INTENTION OF THE PARTIES..............................................................40
Section 10.15 COUNTERPARTS..........................................................................40
Section 10.16 ACCEPTANCE OF TERMS OF TRUST AGREEMENT GUARANTEE
AND INDENTURE.........................................................................40
</TABLE>
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<PAGE> 4
EXHIBITS
<TABLE>
<S> <C>
Original Trust Agreement ................................................................................A
Form of Common Securities Certificate....................................................................B
Form of Capital Securities Certificate...................................................................C
</TABLE>
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<PAGE> 5
AMENDED AND RESTATED TRUST AGREEMENT, dated as of February 5, 1999, among
(i) VIB Corp, a California corporation (including any successors or assigns the
"Depositor" or "Parent"), (ii) Wilmington Trust Company, a banking corporation
duly organized and existing under the laws of Delaware, as trustee (the
"Property Trustee" and, in its separate corporate capacity and not in its
capacity as Property Trustee, the "Bank"), (iii) Richard D. Foss, an individual,
Dennis L. Kern, an individual, and Harry G. Gooding, III, an individual, each of
whose address is c/o VIB Corp, 1498 Main Street, El Centro, California 92243
(each, an "Administrative Trustee" and collectively, the "Administrative
Trustees") (the Property Trustee and the Administrative Trustees being referred
to collectively as the "Trustees") and (iv) the several Holders, as hereinafter
defined.
W I T N E S S E T H:
WHEREAS, the Depositor, the Property Trustee and the Administrative
Trustees have heretofore duly declared and established a business trust pursuant
to the Delaware Business Trust Act by the entering into of that certain Trust
Agreement, dated as of December 10, 1998 (the "Original Trust Agreement"), and
by the execution and filing by the Trustees with the Secretary of State of the
State of Delaware of the Certificate of Trust, filed on December 10, 1998, the
form of which is attached as Exhibit A; and
WHEREAS, the Depositor and the Property Trustee desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the acquisition by the Trust (as defined
herein) from the Depositor of all of the right, title and interest in the
Debentures (as defined herein), (ii) the issuance of the Common Securities (as
defined herein) by the Trust to the Depositor and (iii) the issuance and sale of
the Capital Securities (as defined herein) by the Trust pursuant to the
Placement Agreement (as defined herein).
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other party and
for the benefit of the Security holders (as defined herein), hereby amends and
restates the Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I.
DEFINED TERMS
Section 1.01 DEFINITIONS. For all purposes of this Trust Agreement, except
as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings
assigned to them therein;
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(c) unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may
be, of this Trust Agreement; and
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to
any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"Additional Sums" has the meaning specified in Section 1005 of the
Indenture.
"Administrative Trustee" means each of the individuals identified as an
"Administrative Trustee" in the preamble to this Trust Agreement, solely in his
capacity as Administrative Trustee of the Trust formed and continued hereunder
and not in his individual capacity, or such Administrative Trustee's successor
in interest in such capacity, or any successor Trustee appointed as herein
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 Capital Security, the rules and procedures of the Clearing
Agency for such Capital Security, in each case to the extent applicable to such
transaction and as in effect from time to time.
"Bank" has the meaning specified in the preamble to this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in the
premises judging such Person a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement,
adjudication or composition of or in respect of such Person under
any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or appointing a receiver,
liquidator, assignee, trustee sequestrator or other similar official
of such Person or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
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<PAGE> 7
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or of the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it
of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the
filing of such petition or to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator or similar official of
such Person or of any substantial part of its property or the
admission by it in writing of its inability to pay its debts
generally as they become due and its willingness to be adjudicated
as a bankrupt, or the making by it of an assignment for the benefit
of creditors, or the taking of action by such Person in furtherance
of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.10.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Depositor to have been duly adopted by the
Depositor's Board of Directors or a duly authorized committee thereof or
officers of the Depositor 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 Property Trustee.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a day
on which banking institutions in the City of New York or Wilmington, Delaware
are authorized or obligated by law or executive order to remain closed, or (c) a
day on which the Property Trustee's Corporate Trust Office or the Debenture
Trustee's Corporate Trust Office is closed for business.
"Capital Securities Certificate" means a certificate evidencing ownership
of Capital Securities, substantially in the form attached as Exhibit C.
"Capital Security" or "Capital Securities" means undivided beneficial
interests in the assets of the Trust, having a Liquidation Amount of $1,000 per
Capital Security and having rights provided therefor in this Trust Agreement,
including the right to receive Distributions and a Liquidation Distribution as
provided herein.
"Certificate Depository Agreement" means the agreement among the Trust,
the Depositor and The Depository Trust Company, as the initial Clearing Agency,
dated as of the Closing Date, relating to the Capital Securities Certificates.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. The
Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
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<PAGE> 8
"Closing Date" means the later of February 5, 1999, or the date of
execution and delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Securities Certificate" means a certificate evidencing ownership
of the Common Securities, substantially in the form attached as Exhibit B.
"Common Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $1,000 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Corporate Trust Office" means the principal office of either the Property
Trustee or the Debenture Trustee. So long as Wilmington Trust Company serves in
both capacities, such principal office is located at Rodney Square North, 1100
North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration.
"Debenture Event of Default" means an "Event of Default" as defined in the
Indenture.
"Debenture Redemption Date" means the "Redemption Date" as defined in the
Indenture.
"Debenture Trustee" means Wilmington Trust Company, a banking corporation
duly organized and existing under the laws of the State of Delaware, or any
successor thereto.
"Debentures" means the up to $23,712,000 aggregate principal amount of the
Parent's 9.00% Junior Subordinated Debentures, issued pursuant to the Indenture.
"Definitive Capital Securities Certificates" means either or both (as the
context requires) of: (i) a Capital Securities Certificate issued as a Global
Capital Securities Certificate as provided in Section 5.02(b); and (ii) Capital
Securities Certificates issued in certificated, fully registered form as
provided in Section 5.02(c).
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801, et seq., as it may be amended from time to time.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement and includes VIB Corp, in its capacity as Holder of the Common
Securities.
"Direct Action" has the meaning specified in Section 5.12(c).
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust Securities
as provided in Section 4.01.
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<PAGE> 9
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall 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):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust or the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of
such default for a period of 30 days (except during an Extension
Period, as defined herein); or
(c) default by the Trust or the Property Trustee in the payment of any
Redemption Price of any Trust Security when it becomes due and
payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Trustees in this Trust Agreement
(other than a covenant or warranty a default in the performance of
which or the breach of which is dealt with in clause (b) or (c),
above) and continuation of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to
the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Capital Securities a
written notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor
Property Trustee within 60 days thereof.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Parent and the Trust, substantially in the form attached as Exhibit
A to the Indenture, as amended from time to time.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Global Capital Securities Certificate" means a Capital Securities
Certificate, evidencing ownership of Global Capital Securities.
"Global Capital Security" means a Capital Security, the ownership and
transfers of which shall be made through book-entries by a Clearing Agency as
described in Section 5.04.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Parent and Wilmington Trust Company, a banking corporation, as trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the Holders of the Capital Securities, as amended from time to
time.
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<PAGE> 10
"Indenture" means the Junior Subordinated Indenture, dated as of February
5, 1999, between the Parent and the Debenture Trustee, as trustee, as amended or
supplemented from time to time.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to the principal amount of
Debentures to be contemporaneously redeemed in accordance with the Indenture and
the proceeds of which will be used to pay the Redemption Price of such Trust
Securities, (b) with respect to a distribution of Debentures to Holders of Trust
Securities in connection with a dissolution or liquidation of the Trust,
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Debentures are distributed, and (c)
with respect to any distribution of Additional Amounts to Holders of Trust
Securities, Debentures having a principal amount equal to the Liquidation Amount
of the Trust Securities in respect of which such distribution is made.
"Liquidation Amount" means the stated amount of $1,000 per Trust Security.
"Liquidation Date" means the date of dissolution, winding-up or
termination and liquidation of the Trust pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in Section 9.04(d).
"Majority in Liquidation Amount of The Capital Securities" or "Majority in
Liquidation Amount of The Common Securities" means, except as provided by the
Trust Indenture Act, Capital Securities or Common Securities, as the case may
be, representing more than 50% of the aggregate Liquidation Amount of all then
Outstanding Capital Securities or Common Securities, as the case may be.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the Chief Executive Officer, the President
or a Vice President, and by the Chief Financial Officer, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to the appropriate Trustee.
One of the officers signing an Officers' Certificate given pursuant to Section
8.16 shall be the principal executive, financial investment or accounting
officer of the Depositor. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Trust Agreement
shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions 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;
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<PAGE> 11
(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.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Depositor, and may be an
employee of any thereof, and who shall be acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding," when used with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed,
authenticated and delivered under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Administrative Trustees
or delivered to the Administrative Trustees for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent; provided that, if such Trust Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(c) Trust Securities that have been paid or in exchange for or in lieu
of which other Capital Securities have been executed, authenticated
and delivered pursuant to this Trust Agreement;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Capital Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Capital
Securities owned by the Depositor, any Trustee or any Affiliate of the Depositor
or any Trustee shall be disregarded and deemed not to be Outstanding, except
that (a) in determining whether any Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Capital Securities which such Trustee knows to be so owned shall be so
disregarded and (b) the foregoing shall not apply at any time when all of the
Outstanding Capital Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Capital Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Administrative Trustees the pledgee's right so to act
with respect to such Capital Securities and that the pledgee is not the
Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Global Capital
Securities Certificate as reflected in the records of the Clearing Agency or, if
a Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining an account with such Clearing Agency (directly or
indirectly, in accordance with the rules of such Clearing Agency).
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<PAGE> 12
"Parent" has the meaning specified in the preamble to this Trust
Agreement.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with the Bank in its corporate trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee shall
make payments to the Securityholders in accordance with Section 4.01.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Placement Agent" means First Tennessee Capital Markets.
"Property Trustee" means the commercial bank or trust company identified
as the "Property Trustee" in the preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust heretofore formed and continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor property trustee appointed as herein provided.
"Purchase Terms Agreement" means the Purchase Terms Agreement, dated
February 5, 1999 among VIB Corp, Valley Capital Trust, and the Placement Agent.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Redemption Date pursuant to the
Indenture, shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any date fixed for redemption of
any Trust Security, the Liquidation Amount of such Trust Security, plus
accumulated and unpaid Distributions up to, but excluding such date, paid by the
Depositor upon the concurrent redemption of a Like Amount of Debentures
allocated on a pro rata basis (based on Liquidation Amounts) among the Trust
Securities.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Restricted Capital Securities" means all Capital Securities required
pursuant to Section 5.04(b) to bear a Restricted Capital Securities Legend on
the Restricted Capital Securities Certificate. Such term includes the Global
Capital Securities Certificate.
"Restricted Capital Securities Certificate" means a certificate evidencing
ownership of Restricted Capital Securities.
"Restricted Capital Securities Legend" means a legend substantially in the
form of the legend required in Section 5.05(c).
"Securities Act" means the Securities Act of 1933, as amended.
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<PAGE> 13
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.05(a).
"Securityholder" or "Holder" means a Person in whose name a Trust Security
or Securities is registered in the Securities Register; any such Person shall be
deemed to be a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Trust" means Valley Capital Trust, the Delaware business trust created
and continued hereby and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including all exhibits hereto, including, for all purposes of
this Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
"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 Property" means (a) the Debentures, (b) any cash on deposit in, or
owing to, the Payment Account, (c) all proceeds and rights in respect of the
foregoing and any other property and assets for the time being held or deemed to
be held by the Property Trustee pursuant to the trusts of this Trust Agreement
and (d) the rights of the Property Trustee under the Guarantee.
"Trust Security" means any one of the Common Securities or the Capital
Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
"Trustees" has the meaning specified in the preamble to this Trust
Agreement.
ARTICLE II
ESTABLISHMENT OF THE TRUST
Section 2.01 NAME. The Trust created and continued hereby shall be known
as "Valley Capital Trust," as such name may be modified from time to time by the
Administrative Trustees following written notice to the Holders of Trust
Securities and the other Trustees, in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.
Section 2.02 OFFICE OF THE PROPERTY TRUSTEE; PRINCIPAL PLACE OF BUSINESS.
The office of the Property Trustee in the State of Delaware is at
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Rodney Square North, 1100 North Market Street, Wilmington ,Delaware 19890-0001,
Attention: Corporate Trust Administration, or such other address in the State of
Delaware as the Property Trustee may designate by written notice to the
Securityholders and the Depositor. The principal place of business of the Trust
is c/o VIB Corp, 1498 Main Street, El Centro, California 92243.
Section 2.03 INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL
EXPENSES. The Property Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
Section 2.04 ISSUANCE OF THE CAPITAL SECURITIES.
(a) Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.02 of this Trust Agreement and deliver in accordance
with the Purchase Terms Agreement one or more Capital Securities Certificates,
registered in the name of the Persons entitled thereto, in an aggregate amount
of 20,000 Capital Securities having an aggregate Liquidation Amount of
$20,000,000 against receipt of the aggregate purchase price of such Capital
Securities of $20,000,000 which amount such Administrative Trustee shall
promptly deliver to the Property Trustee.
(b) If the Placement Agent exercises its option (as described in the
Purchase Terms Agreement), then an Administrative Trustee, on behalf of the
Trust, shall execute in accordance with Section 5.02, and deliver in accordance
with the Purchase Terms Agreement, additional Capital Securities Certificates,
registered in the name of the Persons entitled thereto, in an aggregate amount
of up to 3,000 Capital Securities having an aggregate Liquidation Amount of up
to $3,000,000 against receipt of the aggregate purchase price of such Capital
Securities equal to the product of $1,000 multiplied by the number of Capital
Securities delivered pursuant to the option, which amount such Administrative
Trustee shall promptly deliver to the Property Trustee. Upon order by an
Administrative Trustee, such Capital Securities Certificates shall be
authenticated by the Property Trustee.
Section 2.05 ISSUANCE OF THE COMMON SECURITIES; SUBSCRIPTION AND PURCHASE
OF DEBENTURES.
(a) Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.02 of this Trust Agreement and deliver to the
Depositor, Common Securities Certificates registered in the name of the
Depositor, in an aggregate amount of 619 Common Securities having an aggregate
Liquidation Amount of $619,000 against payment by the Depositor of such amount.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase from the Depositor, Debentures, registered in
the name of the Property Trustee on behalf of the Trust and having an aggregate
principal amount equal to $619,000 and, in satisfaction of the purchase price
for
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such Debentures, the Property Trustee, on behalf of the Trust, shall deliver to
the Depositor the sum of $619,000.
(b) If the Placement Agent exercises its option, then an Administrative
Trustee, on behalf of the Trust, shall execute in accordance with Section 5.02,
and deliver to the Depositor, Common Securities Certificates, registered in the
name of the Depositor, in an aggregate amount of up to 93 Common Securities
having an aggregate Liquidation Amount of up to $93,000 against payment by the
Depositor of an amount equal to the product of $1,000 multiplied by the number
of additional Common Securities purchased by the Depositor. Contemporaneously
therewith, an Administrative Trustee, on behalf of the Trust, shall subscribe to
and purchase from the Depositor, Debentures, registered in the name of the
Property Trustee on behalf of the Trust and having an aggregate principal amount
of up to $93,000 and, in satisfaction of the purchase price of such Debentures,
the Property Trustee, on behalf of the Trust, shall deliver to the Depositor an
amount equal to the sum of the amounts received from one of the Administrative
Trustees pursuant to the first sentence of this Section 2.05(b) and the second
sentence of Section 2.04.
Section 2.06 DECLARATION OF TRUST. The exclusive purposes and functions of
the Trust are (a) to issue and sell Trust Securities and use the proceeds from
such sale to acquire the Debentures, and (b) to engage in those activities
necessary, convenient or incidental thereto. The Depositor hereby appoints the
Trustees as trustees of the Trust, to have all the rights, powers and duties set
forth herein, and the Trustees hereby accept such appointment. The Property
Trustee hereby declares that it will hold the Trust Property in trust upon and
subject to the conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrative Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust.
Section 2.07 AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.
(a) The Property Trustee and the Administrative Trustees shall conduct
the affairs of the Trust in accordance with the terms of this Trust Agreement.
Subject to the limitations set forth in paragraph (b) of this Section, and in
accordance with the following provisions (i) and (ii), the Property Trustee and
the Administrative Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(i) As among the Trustees, the Administrative Trustees shall have
the power, duty and authority to act on behalf of the Trust with respect
to the following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Expense Agreement
and the Certificate Depository Agreement and such other agreements
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as may be necessary or desirable in connection with the purposes and
function of the Trust;
(C) assisting in any registration of the Capital Securities
under state securities or blue sky laws;
(D) assisting in the approval for trading of the Capital
Securities upon the PORTAL System and the preparation and filing of
any periodic and other reports and other documents pursuant to the
foregoing;
(E) the sending of notices (other than notices of default)
and other information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with this Trust
Agreement;
(F) the consent to the appointment of a Paying Agent,
authenticating agent and Securities Registrar in accordance with
this Trust Agreement (which consent shall not be unreasonably
withheld);
(G) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;
(H) unless otherwise determined by the Property Trustee or
the Holders of at least a majority of Liquidation Amount of the
Capital Securities, or as otherwise required by the Delaware
Business Trust Act, to execute on behalf of the Trust (either acting
alone or together with any or all of the Administrative Trustees)
any documents that the Administrative Trustees have the power to
execute pursuant to this Trust Agreement; and
(I) the taking of any action incidental to the foregoing as
the Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement and
protect and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any such
action on any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect to
the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other
payments made in respect of the Debentures in the Payment Account;
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(D) the distribution through the Paying Agent of amounts
distributable to the Securityholders in respect of the Trust
Securities;
(E) registering transfers of the Trust Securities in
accordance with this Trust Agreement;
(F) the exercise of all of the rights, powers and privileges
of a holder of the Debentures;
(G) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
(H) the distribution of the Trust Property in accordance
with the terms of this Trust Agreement;
(I) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;
(J) after an Event of Default (other than under paragraph
(b), (c), (d) or (e) of the definition of such term if such Event of
Default is by or with respect to the Property Trustee, in which case
the Administrative Trustees shall have such power, duty and
authority) the taking of any action incidental to the foregoing as
the Property Trustee may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement and
protect and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any such
action on any particular Securityholder); and
(K) any of the duties, liabilities, powers or the authority
of the Administrative Trustees set forth in Section 2.7(a)(i)(E) and
(I) herein; and in the event of a conflict between the action of the
Administrative Trustees and the action of the Property Trustee, the
action of the Property Trustee shall prevail.
(b) So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees and the Trust shall not (i) acquire any
investments or engage in any activities not authorized by this Trust Agreement,
(ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise
dispose of any of the Trust Property or interests therein, including to
Securityholders, except as expressly provided herein, (iii) take any action that
would result in more than an insubstantial risk that the Trust would fail or
cease to qualify as a "grantor trust" for United States Federal income tax
purposes, (iv) incur any indebtedness for borrowed money or issue any other debt
or (v) take or consent to any action that would result in the placement of a
Lien on any of the Trust Property. The Administrative Trustees shall defend all
claims and demands of all Persons at any time claiming any Lien on any of the
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Trust Property adverse to the interest of the Trust or the Securityholders in
their capacity as Securityholders.
(c) In connection with the issuance and sale of the Capital Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects as actions of
the Trust):
(i) to prepare preliminary and final Offering Memoranda with
respect to the transactions contemplated by the Purchase Terms Agreement;
(ii) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Capital Securities and to
do any and all such acts, other than actions which must be taken by or on
behalf of the Trust, and advise the Trustees of actions they must take on
behalf of the Trust, and prepare for execution and filing any documents to
be executed and filed by the Trust or on behalf of the Trust, as the
Depositor deems necessary or advisable in order to comply with the
applicable laws of any such States and in connection with the sale of the
Capital Securities;
(iii) to negotiate the terms of, and execute and deliver, the
Purchase Terms Agreement providing for the sale of the Capital Securities;
and
(iv) to take any other actions necessary or desirable to carry out
any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not (i) be deemed to be an "investment
company" required to be registered under the Investment Company Act, or (ii)
fail or cease to qualify as a grantor trust for United States Federal income tax
purposes and so that the Debentures will be treated as indebtedness of the
Depositor for United States Federal income tax purposes. In this connection, the
Depositor and the Administrative Trustees are authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust or this Trust
Agreement, that each of the Depositor and the Administrative Trustees determines
in its discretion to be necessary or desirable for such purposes as long as such
action does not adversely affect in any material respect the interests of the
Holders of the Capital Securities. In no event shall the Trustees be liable to
the Trust or the Holders for any failure to comply with this section that
results from a change in law or regulation or in the interpretation thereof.
(e) All prior actions taken by the Administrative Trustees on behalf of
Parent in furtherance of Parent's powers, duties and obligations under the
Original Trust Agreement are hereby ratified and affirmed as actions of the
Trust.
Section 2.08 ASSETS OF TRUST. The assets of the Trust shall consist of the
Trust Property.
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Section 2.09 TITLE TO TRUST PROPERTY. Legal title to all Trust Property
shall be vested at all times in the Property Trustee (in its capacity as such)
and shall be held and administered by the Property Trustee for the benefit of
the Trust and the Securityholders in accordance with this Trust Agreement.
ARTICLE III
PAYMENT ACCOUNT
Section 3.01 PAYMENT ACCOUNT.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Securityholders and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
DISTRIBUTIONS; REDEMPTION
Section 4.01 DISTRIBUTIONS.
(a) The Trust Securities represent undivided beneficial interests in the
Trust Property, and Distributions (including Additional Amounts) will be made on
the Trust Securities at the rate and on the dates that payments of interest
(including Additional Interest, as defined in the Indenture) are made on the
Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative, and
will accumulate whether or not there are funds of the Trust available for
the payment of Distributions. Distributions shall accumulate from February
5, 1999, and, except in the event (and to the extent) that the Parent
exercises its right to defer interest payments for the Debentures pursuant
to Section 301 of the Indenture (an "Extension Period"), shall be payable
quarterly in arrears on March 31, June 30, September 30, and December 31
of each year, commencing on March 31, 1999. If any date on which
Distributions are otherwise payable on the Trust Securities is not a
Business Day, then the payment of such Distribution shall be made on the
next succeeding day which is a Business Day (and without any additional
distribution or other payment in respect of any such delay) except that,
if such Business Day is in the next succeeding calendar year, payment of
such Distribution shall be made on the immediately preceding Business Day,
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in each case with the same force and effect as if made on the date on
which such payment was originally payable (each date on which
distributions are payable in accordance with this Section 4.01(a), a
"Distribution Date").
(ii) Subject to Section 4.03 hereof, all Distributions will be made
pro rata on each of the Trust Securities. Distributions payable on the
Capital Securities shall be fixed at a rate of 9.00% per annum of the
Liquidation Amount of the Capital Securities. Distributions payable on the
Common Securities shall be fixed at a rate of 9.00% per annum of the
Liquidation Amount of the Common Securities. The amount of Distributions
payable for any full quarter shall be computed on the basis of twelve
30-day months and a 360-day year 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. During any Extension Period with respect to
the Debentures, Distributions on Trust Securities shall be deferred for a
period equal to the Extension Period. The amount of Distributions payable
for any period shall include the Additional Amounts, if any.
(iii) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be deemed payable on
each Distribution Date only to the extent that the Trust has funds
available in the Payment Account for the payment of such Distributions.
(b) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities at the close of business on the relevant
record date, which shall be the fifteenth day of the month in which the relevant
Distribution Date occurs.
Section 4.02 REDEMPTION.
(a) On each Debenture Redemption Date and on the stated maturity of the
Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities subject to approval of the Federal Reserve, if then required under
the applicable capital guidelines or policies of the Federal Reserve, at the
Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee 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 Trust Securities to be redeemed,
at such Holder's address appearing in the Security Register. All notices of
redemption or liquidation shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number or numbers of the Capital Securities
affected;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the aggregate Liquidation Amount of the Trust Securities to be
redeemed;
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(v) that on the Redemption Date the Redemption Price will become
due and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accrue on and after said date; and
(vi) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price shall be payable on each Redemption Date only to the extent
that the Trust has funds available in the Payment Account for the payment of
such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Capital Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 4.02(c), the Property Trustee will
irrevocably deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price and will, so long as the Capital Securities are in
book-entry-only form, irrevocably deposit with the Clearing Agency for the
Capital Securities Funds sufficient to pay the applicable Redemption Price, will
give such Clearing Agency irrevocable instructions and authority to pay the
redemption price to the Holders thereof. If the Capital Securities are no longer
in book-entry-only form, the Property Trustee, subject to Section 4.02(c), will
give the Paying Agent irrevocable instructions and authority to pay the
Redemption Price to the Holders thereof upon surrender of their Capital
Securities Certificates. Notwithstanding the foregoing, Distributions payable on
or prior to the Redemption Date for any Trust Securities called for redemption
shall be payable to the Holders of such Trust Securities as they appear on the
Securities Register for the Trust Securities on the relevant record dates for
the related Distribution Dates. If notice of redemption shall have been given
and funds deposited as required, then upon the date of such deposit, all rights
of Securityholders holding Trust Securities so called for redemption will cease,
except the right of such Securityholders to receive the Redemption Price and any
Distribution payable in respect of the Trust Securities on or prior to the
Redemption Date, but without interest on such Redemption Price, and such Trust
Securities will cease to be outstanding. In the event that any date fixed for
redemption of Trust Securities is not a Business Day, then payment of the
Redemption Price 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 falls in the next calendar
year, such payment will be made on the immediately preceding Business Day, in
each case, with the same force and effect as if made on such date. In the event
that payment of the Redemption Price in respect of any Trust Securities called
for redemption is improperly withheld or refused and not paid either by the
Trust or by the Depositor pursuant to the Guarantee, Distributions on such Trust
Securities will continue to accumulate, as set forth in Section 4.01, from the
Redemption Date originally established by the Trust for such Trust Securities to
the date such Redemption Price is actually paid, in which case the actual
payment date will be the date fixed for redemption for purposes of calculating
the Redemption Price.
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(e) Payment of the Redemption Price on the Trust Securities and
distribution of Debentures to holders of Capital Securities shall be made to the
record holders thereof as they appear on the Securities Register for the Trust
Securities on the relevant record date, which shall be the date fifteen (15)
days prior to the relevant Redemption Date or Liquidation Date, as applicable.
(f) Subject to Section 4.03(a), if less than all of the outstanding
Trust Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of such Trust Securities to be redeemed will be allocated pro
rata to the Trust Securities based upon the relative Liquidation Amounts of such
classes. The particular Capital Securities to be redeemed will be selected on a
pro rata basis by the Property Trustee from the outstanding Capital Securities
not previously called for redemption, by such method (including, without
limitation, by lot) as the Property Trustee deems fair and appropriate and which
may provide for the selection for redemption of portions (equal to $1,000 or an
integral multiple of $1,000 in excess thereof) of the Liquidation Amount of
Capital Securities of a denomination larger than $1,000. The Property Trustee
will promptly notify the registrar for the Capital Securities in writing of the
Capital Securities selected for redemption and, in the case of any Capital
Securities selected for partial redemption, the Liquidation Amount thereof to be
redeemed. For all purposes of the Trust Agreement, unless the context otherwise
requires, all provisions relating to the redemption of Capital Securities will
relate to the portion of the aggregate Liquidation Amount of Capital Securities
which has been or is to be redeemed.
Section 4.03 SUBORDINATION OF COMMON SECURITIES.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, the Redemption Price of and the Liquidation Distribution in
respect of the Trust Securities, as applicable, shall be made, subject to
Section 4.02(f), pro rata among the Capital Securities and the Common Securities
based on the Liquidation Amount of the Trust Securities; provided, however, that
if on any Distribution Date, Redemption Date or Liquidation Date any Event of
Default resulting from a Debenture Event of Default shall have occurred and be
continuing, no payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of or Liquidation Distribution in respect
of, any Common Security, and no other payment on account of the redemption,
liquidation or other acquisition of Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid Distributions (including
Additional Amounts, if applicable) on all Outstanding Capital Securities for all
distribution periods terminating on or prior thereto, or in the case of payment
of the Redemption Price the full amount of such Redemption Price on all
Outstanding Capital Securities, then called for redemption, or in the case of
payment of the Liquidation Distribution the full amount of such Liquidation
Distribution on all Outstanding Capital Securities, shall have been made or
provided for, and all funds available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or the Redemption Price of, Capital
Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting from
any Debenture Event of Default, the Holder of Common Securities will be deemed
to have waived any right to act with respect to any such Event of Default under
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this Trust Agreement until the effect of all such Events of Default with respect
to the Capital Securities have been cured, waived or otherwise eliminated. Until
all such Events of Default under this Trust Agreement with respect to the
Capital Securities have been so cured, waived or otherwise eliminated, the
Property Trustee shall act solely on behalf of the Holders of the Capital
Securities and not on behalf of the Holder of the Common Securities, and only
the Holders of the Capital Securities will have the right to direct the Property
Trustee to act on their behalf.
Section 4.04 PAYMENT PROCEDURES. Payments of Distributions (including
Additional Amounts if applicable) in respect of the Capital Securities shall be
made at (a) the Corporate Trust Office of the Property Trustee, (b) the
principal office of any Paying Agent, or (c) the principal office of the
Securities Registrar; provided that payment of any Distribution may be made, at
the option of the Administrative Trustees, by check mailed to the address of the
Person entitled thereto as such address shall appear on the Securities Register
or by wire transfer in immediately available funds at such place and to such
account as may be designated by the Person entitled thereto as specified in the
Securities Register; if the Capital Securities are held by a Clearing Agency,
such payments shall be made either by check or by wire transfer, at the option
of the Paying Agent, to the Clearing Agency in immediately available funds,
which shall credit the relevant Persons' accounts at such Clearing Agency on the
applicable Distribution Dates. Payments in respect of the Common Securities
shall be made in such manner as shall be mutually agreed between the Property
Trustee and the Holder of the Common Securities.
Section 4.05 TAX RETURNS AND REPORTS.
(a) The Administrative Trustees shall prepare (or cause to be prepared),
at the Depositor's expense, and filed by January 31 following each calendar year
all Federal, state and local tax and information returns and reports required to
be filed by or in respect of the Trust. In this regard, by January 31 following
each calendar year the Administrative Trustees shall (a) prepare and file (or
cause to be prepared or filed) the Internal Revenue Service Form 1041 (or any
successor form) required to be filed in respect of the Trust in each taxable
year of the Trust and (b) prepare and furnish (or cause to be prepared and
furnished) to each Securityholder the related Internal Revenue Service Form 1099
(or any successor form). The Administrative Trustees shall provide the Depositor
and the Property Trustee with a copy of all such returns, reports and schedules
promptly after such filing or furnishing.
(b) In the event that any withholding tax is imposed on the Trust's
payment to a Securityholder, such tax shall reduce the amount otherwise
distributable to the Securityholder in accordance with this Section. Any
Securityholder who is a nonresident alien individual or which is organized under
the laws of a jurisdiction outside the United States shall, on or prior to the
date such Securityholder becomes a Securityholder, (a) so notify the Trust and
the Trustees, and (b) either (i) provide the Trust and the Trustees with
Internal Revenue Service Form 1001, 4224, 8709 or W-8, as appropriate, or (ii)
notify the Trust and the Trustees that it is not entitled to an exemption from
United States withholding tax or a reduction in the rate thereof on payments of
interest. Any such Securityholder agrees by its acceptance of a Capital
Security, on an ongoing basis, to provide like certification for each taxable
year for which it is
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necessary to provide such information and to notify the Trust and the Trustees
should subsequent circumstances arise affecting the information provided the
Trustees in clauses (a) and (b) above. The Trustees shall be fully protected in
relying upon, and each Securityholder by its acceptance of a Capital Security
hereunder agrees to indemnify and hold the Trustees harmless against all claims
or liability of any kind arising in connection with or related to the Trustees'
reliance upon, any documents, forms or information provided by any
Securityholder to the Trustees. In addition, if the Trustees have not withheld
taxes on any payment made to any Securityholder, and the Trustees are
subsequently required to remit to any taxing authority any such amount not
withheld, such Securityholder shall return such amount to the Trustees upon
written demand by the Trustees. The Trustees shall be liable only for direct
(but not consequential) damages to any Securityholder due to the Trustees'
violation of the Code and only to the extent such liability is caused by the
Trustees' failure to act in accordance with its standard of care under this
Agreement. The Trustees shall comply with United States federal withholding and
backup withholding tax laws and information reporting requirements with respect
to any payments to Securityholders under the Trust Securities.
Section 4.06 PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST. Upon receipt
under the Debentures of Additional Sums (as defined in the Indenture), the
Property Trustee shall promptly pay any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Trust by the
United States or any other taxing authority.
Section 4.07 PAYMENTS UNDER INDENTURE. Any amount payable hereunder to any
Holder of Capital Securities (and any Owner with respect thereto) shall be
reduced by the amount of any corresponding payment such Holder (and Owner with
respect to a Holder's Capital Securities) has directly received pursuant to
Section 508 of the Indenture or Section 5.11 of this Trust Agreement.
ARTICLE V
TRUST SECURITIES CERTIFICATES
Section 5.01 INITIAL OWNERSHIP. Upon the formation of the Trust and the
contribution by the Depositor pursuant to Section 2.03 and until the issuance of
the Trust Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the Trust.
Section 5.02 THE TRUST SECURITIES CERTIFICATES.
(a) The Capital Securities Certificates shall be issued in minimum
denominations of $100,000 Liquidation Amount (100 Capital Securities) and
integral multiples of $1,000 in excess thereof, and the Common Securities
Certificates shall be issued in denominations of $1,000 Liquidation Amount and
integral multiples thereof. The Trust Securities Certificates shall be executed
on behalf of the Trust by signature of the three Administrative Trustees. Trust
Securities Certificates bearing the signatures of individuals who were, at the
time when such signatures shall have been affixed, authorized to sign on behalf
of the Trust, shall be validly issued and entitled to the benefits of this Trust
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the delivery of such Trust Securities
Certificates
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or did not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Sections 5.03 and
5.05.
(b) The Capital Securities Certificates issued to Qualified
Institutional Buyers (as defined in Rule 144A under the Securities Act), upon
original issuance, will be issued in the form of a Global Capital Securities
Certificate registered in the name of Cede & Co. ("Cede"), as the Clearing
Agency's nominee, and deposited with or on behalf of the Clearing Agency for
credit by the Clearing Agency to the respective accounts of the Owners thereof
(or such other accounts as they may direct). Except as set forth herein, record
ownership of the Global Capital Security may be transferred, in whole or in
part, only to another nominee of the Clearing Agency or to a successor of the
Clearing Agency or its nominee.
(c) The Capital Securities Certificates issued to Persons other than
Qualified Institutional Buyers, upon their original issuance, shall be issued in
definitive form and may not be represented by the Global Capital Securities
Certificate.
(d) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
(e) Pending the preparation of definitive Trust Securities Certificates,
the Administrative Trustees may execute on behalf of the Trust and delivery,
temporary Trust Securities Certificates which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Trust Securities Certificates in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the Administrative Trustees executing such
temporary Trust Securities Certificates may determine, as evidenced by their
execution of such Trust Securities Certificates.
If temporary Trust Securities Certificates are issued, the Trust will
cause definitive Trust Securities Certificates to be prepared without
unreasonable delay. After the preparation of definitive Trust Securities
Certificates, the temporary Trust Securities Certificates shall be exchangeable
for definitive Trust Securities Certificates upon surrender of the temporary
Trust Securities Certificates at any office or agency of the Trust, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Trust Securities Certificates, the Administrative Trustees shall
execute and deliver in exchange therefor a like amount of definitive Trust
Securities Certificates having the same date of issuance and the same terms as
such temporary Trust Securities Certificates. Until so exchanged, the temporary
Trust Securities Certificates shall in all respects be entitled to the same
benefits under this Trust Agreement as definitive Trust Securities Certificates.
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Section 5.03 DELIVERY OF TRUST SECURITIES CERTIFICATES On the Closing
Date, the Administrative Trustees shall cause Trust Securities Certificates, in
an aggregate Liquidation Amount as provided in Section 2.04, to be executed on
behalf of the Trust and delivered to or upon the written order of the Depositor,
executed by one authorized officer thereof, without further corporate action by
the Depositor, in authorized denominations.
Section 5.04 GLOBAL CAPITAL SECURITY
(a) The Global Capital Securities issued under this Trust Agreement will
be registered in the name of Cede, as a nominee of the Clearing Agency, and
delivered to its custodian therefor, and such Global Capital Security shall
constitute a single Capital Security for all purposes of this Trust Agreement.
(b) Notwithstanding any other provision in this Trust Agreement, the
Global Capital Security may not be exchanged in whole or in part for Capital
Securities registered, and no transfer of the Global Capital Security in whole
or in part may be registered, in the name of any Person other than the Clearing
Agency for such Global Capital Security, Cede, or other nominee thereof unless
(i) such Clearing Agency advises the Property Trustee in writing that such
Clearing Agency is no longer willing or able to continue as Clearing Agency with
respect to such Global Capital Security, and the Depositor is unable to locate a
qualified successor, (ii) the Depositor at its sole option advises the Clearing
Agency in writing that it elects to terminate the book-entry system through the
Clearing Agency, or (iii) there shall have occurred and be continuing a
Debenture 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 Securities upon transfer
of such beneficial interests to a non-Qualified Institutional Buyer.
(c) If the Global Capital Security is to be exchanged for Capital
Securities or canceled in whole, it shall be surrendered by or on behalf of the
Clearing Agency or its nominee to the Securities Registrar for exchange or
cancellation as provided in this Article V. If the Global Capital Security is to
be exchanged for Capital Securities or canceled in part, or if a Capital
Security is to be exchanged for Capital Securities or canceled in part, or if a
Capital Security is to be exchanged in whole or in part for a beneficial
interest in the Global Capital Security, then either (i) such Global Capital
Security shall be so surrendered for exchange or cancellation as provided in
this Article V or (ii) the aggregate Liquidation Amount thereof shall be
reduced, subject to Section 5.02, or increased by an amount equal to the portion
thereof to be so exchanged or canceled, or equal to the aggregate Liquidation
Amount of such Capital Security 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 Security Registrar, whereupon the Property Trustee, in accordance
with the Applicable Procedures, shall instruct the Clearing Agency or its
authorized representative to make a corresponding adjustment to its records.
Upon any such surrender or adjustment of Global Capital Security by the Clearing
Agency and Clearing Agency Participants, accompanied by registration
instructions executed by an Administrative Trustee on behalf of the Trust and,
to the extent required
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in Section 5.05(c), a Restricted Capital Securities Certificate, the Property
Trustee shall, subject to the Article V, countersign and make available for
delivery any executed Capital Securities delivered to it issuable in exchange
for such Global Capital Security (or portion thereof) in accordance with the
instructions of the Clearing Agency. The Property Trustee 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.
(d) The Clearing Agency or its nominee, as the registered owner of the
Global Capital Security, shall be considered the Holder of the Capital
Securities represented by the Global Capital Security for all purposes under
this Trust Agreement and the Capital Securities, and owners of beneficial
interests in the Global Capital Security shall hold such interests pursuant to
the Applicable Procedures and, except as otherwise provided herein, shall not be
entitled to have any of the individual Capital Securities represented by the
Global Capital Security registered in their names, shall not receive nor be
entitled to receive physical delivery of any such Capital Securities in
definitive form and shall not be considered the Holders thereof under this Trust
Agreement. Accordingly, any such Owner's beneficial interest in the Global
Capital Security shall be shown only on, and the transfer of such interest shall
be effected only through, records maintained by the Clearing Agency or its
nominee. The Securities Registrar and the Trustees shall be entitled to deal
with the Clearing Agency for all purposes of this Trust Agreement relating to
the Global Capital Securities (including the giving of notices or other
communications required under this Trust Agreement, the payment of the
Liquidation Amount of and Distributions on the Global Capital Securities and the
giving of instructions or directions to Owners of Global Capital Securities) as
the sole Holder of Global Capital Securities and shall have no obligations to
the Owners thereof. Neither the Property Trustee nor the Securities Registrar
shall have any liability in respect of any transfers effected by the Clearing
Agency.
(e) The rights of Owners of beneficial interests in the Global Capital
Security shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such owners and the
Clearing Agency. Neither the Clearing Agency nor its nominee will consent or
vote with respect to the Capital Securities. Under its usual procedures, the
Clearing Agency or its nominee would mail an Omnibus Proxy to the Trust as soon
as possible after the relevant record date. The Omnibus Proxy assigns the
consenting or voting rights of the Clearing Agency or its nominee to those
Clearing Agency Participants, identified in a listing attached to such Omnibus
Proxy, to whose accounts the Capital Securities are credited on such record
date.
Section 5.05 REGISTRATION OF TRANSFER AND EXCHANGE GENERALLY; CERTAIN
TRANSFERS AND EXCHANGES; CAPITAL SECURITIES CERTIFICATES; SECURITIES ACT
LEGENDS.
(a) The Property Trustee shall keep or cause to be kept at its Corporate
Trust Office a register or registers for the purpose of registering Capital
Securities Certificates and Common Securities Certificates and transfers and
exchanges of Capital Securities Certificates and Common Securities Certificates
in which the registrar and transfer agent with respect to the Capital Securities
(the "Securities Registrar"), subject to such reasonable regulations as it may
prescribe, shall provide for the registration of Capital Securities Certificates
and Common Securities Certificates (subject to Section 5.11 in the case of
Common
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Securities Certificates) and registration of transfers and exchanges of Capital
Securities Certificates and Common Securities Certificates as herein provided.
Such register is herein sometimes referred to as the "Securities Register." The
Bank is hereby appointed "Securities Registrar" for the purpose of registering
Capital Securities and transfers of Capital Securities as herein provided. The
provisions of Sections 8.01, 8.03 and 8.06 hereunder shall apply to the Bank
also in its role as Securities Registrar.
Upon surrender for registration of transfer of any Capital Security at the
offices or agencies of the Property Trustee designated for that purpose, the
Administrative Trustees shall execute, and the Property Trustee shall, if
requested by an Administrative Trustee, authenticate and make available for
delivery, in the name of the designated transferee or transferees, one or more
new Capital Securities of any authorized denominations of like tenor and
aggregate liquidation amount and bearing such restrictive legends as may be
required by this Trust Agreement.
At the option of the Holder, Capital Securities may be exchanged for other
Capital Securities of any authorized denominations, of like tenor and aggregate
Liquidation Amount and bearing such restrictive legends as may be required by
this Trust Agreement, upon surrender of the Capital Securities to be exchanged
at such office or agency. Whenever any securities are so surrendered for
exchange, an Administrative Trustee shall execute and the Property Trustee
shall, if requested by an Administrative Trustee, authenticate and make
available for delivery the Capital Securities that the Holder making the
exchange is entitled to receive.
All Capital Securities issued upon any transfer or exchange of Capital
Securities shall be the valid obligations of the Trust, entitled to the same
benefits under this Trust Agreement as the Capital Securities surrendered upon
such transfer or exchange.
Every Capital Security presented or surrendered for transfer or exchange
shall (if so required by the Property Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Property Trustee and the Securities Registrar, duly executed by the Holder
thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or exchange
of Capital Securities, but the Property Trustee or the Securities Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Capital Securities.
Neither the Trust nor the Property Trustee shall be required, pursuant to
the provisions of this Section, to register the transfer of or exchange any
Capital Security so selected for redemption in whole or in part, except, in the
case of any such Capital Security to be redeemed in part, any portion thereof
not to be redeemed.
The Capital Securities will be issued, and may be transferred, only in
blocks having a Liquidation Amount of not less than $100,000 and integral
multiples of $1,000 in excess thereof. Any transfer, sale or other disposition
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of Capital Securities in a block having a Liquidation Amount of less than
$100,000 shall be deemed to be void and of no legal effect whatsoever. Any such
transferee shall be deemed not to be the Holder of such Capital Securities for
any purpose, including but not limited to the receipt of Distributions on such
Capital Securities, and such transferee shall be deemed to have no interest
whatsoever in such Capital Securities.
(b) Certain Transfers and Exchanges. Subject to Section 5.04(c), but
notwithstanding any other provision of this Trust Agreement, transfers and
exchanges of Capital Securities and beneficial interests in a Global Capital
Security shall be made only in accordance with this Section 5.05(b) and Section
5.04(c).
(i) Non-Global Capital Security to Global Capital Security. If the
Holder of a Capital Security (other than the Global Capital Security)
wishes at any time to transfer all or any portion of such Capital Security
to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Global Capital Security, such transfer may be
effected only in accordance with the provisions of this clause (b)(i) and
subject to the Applicable Procedures. Upon receipt by the Securities
Registrar of (A) such Capital Security as provided in Section 5.05(a) and
instructions satisfactory to the Securities Registrar directing that a
beneficial interest in the Global Capital Security in a specified
liquidation amount not greater than the liquidation amount of such Capital
Security to be credited to a specified Clearing Agency Participant's
account, (B) a Capital Securities Certificate duly executed by such Holder
or such Holder's attorney duly authorized in writing, and (C) a
certification substantially similar to that attached hereto as Exhibit C,
then the Securities Registrar shall cancel such Capital Security (and
issue a new Capital Security in respect of any untransferred portion
thereof) and increase the aggregate Liquidation Amount of the Global
Capital Security by the specified Liquidation Amount as provided in
Section 5.04(c).
(ii) Non-Global Capital Security to Non-Global Capital Security. A
Capital Security that is not a Global Capital Security may be transferred,
in whole or in part, to a Person who takes delivery in the form of another
Capital Security that is not a Global Capital Security as provided in
Section 5.05(a); provided that if the Capital Security to be transferred
in whole or in part is a Restricted Capital Security, the Securities
Registrar shall have received a Restricted Capital Securities Certificate
duly executed by the transferor Holder or such Holder's attorney duly
authorized in writing.
(iii) Exchanges Between Global Capital Security and Non-Global
Capital Security. A beneficial interest in the Global Capital Security may
be exchanged for a Capital Security that is not a Global Capital Security
only as provided in Section 5.04.
(iv) Limitations Relating to Liquidation Amount. Notwithstanding
any other provision of this Trust Agreement and unless otherwise specified
as permitted by this Trust Agreement, Capital Securities or portions
thereof may be transferred or exchanged only in Liquidation Amounts of not
less than $100,000 and integral multiples of $1,000 in excess thereof. Any
transfer, exchange or disposition of Capital Securities in contravention
of this Section 5.05(b)(iv) shall be deemed to be void and of no legal
effect whatsoever, any such transferee
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shall be deemed not to be the Holder or owner of any beneficial interest
in such Capital Securities for any purpose, including but not limited to
the receipt of interest payable on such Capital Securities, and such
transferee shall be deemed to have no interest whatsoever in such Capital
Securities.
(c) Restricted Securities Legend. (i) Except as set forth in this
Section 5.04(c), all Capital Securities shall bear a Restricted Capital
Securities legend substantially in the following form:
THIS CAPITAL SECURITY 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 CAPITAL SECURITY 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 CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER THIS CAPITAL SECURITY, 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 THE
COMPANY OR ANY "AFFILIATE" OF THE COMPANY WAS THE OWNER OF THIS CAPITAL
SECURITY (OR ANY PREDECESSOR OF THIS CAPITAL SECURITY) 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 CAPITAL SECURITY
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 CAPITAL SECURITY 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, (E) TO AN INDIVIDUAL
ACCREDITED INVESTOR WITHIN THE MEANING OF SUBPARAGRAPH (A)(5) OR (6) OF
RULE 501 UNDER THE SECURITIES ACT, RESIDING IN ONE OF THE JURISDICTIONS
AUTHORIZED BY THE COMPANY, THAT IS PURCHASING THE CAPITAL SECURITIES FOR
ITS OWN ACCOUNT 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 (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT
OF THE TRUST AND THE COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i)
PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, (ii) PURSUANT TO CLAUSE (D) TO REQUIRE THAT THE TRANSFEROR
DELIVER TO THE TRUST A LETTER FROM THE TRANSFEREE SUBSTANTIALLY IN THE
FORM OF APPENDIX C TO THE OFFERING MEMORANDUM DATED JANUARY 29, 1999, AND
(iii) PURSUANT TO CLAUSE (E) TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE
TRUST OR OTHER TRANSFER AGENT A QUESTIONNAIRE AND INVESTMENT AGREEMENT,
EACH OF WHICH IS AVAILABLE FROM THE COMPANY. SUCH HOLDER FURTHER AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
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CAPITAL SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
(ii) Subject to the following paragraphs of this Section 5.04(c), a
new Capital Security (other than a Global Capital Security) that does not
bear a Restricted Capital Securities Legend may be issued in exchange for
or in lieu of a Restricted Capital Security or any portion thereof that
bears such a legend if, in the Depositor's judgment, placing such a legend
upon such new Capital Security is not necessary to ensure compliance with
the registration requirements of the Securities Act, and the Property
Trustee, at the written direction of the Trust in the form of an Officers'
Certificate, shall authenticate and deliver such a new Capital Security as
provided in this Article V.
(iii) Notwithstanding the foregoing provisions of this Section
5.04(c), a successor Capital Security of a Capital Security that does not
bear a Restricted Capital Securities Legend shall not bear such form of
legend unless the Depositor has reasonable cause to believe that such
successor Capital Security is a "restricted security" within the meaning
of Rule 144 under the Securities Act, in which case the Property Trustee,
at the written direction of the Trust in the form of an Officer's
Certificate, shall authenticate and deliver a new Capital Security bearing
a Restricted Capital Securities Legend in exchange for such successor
Capital Security as provided in this Article V.
(iv) Upon any sale or transfer of a Restricted Capital Security
(including any Restricted Capital Security represented by a Global Capital
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 an Restricted
Capital Security that is a definitive Capital Security, the Securities
Registrar shall permit the Holder thereof to exchange such Restricted
Capital Security for a definitive Capital Security that does not bear the
Restricted Securities Legend and rescind any restriction on the transfer
of such Restricted Capital Security; and (B) in the case of any Restricted
Capital Security that is represented by a Global Capital Security, the
Securities Registrar shall permit the Holder of such Global Capital
Security to exchange such Global Capital Security for another Global
Capital Security that does not bear the Restricted Securities Legend.
(v) If Restricted Capital Securities are being presented or
surrendered for transfer or exchange then there shall be (if so required
by the Property Trustee), (a) if such Restricted Capital Securities are
being delivered to the Securities 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 Capital Securities are
being transferred, if the Trust or Securities Registrar so requests,
evidence reasonably satisfactory to them as to the compliance with the
restrictions set forth in the Restricted Capital Securities Legend.
Section 5.06 MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES
CERTIFICATES. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
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receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees, or any one of them, on behalf of the
Trust shall execute and cause to be made available for delivery, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, the Administrative Trustees or the Securities
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Trust Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an undivided beneficial interest in the assets of the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Trust Securities Certificate shall be found at any time.
Section 5.07 PERSONS DEEMED SECURITYHOLDERS. Prior to due presentation of
a Trust Securities Certificate for registration of transfer, the Administrative
Trustees or the Securities Registrar shall treat the Person in whose name any
Trust Securities Certificate shall be registered in the Securities Register as
the owner of such Trust Securities Certificate for the purpose of receiving
distributions and for all other purposes whatsoever, and neither the Trustees
nor the Securities Registrar shall be bound by any notice to the contrary.
Section 5.08 ACCESS TO LIST OF SECURITYHOLDERS' NAMES AND ADDRESSES. Each
Holder, by receiving and holding a Trust Securities Certificate, and each Owner
shall be deemed to have agreed not to hold either the Depositor, the Property
Trustee or the Administrative Trustees accountable by reason of the disclosure
of its name and address, regardless of the source from which such information
was derived.
Section 5.09 MAINTENANCE OF OFFICE OR AGENCY. The Administrative Trustees
shall maintain an office or offices or agency or agencies where Capital
Securities Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Trustees in respect of the
Trust Securities Certificates may be served. The Administrative Trustees
initially designate the Corporate Trust Office as the office for such purposes.
Such offices may also consist of the principal office of any Paying Agent or the
principal office of the Securities Registrar. The Administrative Trustees shall
give prompt written notice to the Depositor and to the Securityholders of any
change in the location of the Securities Register or any such office or agency.
Section 5.10 APPOINTMENT OF PAYING AGENT. The Paying Agent shall make
distributions to Securityholders from the Payment Account and shall report the
amounts of such distributions to the Property Trustee and the Administrative
Trustees. Any Paying Agent shall have the revocable power to withdraw funds from
the Payment Account for the purpose of making the distributions referred to
above. The Administrative Trustees may revoke such power and remove the Paying
Agent in their sole discretion. The Paying Agent shall initially be the Bank,
and any co-paying agent chosen by the Bank, and acceptable to the Administrative
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Trustees and the Depositor. Any Person acting as Paying Agent shall be permitted
to resign as Paying Agent upon 30 days' written notice to the Administrative
Trustees, the Property Trustee and the Depositor. In the event that the Bank
shall no longer be the Paying Agent or a successor Paying Agent shall resign or
its authority to act be revoked, the Administrative Trustees shall appoint a
successor that is acceptable to the Property Trustee and the Depositor to act as
Paying Agent (which shall be a bank or trust company). The Administrative
Trustees shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent will hold all sums, if any, held by it for payment to
the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06 shall apply
to the Bank also in its role as Paying Agent, for so long as the Bank shall act
as Paying Agent and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
Section 5.11 OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR. On the Closing
Date the Depositor shall acquire and thereafter shall retain beneficial and
record ownership of the Common Securities. Any attempted transfer of the Common
Securities other than as set forth in the preceding sentence shall be void;
provided that any permitted successor of the Depositor under the Indenture may
succeed to the Depositor's ownership of the Common Securities. The
Administrative Trustees shall cause each Common Securities Certificate issued to
the Depositor to contain a legend stating substantially "THIS CERTIFICATE IS NOT
TRANSFERABLE."
Section 5.12 RIGHTS OF SECURITYHOLDERS.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.09, and
the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights and when issued and delivered to
Securityholders against payment of the purchase price therefor and upon such
payment will be fully paid and nonassessable by the Trust. The Holders of the
Trust Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
(b) For so long as any Capital Securities remain Outstanding, if, upon a
Debenture Event of Default, the Debenture Trustee fails or the holders of not
less than 25% in aggregate principal amount of the outstanding Debentures fail
to declare the principal of all of the Debentures to be immediately due and
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payable, the Holders of at least 25% in Liquidation Amount of the Capital
Securities then Outstanding shall have such right by a notice in writing to the
Depositor and the Debenture Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the Debentures shall
become immediately due and payable, provided that the payment of principal and
interest on such Debentures remains subordinated to the extent provided in the
Indenture.
At any time after such a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as described in the
Indenture, if the holders of a majority in aggregate principal amount of the
outstanding Debentures fail to annul any such declaration and waive such
default, the Holders of a majority in Liquidation Amount of the Capital
Securities, by written notice to the Depositor and the Debenture Trustee, may
rescind and annul such declaration and its consequences if:
(i) the Depositor has paid or deposited with the Debenture Trustee
a sum sufficient to pay:
(A) all overdue installments of interest (including any
Additional Interest (as defined in the Indenture) on all of the
Debentures,
(B) the principal of any Debenture which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Debentures, and
(C) all sums paid or advanced by the Debenture Trustee under
the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Debenture Trustee and the Property
Trustee, their agents and counsel; and
(ii) all Debenture Events of Default, other than the non-payment of
the principal of the Debentures which has become due solely by such
acceleration, have been cured or waived as provided in Section 513 of the
Indenture. The holders of a majority in aggregate Liquidation Amount of
the Capital Securities may, on behalf of the Holders of all the Capital
Securities, waive any past default under the Indenture, except a default
in the payment of principal of or interest (including any Additional
Interest, as defined in the Indenture) on any Debenture (unless such
default has been cured and a sum sufficient to pay all matured
installments of interest (including any Additional Interest, as defined in
the Indenture) and principal due otherwise than by acceleration has been
deposited with the Debenture Trustee) or a default in respect of a
covenant or provision which under the Indenture cannot be modified or
amended without the consent of the holder of each outstanding Debenture.
Upon such waiver, any such default or Event of Default shall cease to
exist, and any default or Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Trust Agreement, but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
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Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the Capital
Securities all or part of which are represented by Global Capital Securities
Certificates, a record date shall be established for determining Holders of
Outstanding Capital Securities entitled to join in such notice, which record
date shall be at the close of business on the day the Property 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 or 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 or 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 5.12(b).
(c) For so long as any Capital Securities remain outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Debenture Event of Default specified in Section 501(1)
or 501(2) of the Indenture, any Holder of Capital Securities shall have the
right to institute a proceeding directly against the Depositor, pursuant to
Section 508 of the Indenture, for enforcement of payment to such Holder of the
principal amount of (and premium, if any) or interest (including any Additional
Interest, as defined in the Indenture) on Debentures having a principal amount
equal to the aggregate Liquidation Amount of the Capital Securities of such
Holder (a "Direct Action"). Except as set forth in Section 5.12(b) and (c), the
Holders of Capital Securities shall have no right to exercise directly any right
or remedy available to the holders of, or in respect of, the Debentures.
ARTICLE VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.01 LIMITATIONS ON VOTING RIGHTS.
(a) Except as provided in this Section, in Section 10.03 and in the
Indenture and as otherwise required by law, no Holder of Capital Securities
shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or executing any
trust or power conferred on the Debenture Trustee with respect to such
Debentures, (ii) waive any past default which is waivable under Section 513 of
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the Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Debentures shall be due and payable or (iv) consent to
any amendment, modification or termination of the Indenture or the Debentures,
where such consent shall be required, without, in each case, obtaining the prior
approval of the Holders of at least a majority in Liquidation Amount of the
Outstanding Capital Securities; provided, however, that where a consent under
the Indenture would require the consent of each holder of Debentures affected
thereby, no such consent shall be given by the Property Trustee without the
prior written consent of each Holder of Capital Securities. The Trustees shall
not revoke any action previously authorized or approved by a vote of the Holders
of Capital Securities, except by a subsequent vote of the Holders of Capital
Securities. The Property Trustee shall notify all Holders of the Capital
Securities of any notice of default received from the Debenture Trustee. In
addition to obtaining the foregoing approvals of the Holders of the Capital
Securities, prior to taking any of the foregoing actions, the Trustees shall, at
the expense of the Depositor, obtain an Opinion of Counsel experienced in such
matters to the effect that the Trust will not fail to be classified as a grantor
trust for United States federal income tax purposes on account of such action.
(c) Except as provided in Section 10.03, if any proposed amendment to
the Trust Agreement provides for, or the Trustees otherwise propose to effect,
(i) any action that would adversely affect in any material respect the powers,
preferences or special rights of the Capital Securities, whether by way of
amendment to the Trust Agreement or otherwise, or (ii) the dissolution,
winding-up or termination of the Trust, other than pursuant to the terms of this
Trust Agreement, then the Holders of Outstanding Capital Securities as a class
will be entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of the Holders of at
least a majority in Liquidation Amount of the Outstanding Capital Securities. No
amendment to this Trust Agreement may be made if, as a result of such amendment,
the Trust would fail to be classified as a grantor trust for United States
Federal income tax purposes or would lose its exemption from status as an
"investment company" under the Investment Company Act.
Section 6.02 NOTICE OF MEETINGS. Notice of all meetings of the Capital
Securityholders, stating the time, place and purpose of the meeting, shall be
given by the Administrative Trustees pursuant to Section 10.09 to each Capital
Securityholder of record, at his registered address, at least 15 days and not
more than 90 days before the meeting. At any such meeting, any business properly
before the meeting may be so considered whether or not stated in the notice of
the meeting. Any adjourned meeting may be held as adjourned without further
notice.
Any and all notices to which any Capital Securityholder hereunder may be
entitled and any and all communications shall be deemed duly served or given if
mailed, postage prepaid, addressed to any Capital Securityholder of record at
his last known address as recorded on the Securities Register.
Section 6.03 MEETINGS OF CAPITAL SECURITYHOLDERS. No annual meeting of
Securityholders is required to be held. The Administrative Trustees, however,
shall call a meeting of Securityholders to vote on any matter upon the written
request of the Capital Securityholders of record of at least 25% in aggregate
Liquidation Amount of the Outstanding Capital Securities and the Administrative
Trustees or the Property Trustee may, at any time in their discretion, call a
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meeting of Capital Securityholders to vote on any matters as to the which
Capital Securityholders are entitled to vote.
Capital Securityholders of record of at least 50% in aggregate Liquidation
Amount of the Outstanding Capital Securities, present in person or by proxy,
shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the Capital
Securityholders of record present, in person or by proxy, holding at least a
majority in aggregate Liquidation Amount of the Capital Securities held by the
Capital Securityholders of record present, either in person or by proxy, at such
meeting shall constitute the action of the Securityholders, unless this Trust
Agreement requires a greater number of affirmative votes.
Section 6.04 VOTING RIGHTS. Securityholders shall be entitled to one vote
for each $1,000 of Liquidation Amount represented by their Trust Securities in
respect of any matter as to which such Securityholders are entitled to vote.
Section 6.05 PROXIES, ETC. At any meeting of Securityholders, any
Securityholder entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Pursuant to a resolution of the Property
Trustee, proxies may be solicited in the name of the Property Trustee or one or
more officers of the Property Trustee. Only Securityholders of record shall be
entitled to vote. When Trust Securities are held jointly by several persons, any
one of them may vote at any meeting in person or by proxy in respect of such
Trust Securities, but if more than one of them shall be present at such meeting
in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.
Section 6.06 SECURITYHOLDER ACTION BY WRITTEN CONSENT. Any action which
may be taken by Securityholders at a meeting may be taken without a meeting if
Securityholders holding at least a majority in aggregate Liquidation Amount of
all Outstanding Trust Securities entitled to vote in respect of such action (or
such larger proportion thereof as shall be required by any express provision of
this Trust Agreement) shall consent to the action in writing. The Administrative
Trustees shall cause a notice of any matter upon which action by written consent
of the Securityholders is to be taken, to be given to each Holder of record of
the Outstanding Capital Securities in the same manner as that set forth in
Section 6.02 for notice of meetings.
Section 6.07 RECORD DATE FOR VOTING AND OTHER PURPOSES. For the purposes
of determining the Securityholders who are entitled to notice of and to vote at
any meeting or by written consent, or to participate in any distribution on the
Trust Securities in respect of which a record date is not otherwise provided for
in this Trust Agreement, or for the purpose of any other action, the
Administrative Trustees or the Property Trustee may from time to time fix a
date, not more than 90 days prior to the date of any meeting of Securityholders
or the
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payment of distribution or other action, as the case may be, as a record date
for the determination of the identity of the Securityholders of record for such
purposes.
Section 6.08 ACTS OF SECURITYHOLDERS. Any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this
Trust Agreement to be given, made or taken by Securityholders or Owners may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders or Owners in person or by an agent duly
appointed in writing; and, except as otherwise expressly provided herein, such
action shall become effective when such instrument or instruments are delivered
to an Administrative Trustee. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Securityholders or Owners 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 Trust Agreement and (subject
to Section 8.01) conclusive in favor of the Trustees, if made in the manner
provided in this Section.
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 of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Trustee receiving the same deems sufficient.
The ownership of Trust Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security 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 Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
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 Liquidation Amount.
If any dispute shall arise between the Securityholders of Trust Securities
and the Administrative Trustees or among such Securityholders or Trustees with
respect to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
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A Securityholder may institute a legal proceeding directly against the
Depositor under the Guarantee to enforce its rights under the Guarantee without
first instituting a legal proceeding against the Guarantee Trustee (as defined
in the Guarantee), the Trust or any Person.
Section 6.09 INSPECTION OF RECORDS. Upon reasonable notice to the
Administrative Trustees and the Property Trustee, the records of the Trust shall
be open to inspection by Securityholders during normal business hours for any
purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.01 REPRESENTATIONS AND WARRANTIES OF THE BANK AND THE PROPERTY
TRUSTEE. The Bank and the Property Trustee, each severally on behalf of and as
to itself, as of the date hereof, and each successor Property Trustee at the
time of the successor Property Trustee's acceptance of its appointment as
Property Trustee hereunder (the term "Bank" being used to refer to such
successor Property Trustee in its separate corporate capacity) hereby represents
and warrants (as applicable) as to itself only and for the benefit of the
Depositor and the Securityholders that:
(a) the Bank is a banking corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(b) the Bank has full corporate power, authority and legal right to
execute, deliver and perform its obligations under this Trust Agreement and has
taken all necessary action to authorize the execution, delivery and performance
by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Bank and, assuming the authorization, execution and delivery
hereof by the other parties hereto, constitutes the valid and legally binding
agreement of the Bank enforceable against the Bank in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(d) the execution, delivery and performance by the Bank of this Trust
Agreement have been duly authorized by all necessary corporate and other action
on the part of the Bank and the Property Trustee, and do not require any
approval of stockholders of the Bank and such execution, delivery and
performance will not (i) violate the Bank's Charter or By-laws, (ii) violate any
provision of, or constitute, with or without notice or lapse of time, a default
under, or result in the creation or imposition of, any Lien on any properties
included in the Trust Property pursuant to the provisions of, any indenture,
mortgage, credit agreement, license or other agreement or instrument to which
the Property Trustee or the Bank is a party or by which it is bound, or (iii)
violate any law, governmental rule or regulation of the State of Delaware or the
United States governing the banking or trust powers of the Bank and the Property
Trustee or any order, judgment or decree applicable to the Property Trustee or
the Bank;
(e) neither the authorization, execution or delivery by the Property
Trustee of this Trust Agreement nor the consummation of any of the transactions
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by the Bank or the Property Trustee contemplated herein or therein require the
consent or approval of, the giving of notice to, the registration with or the
taking of any other action with respect to any governmental authority or agency
under any existing federal law governing the banking or trust powers of the Bank
or the Property Trustee or under the laws of the State of Delaware;
(f) there are no proceedings pending or, to the best of the Bank's
knowledge, threatened against or affecting the Bank or the Property Trustee in
any court or before any governmental authority, agency or arbitration board or
tribunal which, individually or in the aggregate, would materially and adversely
affect the Trust or would question the right, power and authority of the Bank to
enter into or perform its obligations as one of the Trustees under this Trust
Agreement; and
(g) the principal place of business of the Property Trustee is located
in the State of Delaware.
Section 7.02 REPRESENTATIONS AND WARRANTIES OF PARENT. The Parent hereby
represents and warrants for the benefit of the Securityholders that:
(a) this Trust Agreement has been duly authorized, executed and
delivered by Parent and constitutes the valid and legally binding agreement of
Parent enforceable against Parent in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(b) the Trust Securities Certificates issued on the Closing Date on
behalf of the Trust have been duly authorized and will have been duly and
validly executed, issued and delivered by the Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust Agreement
and the Securityholders will be, as of each such date, entitled to the benefits
of this Trust Agreement; and
(c) there are no taxes, fees or other governmental charges payable by
the Trust (or the Trustees on behalf of the Trust) under the laws of the State
of Delaware or any political subdivision thereof in connection with the
execution, delivery and performance by the Bank or the Property Trustee, as the
case may be, of this Trust Agreement.
ARTICLE VIII
THE TRUSTEES
Section 8.01 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustees shall be as provided
by this Trust Agreement. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their 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 Trust
Agreement relating to the conduct or affecting the liability of or affording
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protection to the Trustees shall be subject to the provisions of this Section.
No Administrative Trustee shall be liable for its act or omission as a result of
such Person's gross negligence or willful misconduct. To the extent that, at law
or in equity, any Trustee has duties and liabilities relating to the Trust or to
the Holders, such Trustee shall not be liable to the Trust or to any Holder for
such Trustee's good faith reliance on the provisions of this Trust Agreement.
The provisions of this Trust Agreement, to the extent that they restrict the
duties and liabilities of the Trustees otherwise existing at law or in equity,
are agreed by the Depositor and the Holders to replace such other duties and
liabilities of the Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.01(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement.
(c) The Property Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Trust Agreement and no implied covenants shall be read into this Trust Agreement
against the Property Trustee. In case an Event of Default has occurred (that has
not been cured or waived), the Property Trustee shall exercise such of the
rights and powers vested in it by this Trust Agreement, 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 or her own affairs.
(d) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(ii) the Property 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 the Holders of not less than a majority in Liquidation
Amount of the Capital Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the Property
Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Debentures and the Payment
Account shall be to deal with such property in a similar manner as
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the Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Trust Agreement;
(iv) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree with the
Depositor. Money held by the Property Trustee need not be segregated from
other funds held by it except in relation to the Payment Account
maintained by the Property Trustee pursuant to Section 3.01 and except to
the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for monitoring
the compliance by the Administrative Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of the Administrative
Trustees or the Depositor.
Section 8.02 CERTAIN NOTICES. Within five Business Days after the
occurrence of any Event of Default, the Property Trustee shall transmit, in the
manner and to the extent provided in Section 10.09, notice of any Event of
Default actually known to the Property Trustee to the Securityholders, the
Administrative Trustees and the Depositor, unless such Event of Default shall
have been cured or waived.
Within five Business Days after the receipt of notice of the Depositor's
exercise of its right to defer the payment of interest on the Debentures
pursuant to the Indenture, the Administrative Trustees shall transmit, in the
manner and to the extent provided in Section 10.09, notice of such exercise to
the Securityholders and the Property Trustee, unless such exercise shall have
been revoked.
Section 8.03 CERTAIN RIGHTS OF PROPERTY TRUSTEE. Subject to the provisions
of Section 8.01 and except as provided by law:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond, debenture, 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;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of action or
(ii) in construing any of the provisions in this Trust Agreement the Property
Trustee finds the same ambiguous or inconsistent with any other provisions
contained herein or (iii) the Property Trustee is unsure of the application of
any provision of this Trust Agreement, then, except as to any matter as to which
the Capital Securityholders are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken. The Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
Business
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Days after it has delivered such notice, or such reasonably shorter period of
time set forth in such notice (which to the extent practicable shall not be less
than two Business Days), it may, but shall be under no duty to, take or refrain
from taking such action not inconsistent with this Trust Agreement as it shall
deem advisable and in the best interests of the Securityholders, in which event
the Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative Trustees
contemplated by this Trust Agreement shall be sufficiently evidenced by an
Officer's Certificate;
(d) whenever in the administration of this Trust Agreement, the Property
Trustee shall deem it desirable that a matter be established before undertaking,
suffering or omitting any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad faith on
its part, request and rely upon an Officer's Certificate which, upon receipt of
such request, shall be promptly delivered by the Depositor or the Administrative
Trustees;
(e) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may (at the expense of Depositor) consult with
counsel (which counsel may be counsel to the Depositor or any of its Affiliates,
and may include any of its employees) and the written advice of such 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; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to this Trust Agreement, unless
such Securityholders shall have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(h) the Property 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, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Securityholders, but the
Property Trustee may make such further inquiry or investigation into such facts
or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
agents or attorneys, provided that the Property Trustee shall not be responsible
for any negligence or misconduct on the part of any such agent or attorney
appointed with due care by it hereunder;
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(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder the Property
Trustee (i) may request instructions from the Holders of the Trust Securities
which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
Section 8.04 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. The
recitals contained herein and in the Trust Securities Certificates shall be
taken as the statements of the Trust and the Depositor, and the Trustees do not
assume any responsibility for their correctness. The Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of the
Debentures.
Section 8.05 MAY HOLD SECURITIES. Except as provided in the definition of
the term "Outstanding" in Article I, any Trustee or any other agent of any
Trustee or the Trust, in its individual or any other capacity, may become the
owner or pledgee of Trust Securities and, subject to Sections 8.08 and 8.13, may
otherwise deal with the Trust with the same rights it would have if it were not
a Trustee or such other agent.
Section 8.06 COMPENSATION; INDEMNITY; FEES.
The Depositor shall:
(a) pay to the Trustees from time to time reasonable compensation for
all services rendered by them hereunder and in the case of the Property Trustee,
such compensation as is separately agreed by the Depositor and the Property
Trustee (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust); and
(b) except as otherwise expressly provided herein, reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Trust
Agreement (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 (or, in the
case of the Administrative Trustees, any such expense, disbursement or advance
as may
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be attributable to its, his or her gross negligence, bad faith or willful
misconduct).
(c) indemnify each of the Trustees or any predecessor Trustee for, and
to hold the Trustees harmless against, any loss, damage, claims, liability, tax,
penalty or expense of any kind and nature whatsoever incurred without negligence
or bad faith on its part, arising out of or in connection with the acceptance or
administration of this Trust Agreement, 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 except any such expense,
disbursement or advance as may be attributable to such Trustee's negligence, bad
faith or willful misconduct (or, in the case of the Administrative Trustees, any
such expense, disbursement or advance as may be attributable to its, his or her
gross negligence, bad faith or willful misconduct). The provisions of this
Section 8.06 shall survive the termination of this Trust Agreement. To secure
the Trustees' rights under this Section 806, the Property Trustee shall have a
lien against the Trust Property which lien shall be subordinate to the rights of
the Securityholders but prior to the rights of Depositor as to any Trust
Property.
Section 8.07 CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF TRUSTEES.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
a national or state chartered bank and has a combined capital and surplus of at
least $50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section and to the extent permitted by
the Trust Indenture Act, 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 Property Trustee with
respect to the Trust Securities 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.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Trustee with respect to the Trust
Securities that shall either be (i) a natural person who is at least 21 years of
age and a resident of the State of Delaware or (ii) a legal entity with its
principal place of business in the State of Delaware and that otherwise meets
the requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
Section 8.08 CONFLICTING INTERESTS. If the Property Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Property Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Trust Agreement.
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Section 8.09 CO-TRUSTEES AND SEPARATE TRUSTEE. Unless an Event of Default
shall have occurred and be continuing, at any time or times, for the purpose of
meeting the legal requirements of any jurisdiction in which any part of the
Trust Property may at the time be located, the Depositor and the Administrative
Trustees, by agreed action of the majority of such Trustees, shall have power to
appoint, and upon the written request of the Administrative Trustees, the
Depositor shall for such purpose join with the Administrative Trustees in the
execution, delivery, and performance of all instruments and agreements necessary
or proper to appoint one or more Persons approved by the Property Trustee either
to act as co-trustee, jointly with the Property Trustee, of all or any part of
such Trust Property, or to the extent required by law, to act as separate
trustee of any such property, in either case with such powers as may be provided
in the instrument of appointment, and to vest in such Person or Persons in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Trust Agreement. If the
Depositor does not join in such appointment within 15 days after the receipt by
it of a request so to do, or in case a Debenture Event of Default has occurred
and is continuing, the Property Trustee alone shall also have the power to make
such appointment. Any co-trustee or separate trustee appointed pursuant to this
Section shall satisfy the requirements of Section 8.07. Should any written
instrument from the Depositor be required by any co-trustee or separate trustee
so appointed for more fully confirming to such co-trustee or separate trustee
such property, title, right, or power, any and all such instruments shall, on
request, be executed, acknowledged, and delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed by one or more Administrative
Trustees, and the Trust Securities shall be delivered by the Property Trustee,
and all rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or required to
be deposited or pledged with, the Trustees specified hereunder, shall be
exercised, solely by such Trustees and not by such co-trustee or separate
trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties, and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section, and, in case a Debenture Event of Default has occurred and is
continuing, the Property Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the concurrence of
the
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Depositor. Upon the written request of the Property Trustee, the Depositor shall
join with the Property Trustee in the execution, delivery, and performance of
all instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee, or any other
trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be deemed
to have been delivered to each such co-trustee and separate trustee.
Section 8.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. No
resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Relevant Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Relevant
Trustee in accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee may
resign at any time with respect to the Trust Securities by giving written notice
thereof to the Securityholders. If the instrument of acceptance by a successor
Relevant Trustee required by Section 8.11 shall not have been delivered to the
Relevant Trustee within 30 days after the giving of such notice of resignation,
the resigning Relevant Trustee may petition, at the expense of the Trust, any
court of competent jurisdiction for the appointment of a successor Relevant
Trustee with respect to the Trust Securities.
Subject to the following sentence, any of the Trustees may be removed at
any time by Act of the Common Securityholder. If a Debenture Event of Default
shall have occurred and be continuing, the Property Trustee may be removed at
such time by Act of the Holders of a majority in Liquidation Amount of the
Outstanding Capital Securities, delivered to the Property Trustee (in its
individual capacity and on behalf of the Trust). An Administrative Trustee may
be removed by the Common Securityholder at any time.
If the Relevant Trustee shall resign, be removed or become incapable of
continuing to act as Relevant Trustee, or if a vacancy shall occur in the office
of any Trustee for any cause, at a time when no Debenture Event of Default shall
have occurred and be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Relevant Trustee, shall promptly
appoint a successor Relevant Trustee or Trustees with respect to the Trust
Securities and the Trust, and the retiring Relevant Trustee shall comply with
the applicable requirements of Section 8.11. If the Property Trustee shall
resign, be removed or become incapable of continuing to act as the Property
Trustee at a time when a Debenture Event of Default shall have occurred and be
continuing, the Capital Securityholders, by Act of the Securityholders of a
majority in Liquidation Amount of the Capital Securities then Outstanding
delivered to the retiring Relevant Trustee, shall promptly appoint a successor
Relevant Trustee or Trustees with respect to the Trust Securities and the Trust,
and such successor Trustee shall comply with the applicable requirements of
Section 8.11. If an Administrative Trustee shall resign, be removed or become
incapable of continuing
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to act as Administrative Trustee at a time when a Debenture Event of Default
shall have occurred and be continuing, the Common Securityholder may appoint a
successor Administrative Trustee, which successor Trustee shall comply with the
applicable requirements of Section 8.11 or the Common Securityholder may reduce
the number of Administrative Trustees pursuant to Section 8.17(a). If no
successor Relevant Trustee with respect to the Trust Securities shall have been
so appointed by the Common Securityholder or the Capital Securityholders and
accepted appointment in the manner required by Section 8.11, any Securityholder
who has been a Securityholder of Trust Securities for at least six months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Relevant Trustee with
respect to the Trust Securities.
The Relevant Trustee shall give notice of each resignation and each
removal of the Relevant Trustee with respect to the Trust Securities and the
Trust and each appointment of a successor Relevant Trustee with respect to the
Trust Securities and the Trust to all Securityholders in the manner provided in
Section 10.09 and shall give notice to the Depositor. Each notice shall include
the name of the successor Relevant Trustee with respect to the Trust Securities
and the Trust and the address of its Corporate Trust Office if it is the
Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Property Trustee who is
a natural person dies or becomes incompetent or incapacitated, the vacancy
created by such death, incompetence or incapacity may be filled by (a) the
unanimous act of remaining Administrative Trustees if there are at least two of
them prior to such vacancy or (b) otherwise by the Depositor (with the successor
in each case being an individual who satisfies the eligibility requirement for
Administrative Trustees set forth in Section 8.07). Additionally,
notwithstanding the foregoing or any other provision of this Trust Agreement, in
the event the Depositor believes that any Administrative Trustee or a Property
Trustee who is a natural person, as the case may be, has become incompetent or
incapacitated, the Depositor, by notice to the remaining Trustees, may terminate
the status of such Person as an Administrative Trustee or a Property Trustee, as
the case may be (in which case the vacancy so created will be filled in
accordance with the preceding sentence).
Section 8.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. In case of the
appointment hereunder of a successor Relevant Trustee with respect to all Trust
Securities and the Trust, every such successor Relevant Trustee so appointed
shall execute, acknowledge and deliver to the Trust and to the retiring Relevant
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Relevant Trustee shall become effective and such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on the request of the Depositor or the successor Relevant
Trustee, such retiring Relevant Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Relevant
Trustee all the rights, powers and trusts of the retiring Relevant Trustee and
shall duly assign, transfer and deliver to such successor Relevant Trustee all
property and money held by such retiring Relevant Trustee hereunder.
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In case of the appointment hereunder of a successor Relevant Trustee with
respect to the Trust Securities and the Trust, the retiring Relevant Trustee and
each successor Relevant Trustee with respect to the Trust Securities shall
execute and deliver an amendment hereto wherein each successor Relevant Trustee
shall accept such appointment which (a) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and duties of the
retiring Relevant Trustee with respect to the Trust Securities and the Trust and
(b) shall add to or change any of the provisions of this Trust Agreement as
shall be necessary to provide for or facilitate the administration of the Trust
hereunder by more than one Relevant Trustee, it being understood that nothing
herein or in such amendment shall constitute such Relevant Trustees co-trustees
of the Trust and upon the execution and delivery of such amendment the
resignation or removal of the retiring Relevant Trustee shall become effective
to the extent provided therein and each such successor Relevant Trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust; but, on request of the Trust or any successor
Relevant Trustee such retiring Relevant Trustee shall duly assign, transfer and
deliver to such successor Relevant Trustee all Trust Property, all proceeds
thereof and money held by such retiring Relevant Trustee hereunder with respect
to the Trust Securities and the Trust. Upon request of any such successor
Relevant Trustee, the Trust shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor Relevant Trustee all
such rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be. No successor Relevant Trustee shall accept its
appointment unless at the time of such acceptance such successor Relevant
Trustee shall be qualified and eligible under this Article.
Section 8.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS
OF A TRUSTEE. Any Person into which the Property Trustee or any Administrative
Trustee which is not a natural person may be merged or converted or with which
it may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any Person
succeeding to all or substantially all the corporate trust business of any such
Relevant Trustee, shall be the successor of such Relevant Trustee hereunder,
provided such Person 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.
Section 8.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR TRUST.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Trust Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Trust Securities and to file such other
papers
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or documents as may be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
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 Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee. Nothing
herein contained shall be deemed to authorize the Property Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement adjustment or compensation affecting the Trust
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 8.14 REPORTS BY PROPERTY TRUSTEE.
(a) Within 60 days after December 31 of each year commencing with
December 31, 1999 the Property Trustee shall transmit by mail to all
Securityholders, as their names and addresses appear in the Securities Register,
and to the Depositor, a brief report dated as of such December 31 with respect
to: (i) its eligibility under Section 8.07 or, in lieu thereof, if to the best
of its knowledge it has continued to be eligible under said Section, a written
statement to such effect; (ii) a statement that the Property Trustee has
complied with all of its obligations under this Trust Agreement during the
twelve-month period (or, in the case of the initial report, the period since the
Closing Date) ending with such December 31 or, if the Property Trustee has not
complied in any material respect with such obligations, a description of such
non-compliance; and (iii) any change in the property and funds in its possession
as Property Trustee since the date of its last report and any action taken by
the Property Trustee in the performance of its duties hereunder which it has not
previously reported and which in its opinion materially affects the Trust
Securities.
(b) In addition, the Property Trustee shall transmit to Securityholders
such reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission
to Securityholders, be filed by the Property Trustee with the PORTAL System or
any successor thereto if the Capital Securities are listed thereon, or with the
Commission (in either case as may be required by the rules thereof) and with the
Depositor.
Section 8.15 REPORTS TO THE PROPERTY TRUSTEE. The Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by
Section
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314(a) of the Trust Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act.
Section 8.16 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. Each of the
Depositor and the Administrative Trustees on behalf of the Trust shall provide
to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Trust Agreement that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act shall be given in the form of an Officers'
Certificate.
Section 8.17 NUMBER OF TRUSTEES.
(a) The number of Trustees shall be four, provided that the Holder of
all the Common Securities, by written instrument may increase or decrease the
number of Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul, dissolve or terminate the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
Section 8.18 DELEGATION OF POWER.
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
2.07(a), including any governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time
to time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of the Trust, as set forth herein.
Section 8.19 VOTING. Except as otherwise provided in this Trust Agreement,
the consent or approval of the Administrative Trustees shall require consent or
approval by not less than a majority of the Administrative Trustees, unless
there are only two, in which case both must consent.
ARTICLE IX
TERMINATION AND LIQUIDATION
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Section 9.01 TERMINATION UPON EXPIRATION DATE. The Trust shall
automatically terminate on February 5, 2034 (the "Expiration Date") following
the distribution of the Trust Property in accordance with Section 9.04.
Section 9.02 EARLY TERMINATION. Upon the first to occur of any of the
following events (such first occurrence, an "Early Termination Event"):
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from the Depositor at
any time (which direction is optional and wholly within the discretion of the
Depositor and subject to the approval of the Federal Reserve if then required
under the applicable capital guidelines or policies of the Federal Reserve ) to
terminate the Trust and distribute Debentures to the Securityholders in exchange
for the Capital Securities;
(c) the redemption of all of the Capital Securities in connection with
the redemption of all the Debentures, subject to approval of the Federal Reserve
if then required under the applicable capital guidelines or policies of the
Federal Reserve; and
(d) the entry of an order for dissolution of the Trust shall have been
entered by a court of competent jurisdiction.
then the Trustees shall take such action as is required by Section 4.02 or
Section 9.04, as applicable, and as soon as practicable thereafter, the Trustees
shall cause to be filed a certificate of cancellation relating to the Trust with
the Secretary of State of the State of Delaware.
Section 9.03 TERMINATION. The respective obligations and responsibilities
of the Trustees and the Trust created and continued hereby shall terminate upon
the latest to occur of the following: (a) the distribution by the Property
Trustee to Securityholders upon the liquidation of the Trust pursuant to Section
9.04, or upon the redemption of all of the Trust Securities pursuant to Section
4.02, of all amounts required to be distributed hereunder upon the final payment
of the Trust Securities; (b) the payment of any expenses owed by the Trust; (c)
the discharge of all administrative duties of the Administrative Trustees,
including the performance of any tax reporting obligations with respect to the
Trust or the Securityholders; and (d) the filing of a certificate of
cancellation relating to the Trust with the Secretary of State of the State of
Delaware.
Section 9.04 LIQUIDATION.
(a) If an Early Termination Event specified in clause (a), (b) or (d) of
Section 9.02 occurs or upon the Expiration Date, the Trust shall be liquidated
by the Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to each Securityholder a Like Amount of Debentures,
subject to approval by the Federal Reserve, if then required under the
applicable capital guidelines or policies of the Federal Reserve, and subject to
Section 9.04(d). Notice of liquidation shall be given by the Property Trustee by
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first-class mail, postage prepaid, mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics by
which Holders may exchange Trust Securities Certificates for Debentures,
or if Section 9.04(d) applies, receive a Liquidation Distribution, as the
Administrative Trustees or the Property Trustee shall deem appropriate.
(b) Except where Section 9.02(c) or 9.04(d) applies, in order to effect
the liquidation of the Trust and distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 9.02 (c) or 9.04(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) The Depository Trust Company or its nominee, as the record
Holder of the Capital Securities, will receive a registered global certificate
representing the Debentures to be delivered upon such distribution, (iii) any
Capital Securities Certificates not held by The Depository Trust Company or its
nominee will be deemed to represent a Like Amount of Debentures, bearing accrued
and unpaid interest in an amount equal to the accumulated and unpaid
Distributors on such Trust Certificates until such certificates are so
surrendered (and until such certificates are so surrendered, no payments of
interest or principal will be made to Holders of Trust Securities Certificates
with respect to such Debentures), (iv) certificates representing a Like Amount
of Debentures will be issued to the Holder of the Common Securities
Certificates, upon surrender of such certificates to the Administrative Trustees
or their agent for exchange, (v) all rights of Securityholders holding Trust
Securities will cease, except the right of such Securityholders to receive
Debentures upon surrender of Trust Securities Certificates, and (vi) the
Depositor shall use its best efforts to have the Debentures listed for quotation
on the PORTAL system or such other quotation system as the Capital Securities
are then listed, if any.
(d) In the event that, notwithstanding the other provisions of this
Section 9.04, whether because of an order for dissolution entered by a court of
competent jurisdiction or payment at the stated maturity thereof of all
principal of and interest on the Debentures or otherwise, distribution of the
Debentures in the manner provided herein is determined by the Property Trustee
not to be practical, the Trust Property shall be liquidated, subject to approval
of the Federal Reserve, if then required under the applicable capital guidelines
or
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policies of the Federal Reserve, and the Trust shall be dissolved, wound-up or
terminated, by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution, winding-up or other
termination of the Trust, Securityholders will be entitled to receive out of the
assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors, an amount equal to the Liquidation
Amount per Trust Security plus accumulated and unpaid Distributions thereon to
the date of payment (such amount being the "Liquidation Distribution"). If, upon
any such dissolution, winding up or termination, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the Trust Securities
shall be paid on a pro rata basis (based upon Liquidation Amounts). The Holder
of the Common Securities will be entitled to receive Liquidation Distributions
upon any such dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Capital Securities, except that, if an Event of
Default specified in Section 501(1) or 501(2) of the Indenture has occurred and
is continuing, the Capital Securities shall have a priority over the Common
Securities. In the event the Capital Securities are issued in certificated form,
the Liquidation Distribution will be payable at (i) the Corporate Trust Office
of the Property Trustee, (ii) the principal office of any Paying Agent, or (iii)
the principal office of the Securities Registrar; provided payment of any
Liquidation Distribution may be made, at the option of the Administrative
Trustees, by check mailed to the address of the Person entitled thereto as such
address shall appear on the Securities Register or by wire transfer in
immediately available funds at such place and to such account as may be
designated by the Person entitled thereto as specified in the Securities
Register.
Section 9.05 MERGER, CONSOLIDATION, AMALGAMATION OR REPLACEMENT OF THE
TRUST. The Trust may not merge, consolidate or amalgamate with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except pursuant
to this Section 9.05. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Holders of the Capital
Securities or the Property Trustee, the Trust may merge, consolidate or
amalgamate with or into, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust organized as such
under the laws of any State; provided, that (a) such successor entity either (i)
expressly assumes all of the obligations of the Trust with respect to the
Capital Securities or (ii) substitutes for the Capital Securities other
securities having substantially the same terms as the Capital Securities (the
"Successor Securities") so long as the Successor Securities rank the same as the
Capital Securities rank in priority with respect to distributions and payments
upon liquidation, redemption and otherwise, (b) the Depositor expressly appoints
a trustee of such successor entity possessing the same powers and duties as the
Property Trustee as the holder of the Debentures, (c) the Successor Securities
are approved for quotation on the PORTAL System, (d) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Capital Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization, (e) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the
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Capital Securities (including any Successor Securities) in any material respect,
(f) such successor entity has a purpose substantially identical to that of the
Trust, (g) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Depositor has received an opinion from
independent counsel to the Trust experienced in such matters to the effect that
(i) such merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease does not adversely affect the rights, preferences and privileges of the
Holders of the Capital Securities (including any Successor Securities) in any
material respect, and (ii) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity will be required to register as an investment company under the
Investment Company Act and (h) the Depositor or any permitted successor or
assignee owns all of the common securities of such successor entity and
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee. Notwithstanding the
foregoing, the Trust shall not, except with the consent of Holders of 100% in
Liquidation Amount of the Capital Securities, consolidate, amalgamate, merge
with or into, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to any other entity or permit any other
entity to consolidate, amalgamate or merge with or into, or replace it if such
consolidation, amalgamation, merger, replacement, conveyance, transfer or lease
would cause the Trust or the successor entity to be classified as other than a
grantor trust for United States federal income tax purposes.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.01 EXPENSE AGREEMENT. It is the contemplation of the parties
that the Expense Agreement shall be entered into no later than February 5, 1999.
Section 10.02 LIMITATION OF RIGHTS OF SECURITYHOLDERS. The death,
incapacity, liquidation, dissolution, termination or bankruptcy of any Person
having an interest, beneficial or otherwise, in Trust Securities shall not
operate to terminate this Trust Agreement, nor entitle the legal representatives
or heirs of such Person or any Securityholder for such Person, to claim an
accounting, take any action or bring any proceeding in any court for a partition
or winding up of the arrangements contemplated hereby, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any of them.
Section 10.03 AMENDMENT. (a) This Trust Agreement may be amended from time
to time by the Trustees and the Depositor, without the consent of any
Securityholders, (i) with respect to acceptance of appointment by a successor
Trustee, (ii) to cure any ambiguity, correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Trust
Agreement, provided such amendment is not inconsistent with the other provisions
of this Trust Agreement, or (iii) to modify, eliminate or add to any provisions
of this Trust Agreement to such extent as shall be necessary to ensure that the
Trust will be classified for United States Federal income tax purposes as a
grantor trust at all times that any Trust Securities are outstanding or to
ensure that the Trust will not be required to register as an "investment
company" under
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the Investment Company Act of 1940, as amended; provided, however, that in the
case of either clause (ii) or clause (iii), such action shall not adversely
affect in any material respect the interests of any Securityholder and any
amendments of this Trust Agreement shall become effective when notice thereof is
given to the Securityholders.
(b) Except as provided in Section 10.03(c) hereof, any provision of this
Trust Agreement may be amended by the Trustees and the Depositor with (i) the
consent of Trust Securityholders representing not less than a majority in
Liquidation Amount of the Trust Securities then Outstanding and (ii) the receipt
by the Trustees of an Opinion of Counsel to the effect that such amendment or
the exercise of any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust for United
States Federal income tax purposes or the Trust's exemption from status as an
"investment company" under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Securityholder (such consent
being obtained in accordance with Section 6.03 or 6.06 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein without the unanimous consent of the Securityholders
(such consent being obtained in accordance with Section 6.03 or 6.06 hereof),
paragraph (b) of this Section 10.03 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to (i) fail or cease to qualify, as evidenced by an
Opinion of Counsel, for an exemption from status of an "investment company"
under the Investment Company Act, or (ii) fail or cease to be classified, as
evidenced by an Opinion of Counsel, as a grantor trust for United States federal
income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor and the Administrative Trustees, this Trust
Agreement may not be amended in a manner which imposes any additional obligation
on the Depositor or the Administrative Trustees.
(f) In the event that any amendment to this Trust Agreement is made, the
Administrative Trustees shall promptly provide to the Depositor a copy of such
amendment.
(g) The Property Trustee shall not be required to enter into any
amendment to this Trust Agreement which affects its own rights, duties or
immunities under this Trust Agreement. The Property Trustee shall be entitled to
receive an Opinion of Counsel and an Officers' Certificate stating that any
amendment to this Trust Agreement is in compliance with this Trust Agreement.
Section 10.04 SEVERABILITY. In case any provision in this Trust Agreement
or in the Trust Securities Certificates shall be invalid, illegal or
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unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 10.05 GOVERNING LAW. THIS TRUST AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE DEPOSITOR, THE TRUST AND THE
TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE
WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS.
Section 10.06 PAYMENTS DUE ON NON-BUSINESS DAY. If the date fixed for any
payment on any Trust Security shall be a day which is not a Business Day, then
such payment need not be made on such date but may be made on the next
succeeding day which is a Business Day (except as otherwise provided in Section
4.01(a) and 4.02(d)), with the same force and effect as though made on the date
fixed for such payment, and no Distribution shall accumulate on such unpaid
amount thereon for the period after such date.
Section 10.07 SUCCESSORS. This Trust Agreement shall be binding upon and
shall inure to the benefit of any successor to the Depositor, the Trust or any
Relevant Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article VIII of the Indenture and pursuant to which the assignee
agrees in writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder.
Section 10.08 HEADINGS. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
Section 10.09 REPORTS, NOTICES AND DEMANDS. Any report, notice, demand or
other communication which by any provision of this Trust Agreement is required
or permitted to be given or served to or upon any Securityholder or the
Depositor shall be given or served in writing by deposit thereof, postage
prepaid, in the United States mail, hand delivery or facsimile transmission, in
each case, addressed, (a) in the case of a Capital Securityholder, to such
Capital Securityholder as such Securityholder's name and address may appear on
the Securities Register; and (b) in the case of the Common Securityholder or the
Depositor, to VIB Corp, 1498 Main Street, El Centro, California 92243,
Attention: Mr. Harry G. Gooding, III, Facsimile No.: (760) 337-3229. Such
notice, demand or other communication to or upon a Securityholder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Trust, the Property Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the Trust) as follows:
(a) with respect to the Property Trustee, to Wilmington Trust Company, Rodney
Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001,
Attention: Corporate Trust Administration; and (b) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention: Administrative Trustees of Valley Capital Trust."
Such notice, demand or other communication to or upon the Trust or the Property
53
<PAGE> 58
Trustee shall be deemed to have been sufficiently given or made only upon actual
receipt of the writing by the Trust or the Property Trustee.
Section 10.10 AGREEMENT NOT TO PETITION. Each of the Trustees and the
Depositor agree for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been terminated in accordance with Article
IX, they shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, reorganization, arrangement, insolvency, liquidation or
other similar law (including, without limitation, the United States Bankruptcy
Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of
any proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.10, the Property Trustee
agrees, for the benefit of Securityholders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Property Trustee
or the Trust may assert. The provisions of this Section 10.10 shall survive the
termination of this Trust Agreement.
Section 10.11 TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that would be required to be part of this Trust Agreement if this
Trust Agreement is qualified thereunder, and shall, to the extent applicable, be
governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which would be required to be included in this Trust Agreement
by any of the provisions of the Trust Indenture Act, pursuant to Section
10.11(a) hereof, such required provision shall control. If any provision of this
Trust Agreement modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Trust Agreement as so modified or to be excluded, as the case may
be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Securities as securities representing
undivided beneficial interests in the assets of the Trust.
Section 10.12 RIGHTS UNDER INDENTURE. The Trust may not assign any of its
rights under the Indenture without the prior written consent of the Depositor.
Section 10.13 EFFECTIVENESS. This Trust Agreement shall become effective
when signed by the Depositor and the Bank.
Section 10.14 INTENTION OF THE PARTIES. It is the intention of the parties
hereto that the Trust not be characterized for United States federal income tax
purposes as a corporation or a partnership, but rather that the Trust
54
<PAGE> 59
be characterized as a grantor trust or otherwise in a manner and that each Owner
be treated as owning an undivided beneficial interest in the assets of the
Trust. The provisions of this Trust Agreement shall be interpreted to further
this intention of the parties.
Section 10.15 COUNTERPARTS. This Trust Agreement may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 10.16 ACCEPTANCE OF TERMS OF TRUST AGREEMENT GUARANTEE AND
INDENTURE. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THOSE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
VIB CORP as Depositor
By: /s/ HARRY G. GOODING, III
--------------------------------------
Name: Harry G. Gooding, III
Title: Executive Vice President and CFO
55
<PAGE> 60
WILMINGTON TRUST COMPANY,
as Property Trustee
By: /s/ JAMES P. LAWLER
--------------------------------------
Name: James P. Lawler
Title: Vice President
By: /s/ RICHARD D. FOSS
--------------------------------------
Name: Richard D. Foss
Title: Administrative Trustee
By: /s/ DENNIS L. KERN
--------------------------------------
Name: Dennis L. Kern
Title: Administrative Trustee
By: /s/ HARRY G. GOODING, III
--------------------------------------
Name: Harry G. Gooding, III
Title: Administrative Trustee
56
<PAGE> 61
EXHIBIT A
TRUST AGREEMENT
This TRUST AGREEMENT is made this 10th day of December, 1998 (this "Trust
Agreement"), by and among (i) VIB CORP, a California corporation (the
"Depositor"), (ii) Wilmington Trust Company, a Delaware banking corporation, as
trustee, and (iii) Richard D. Foss, Harry G. Gooding, III and Dennis L. Kern,
each an individual, as trustees (each of such trustees in (ii) and (iii) a
"Trustee" and collectively, the "Trustees"). The Depositor and the Trustees
hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "Valley
Capital Trust," in which name the Trustees, or the Depositor to the extent
provided herein, may engage in the transactions contemplated hereby, make and
execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustees the sum of $10.00. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitutes a business trust under Chapter 38 of Title 12
of the Delaware Code, 12 Del. C. Section 3801, et seq. (the "Business Trust
Act"), and that this document constitutes the governing instrument of the Trust.
The Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in accordance with the
provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and substantially in
the form included as an exhibit to the Offering Memorandum (as defined below),
to provide for the contemplated operation of the Trust created hereby and the
issuance of the Preferred Securities and Common Securities referred to therein.
Prior to the execution and delivery of such amended and restated Trust
Agreement, the Trustees shall not have
-1-
<PAGE> 62
any duty or obligation hereunder or with respect to the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior to
such execution and delivery of any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to prepare a Private Placement
Offering Memorandum in accordance with the provisions of Regulation D under the
Securities Act of 1933, as amended, for the purposes of offering for sale the
Preferred Securities of the Trust and possibly certain other securities; (ii) to
file and execute on behalf of the Trust such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process and
other papers and documents as shall be necessary or desirable to register the
Preferred Securities under the
-2-
<PAGE> 63
securities or blue sky laws of such jurisdictions as the Depositor, on behalf of
the Trust, may deem necessary or desirable; and (iii) to execute on behalf of
the Trust that certain Purchase Terms Agreement relating to the Preferred
Securities, among the Trust, the Depositor and the Underwriter named therein,
substantially in the form provided to the Depositor. In the event that any
filing referred to in clause (ii) above is required by the rules and regulations
of the state securities or blue sky laws to be executed on behalf of the Trust
by one or more of the Trustees, each of the Trustees, in its or his capacity as
a Trustee of the Trust, is hereby authorized and, to the extent so required,
directed to join in any such filing and to execute on behalf of the Trust any
and all of the foregoing, it being understood that Wilmington Trust Company in
its capacity as a Trustee of the Trust shall not be required to join in any such
filing or execute on behalf of the Trust any such document unless required by
the rules and regulations of the state securities or blue sky laws. In
connection with the filings referred to above, the Depositor and Richard D.
Foss, Harry G. Gooding, III and Dennis L. Kern, each as Trustees and not in
their individual capacities, hereby constitutes and appoints Richard D. Foss,
Harry G. Gooding, III and Dennis L. Kern, and each of them, as its true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the Depositor or such Trustee or in the Depositor's or such
Trustees' name, place and stead, in any and all capacities, to sign any and all
amendments to the Private Placement Offering Memorandum and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
administrators of the state securities or blue sky laws, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Depositor or such Trustee might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their respective substitute or
substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
-3-
<PAGE> 64
6. The number of Trustees initially shall be four, and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Depositor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any Trustee at any
time. The Trustees may resign upon 30 days' prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws of principles).
-4-
<PAGE> 65
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
VIB Corp
as Depositor
By: /s/ DENNIS L. KERN
---------------------------------
Its: President and CEO
--------------------------------
WILMINGTON TRUST COMPANY
as Trustee
By: /s/ DEBRA EBERLY
---------------------------------
Its: Administrative Account Manager
--------------------------------
/s/ RICHARD D. FOSS
-----------------------------------
RICHARD D. FOSS,
as Trustee
/s/ HARRY G. GOODING, III
-----------------------------------
HARRY G. GOODING, III
as Trustee
/s/ DENNIS L. KERN
-----------------------------------
DENNIS L. KERN
as Trustee
-5-
<PAGE> 66
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO THE DEPOSITOR OR AN AFFILIATE OF
THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST
AGREEMENT
Certificate Number C-1 Number of Common Securities ___________
Certificate Evidencing Common Securities
of
Valley Capital Trust
9.00% Common Securities
(Liquidation amount $1,000 per Common Security)
Valley Capital Trust, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that VIB Corp (the
"Holder") is the registered owner of ________ (________) common securities of
the Trust representing undivided beneficial interests in the assets of the Trust
and designated the ____% Common Securities (liquidation amount $1,000 per Common
Security) (the "Common Securities"). Except in accordance with Section 5.10 of
the Trust Agreement (as defined below) the Common Securities are not
transferable and any attempted transfer hereof other than in accordance
therewith shall be void. The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities are set
forth in, and this certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust dated as of February 5, 1999,
among the Holder, as Depositor, Wilmington Trust Company, as Property Trustee,
the Administrative Trustees named therein, and the holders, from time to time,
of undivided beneficial interests in the assets of the Trust, as the same may be
amended from time to time (the "Trust Agreement") including the designation of
the terms of the Common Securities as set forth therein. The Trust will furnish
a copy of the Trust Agreement to the Holder without charge upon written request
to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in the Trust
Agreement.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this ____ day of _____________, 199__.
-6-
<PAGE> 67
VALLEY CAPITAL TRUST
By: _____________________________________
Name: _________________________________
Title: Administrative Trustee
<PAGE> 68
EXHIBIT C
[INSERT IF THE CAPITAL SECURITY IS TO BE A GLOBAL CERTIFICATE - This
Capital Security is a Global Capital Securities Certificate within the meaning
of the Trust Agreement hereinafter referred to and is registered in the name of
The Depository Trust Company, a New York corporation (the "DTC") or a nominee of
the DTC. This Capital Security is exchangeable for Capital Securities
Certificates registered in the name of a person other than the DTC or its
nominee only in the limited circumstances described in the Trust Agreement and
no transfer of this Capital Security (other than a transfer of this Capital
Security as a whole by the DTC to a nominee of the DTC or by a nominee of the
DTC) may be registered except in limited circumstances described in the Trust
Agreement.
Unless this Capital Security is presented by an authorized representative
of the DTC to Valley Capital Trust or its agent for registration of transfer,
exchange or payment, and any Capital Securities Certificate issued is registered
in the name of Cede & Co. or in such other name as is requested by an authorized
representative of the DTC (and any payment hereon is made to Cede & Co. or to
such other entity as requested by an authorized representative of the DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL, since the registered owner hereof, Cede & Co., has an interest
herein.]
<TABLE>
<S> <C> <C>
Certificate Number P- Number of Capital Securities _____________ CUSIP NO. 919379 AA5
</TABLE>
Certificate Evidencing Capital Securities
of
Valley Capital Trust
9.00% Capital Securities
(Liquidation amount $1,000 per Capital Security)
Valley Capital Trust, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that _________________
(the "Holder") is the registered owner of _______________ (___________) Capital
Securities of the Trust representing an undivided beneficial interest in the
assets of the Trust and designated the Valley Capital 9.00% Capital Securities
(liquidation amount $1,000 per Capital Security) (the "Capital Securities"). The
Capital Securities are transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer as provided in Section 5.04 of the
Trust Agreement (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Capital
Securities are set forth in, and this certificate and the Capital Securities
represented hereby and issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the trust dated
1
<PAGE> 69
as of February 5, 1999, among VIB Corp, a California corporation, as Depositor,
Wilmington Trust Company, as Property Trustee, the Administrative Trustees named
therein, and the holders, from time to time, of undivided beneficial interests
in the assets of the Trust, as the same may be amended from time to time (the
"Trust Agreement") including the designation of the terms of Capital Securities
as set forth therein. The Holder is entitled to the benefits of the Guarantee
Agreement entered into by VIB Corp, a California corporation, and Wilmington
Trust Company as guarantee trustee, dated as of February 5, 1999 (the
"Guarantee") to the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Guarantee to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate as of the date hereof.
Dated: VALLEY CAPITAL TRUST
By: _____________________________________
Name: __________________________________
Title: Administrative Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the 9.00% Capital Securities referred to in the Amended and
Restated Trust Agreement.
WILMINGTON TRUST COMPANY,
AS AUTHENTICATION AGENT AND REGISTRAR
By: _____________________________________
Name: __________________________________
Title:___________________________________
2
<PAGE> 70
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
Security to:
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Insert assignee's social security or tax identification number)
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
agent to transfer this Capital Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: ________________
Signature: ______________________________ (Sign exactly as your name
appears on the other side of this Capital Security Certificate)
Signature(s) Guaranteed: The signature(s) should be guaranteed by an
eligible guarantor institution (banks, stockbrokers, savings and loan
associations and credit unions with membership in an approved signature
guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.
THIS CAPITAL SECURITY 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 CAPITAL SECURITY 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.
3
<PAGE> 71
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER THIS CAPITAL SECURITY, 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 CAPITAL
SECURITY (OR ANY PREDECESSOR OF THIS CAPITAL SECURITY) 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 CAPITAL SECURITY 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 CAPITAL SECURITY 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, (E) TO AN INDIVIDUAL ACCREDITED
INVESTOR WITHIN THE MEANING OF SUBPARAGRAPH (A)(5) OR (6) OF RULE 501 UNDER THE
SECURITIES ACT, RESIDING IN ONE OF THE JURISDICTIONS AUTHORIZED BY THE COMPANY,
THAT IS PURCHASING THE CAPITAL SECURITIES FOR ITS OWN ACCOUNT 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 (F) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT,
SUBJECT TO THE RIGHT OF THE TRUST AND THE COMPANY PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER (i) PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, (ii) PURSUANT TO CLAUSE (D) TO REQUIRE THAT THE TRANSFEROR DELIVER TO
THE TRUST A LETTER FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF APPENDIX C
TO THE OFFERING MEMORANDUM DATED JANUARY 29, 1999, AND (iii) PURSUANT TO CLAUSE
(E) TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE TRUST OR OTHER TRANSFER AGENT
A QUESTIONNAIRE AND INVESTMENT AGREEMENT, EACH OF WHICH IS AVAILABLE FROM THE
COMPANY. SUCH HOLDER FURTHER AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS CAPITAL SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
4
<PAGE> 1
EXHIBIT 4.7
GUARANTEE AGREEMENT
BETWEEN
VIB CORP
(AS GUARANTOR)
AND
WILMINGTON TRUST COMPANY
(AS GUARANTY TRUSTEE)
DATED AS OF
FEBRUARY 5, 1999
<PAGE> 2
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
SECTION OF SECTION OF
TRUST INDENTURE ACT GUARANTEE
OF 1939, AS AMENDED AGREEMENT
- ------------------- ----------
<S> <C>
310(a)......................................................................................................4.01(a)
310(b)................................................................................................4.01(c), 2.08
310(c).................................................................................................Inapplicable
311(a)......................................................................................................2.02(b)
311(b) .....................................................................................................2.02(b)
311(c).................................................................................................Inapplicable
312(a) .....................................................................................................2.02(a)
312(b)......................................................................................................2.02(b)
313 ...........................................................................................................2.03
314(a).........................................................................................................2.04
314(b).................................................................................................Inapplicable
314(c).........................................................................................................2.05
314(d).................................................................................................Inapplicable
314(e).............................................................................................1.01, 2.05, 3.02
314(f)...................................................................................................2.01, 3.02
315(a)......................................................................................................3.01(d)
315(b).........................................................................................................2.07
315(c).........................................................................................................3.01
315(d)......................................................................................................3.01(d)
316(a)................................................................................................5.04(a), 2.06
316(b).........................................................................................................5.03
316(c).........................................................................................................2.02
317(a).................................................................................................Inapplicable
317(b).................................................................................................Inapplicable
318(a)......................................................................................................2.01(b)
318(b).........................................................................................................2.01
318(c)......................................................................................................2.01(a)
</TABLE>
- --------
*This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
i
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I - DEFINITIONS...........................................................................................1
SECTION 1.01. DEFINITIONS...............................................................................1
ARTICLE II - TRUST INDENTURE ACT..................................................................................4
SECTION 2.01. TRUST INDENTURE ACT; APPLICATION..........................................................4
SECTION 2.02. LISTS OF HOLDERS..........................................................................4
SECTION 2.03. REPORTS BY THE GUARANTEE TRUSTEE..........................................................5
SECTION 2.04. PERIODIC REPORTS TO GUARANTEE TRUSTEE.....................................................5
SECTION 2.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT.......................................................................................5
SECTION 2.06. EVENTS OF DEFAULT; WAIVER.................................................................5
SECTION 2.07. EVENT OF DEFAULT; NOTICE..................................................................5
SECTION 2.08. CONFLICTING INTERESTS.....................................................................6
ARTICLE III - POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE......................................................6
SECTION 3.01. POWERS AND DUTIES OF THE GUARANTEE TRUSTEE................................................6
SECTION 3.02. CERTAIN RIGHTS OF GUARANTEE TRUSTEE.......................................................8
SECTION 3.03. INDEMNITY.................................................................................9
ARTICLE IV - GUARANTEE TRUSTEE....................................................................................9
SECTION 4.01. GUARANTEE TRUSTEE; ELIGIBILITY............................................................9
SECTION 4.02. APPOINTMENT, REMOVAL AND RESIGNATION OF
GUARANTEE TRUSTEE..............................................................................10
ARTICLE V - GUARANTEE............................................................................................11
SECTION 5.01. GUARANTEE................................................................................11
SECTION 5.02. WAIVER OF NOTICE AND DEMAND..............................................................11
SECTION 5.03. OBLIGATIONS NOT AFFECTED.................................................................11
SECTION 5.04. RIGHTS OF HOLDERS........................................................................12
SECTION 5.05. GUARANTEE OF PAYMENT.....................................................................12
SECTION 5.06. SUBROGATION..............................................................................12
SECTION 5.07. INDEPENDENT OBLIGATIONS..................................................................12
ARTICLE VI - COVENANTS AND SUBORDINATION.........................................................................13
SECTION 6.01. COVENANTS................................................................................13
SECTION 6.02. SUBORDINATION............................................................................13
SECTION 6.03. PARI PASSU GUARANTEES....................................................................13
ARTICLE VII - TERMINATION........................................................................................14
SECTION 7.01. TERMINATION..............................................................................14
ARTICLE VIII - MISCELLANEOUS.....................................................................................14
SECTION 8.01. SUCCESSORS AND ASSIGNS...................................................................14
SECTION 8.02. AMENDMENTS...............................................................................14
SECTION 8.03. NOTICES..................................................................................14
SECTION 8.04. BENEFIT..................................................................................15
SECTION 8.05. INTERPRETATION...........................................................................16
SECTION 8.06. GOVERNING LAW............................................................................16
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
SECTION 8.07. COUNTERPARTS.............................................................................16
</TABLE>
iii
<PAGE> 5
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of February 5, 1999, is executed and
delivered by VIB Corp, a California corporation (the "Guarantor"), to Wilmington
Trust Company, a Delaware banking corporation, as trustee (the "Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from time to time
of the Capital Securities (as defined herein) of Valley Capital Trust, a
Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the "Trust
Agreement"), dated as of February 5, 1999 among the Trustees of the Issuer named
therein, the Guarantor, as Depositor (as defined in the Trust Agreement), and
the Holders, from time to time, of undivided beneficial interests in the assets
of the Trust, the Issuer is issuing up to $23,000,000 aggregate liquidation
amount of its 9.00% Capital Securities (liquidation amount $1,000 per capital
security) (the "Capital Securities" and, together with the Common Securities,
the "Trust Securities") and up to $712,000 aggregate liquidation amount of its
Common Securities, each representing ownership interests in the assets of the
Issuer and having the terms set forth in the Trust Agreement;
WHEREAS, the Trust Securities will be issued by the Issuer and the
proceeds thereof will be used to purchase the Debentures (as defined in the
Trust Agreement) of the Guarantor which will be deposited with Wilmington Trust
Company, as Property Trustee under the Trust Agreement, as trust assets; and
WHEREAS, as an incentive for the Holders to purchase Capital Securities
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth herein, to pay to the Holders the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the purchase by each Holder of Capital
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders from time to time of the Capital Securities.
ARTICLE I
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DEFINITIONS
SECTION 1.01. DEFINITIONS. As used in this Guarantee Agreement, the terms
set forth below shall, unless the context otherwise requires, have the following
meanings. Capitalized or otherwise defined terms used but not otherwise defined
herein shall have the meanings assigned to such terms in the Trust Agreement as
in effect on the date hereof unless otherwise indicated.
"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, provided, however that an Affiliate of the
Guarantor shall not be deemed to include the Issuer. 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.
"Capital Securities" has the meaning specified in the recitals to this
Guarantee Agreement.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer (liquidation amount $1,000 per
Common Security).
"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
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,
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such Person has guaranteed or is responsible or liable for, directly or
indirectly, as obligor or otherwise.
"Event of Default" means (i) a default by the Guarantor on any of its
payment obligations under this Guarantee Agreement or (ii) a default by the
Guarantor in any other obligation hereunder that remains unremedied for 30 days.
"Guarantee" or "Guarantee Agreement" means this Guarantee Agreement, dated
as of February 5, 1999, between VIB Corp and the Guarantee Trustee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Capital Securities, to the extent not
paid or made by or on behalf of the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Trust Agreement) required to be paid on the
Capital Securities, to the extent the Issuer shall have funds available therefor
at such time; (ii) the Redemption Price (as defined in the Trust Agreement) with
respect to the Capital Securities called for redemption by the Issuer to the
extent the Issuer shall have funds available therefor at such time; and (iii)
upon a voluntary or involuntary dissolution, winding-up or liquidation of the
Issuer (other than in connection with the distribution of Debentures to the
Holders or a redemption of all of the Capital Securities), the lesser of (a) the
Liquidation Distribution (as defined in the Trust Agreement) to the extent the
Issuer shall have funds available therefor at such time, and (b) the amount of
assets of the Issuer remaining available for distribution to Holders in
liquidation of the Issuer after satisfaction of liabilities to creditors of the
Issuer as required by applicable law.
"Guarantee Trustee" means Wilmington Trust Company, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
"Holder" means any holder, as registered on the books and records of the
Issuer, of any Capital Securities; provided, however, that in determining
whether the holders of the requisite percentage of Capital Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor, the Guarantee Trustee or any Affiliate of the Guarantor or the
Guarantee Trustee.
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"Indenture" means the Junior Subordinated Indenture dated as of February
5, 1999, between the Guarantor and Wilmington Trust Company, as trustee.
"Majority in Liquidation Amount of the Capital Securities" means, except
as provided by the Trust Indenture Act, Capital Securities representing more
than 50% of the liquidation amount of all then outstanding Capital Securities.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chairman of the Board, Vice Chairman of the Board, Chief
Investment Officer, Chief Executive Officer, the President or a Vice President,
and by the Chief Financial Officer, Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of such Person, and delivered to the
Guarantee Trustee. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Guarantee Agreement
shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions 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.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
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"Responsible Officer" means, with respect to the Guarantee Trustee, any
Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, any financial services
officer or any other officer of the Corporate Trust Administration Department of
the Guarantee Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"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 Guarantor 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 Guarantee 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 Guarantee or to other Debt which is pari
passu with, or subordinated to, the Guarantee; provided, however, that Senior
Debt shall not be deemed to include: (a) any Debt of the Guarantor 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 Guarantor; (b) any
Debt of the Guarantor to any of its Subsidiaries (as defined in the Indenture);
(c) Debt to any employee of the Guarantor; (d) trade accounts payable of the
Guarantor; (e) accrued liabilities arising in the ordinary course of business of
the Guarantor; (f) the Debentures; and (g) the Guarantee.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. TRUST INDENTURE ACT; APPLICATION.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act, which are required to be part of this Guarantee
Agreement, and this Guarantee shall be governed by such provisions
as if such Act applied to this Guarantee.
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections
310 to 317, inclusive, of the Trust Indenture Act through operation
of Section 318(c) thereof, such imposed duties shall control. If any
provision of this Guarantee Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or
excluded, such provision shall be deemed to apply to this Guarantee
Agreement as so modified or excluded, as the case may be.
SECTION 2.02. LISTS OF HOLDERS.
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (i) quarterly, not later than April 15, July 15,
October 15 and January 15 in each year, a list, in such form as the
Guarantee Trustee may reasonably require, of the names and addresses
of the Holders of the Capital Securities ("List of Holders") as of a
date not more than 15 days prior to the delivery thereof, and (ii)
at such other times as the Guarantee Trustee may request in writing,
within 30 days after the receipt by the Guarantor of any such
request, a List of Holders 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 Guarantor and has
not otherwise been received by the Guarantee Trustee in its capacity
as such. The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
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(b) The Guarantee Trustee shall comply with its obligations under
Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture
Act.
SECTION 2.03. REPORTS BY THE GUARANTEE TRUSTEE. Not later than July 15 of
each year, commencing July 15, 1999, the Guarantee Trustee shall provide to the
Holders such reports as are required by Section 313 of the Trust Indenture Act,
if any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.04. PERIODIC REPORTS TO GUARANTEE TRUSTEE. The Guarantor shall
provide to the Guarantee Trustee, the Securities and Exchange Commission and the
Holders such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by
Section 314 of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act as if such Act were
applicable to this Guarantee.
SECTION 2.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. The
Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Guarantee Agreement
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.06. EVENTS OF DEFAULT; WAIVER. The Holders of a Majority in
liquidation amount of the Capital Securities may, by vote, on behalf of the
Holders of all of the Capital Securities, waive any past default or Event of
Default and its consequences. Upon such waiver, any such default or Event of
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Guarantee Agreement, but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
SECTION 2.07. EVENT OF DEFAULT; NOTICE.
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(a) The Guarantee Trustee shall, within 90 days after the occurrence of
an Event of Default, transmit by mail, first class postage prepaid,
to the Holders of the Capital Securities, notices of all Events of
Default known to the Guarantee Trustee, unless such Event of Default
has been cured before the giving of such notice, provided that,
except in the case of a default in the payment of a Guarantee
Payment, the Guarantee 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 Guarantee Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the
Capital Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received
written notice, or a Responsible Officer charged with the
administration of this Guarantee Agreement shall have obtained
actual knowledge, of such Event of Default.
SECTION 2.08. CONFLICTING INTERESTS. The Trust Agreement and the Indenture
shall be deemed to be specifically described in this Guarantee Agreement for the
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.01. POWERS AND DUTIES OF THE GUARANTEE TRUSTEE.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for
the benefit of the Holders of the Capital Securities, and the
Guarantee Trustee shall not transfer this Guarantee Agreement to any
Person except a Holder of Capital Securities exercising his or her
rights pursuant to Section 5.04(iv) of the Amended and Restated
Trust Agreement dated February 5, 1999, or to a Successor Guarantee
Trustee on acceptance by such Successor Guarantee Trustee of its
appointment to act as Successor Guarantee Trustee. The right, title
and interest of the Guarantee Trustee shall automatically vest in
any
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Successor Guarantee Trustee, upon acceptance by such Successor
Guarantee Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of
the Holders of the Capital Securities.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are
specifically set forth in this Guarantee Agreement, and no implied
covenants shall be read into this Guarantee Agreement against the
Guarantee Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.06), the
Guarantee Trustee shall exercise such of the rights and powers
vested in it by this Guarantee Agreement, and use the same degree of
care and skill in its exercise thereof, as a prudent individual
would exercise or use under the circumstances in the conduct of his
or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of
this Guarantee Agreement (including pursuant to Section
2.01), and the Guarantee Trustee shall not be liable
except for the performance of such duties and
obligations as are specifically set forth in this
Guarantee Agreement; and
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(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as
to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and
conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or
opinions that by any provision hereof or of the Trust
Indenture Act are specifically required to be furnished
to the Guarantee Trustee, the Guarantee Trustee shall be
under a duty to examine the same to determine whether or
not they conform to the requirements of this Guarantee
Agreement or the Trust Indenture Act, as applicable;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the
Guarantee Trustee was negligent in ascertaining the pertinent
facts upon which such judgment was made;
(iii) the Guarantee 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 the Holders of not less than
a Majority in Liquidation Amount of the Capital Securities
relating to the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee,
or exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any
of its duties or in the exercise of any of its rights or
powers, if the Guarantee Trustee shall have reasonable grounds
for believing that the repayment of such funds or liability is
not reasonably assured to it
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under the terms of this Guarantee Agreement or adequate
indemnity against such risk or liability is not reasonably
assured to it.
SECTION 3.02. CERTAIN RIGHTS OF GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.01:
(i) The Guarantee Trustee may rely and shall be fully protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement,
the Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting any
action hereunder, the Guarantee Trustee (unless other evidence
is herein specifically prescribed) may, in the absence of bad
faith on its part, request and rely upon an Officers'
Certificate which, upon receipt of such request from the
Guarantee Trustee, shall be promptly delivered by the
Guarantor.
(iv) The Guarantee Trustee may (at the expense of the Guarantor)
consult with legal counsel, and the written advice or opinion
of such legal counsel with respect to legal matters 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 accordance with such advice or opinion. Such
legal counsel may be legal counsel to the Guarantor or any of
its Affiliates and may be one of its employees. The Guarantee
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Trustee shall have the right at any time to seek instructions
concerning the administration of this Guarantee Agreement from
any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless
such Holder shall have provided to the Guarantee Trustee such
adequate security and indemnity as would satisfy a reasonable
person in the position of the Guarantee Trustee, against the
costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with
such request or direction, including such reasonable advances
as may be requested by the Guarantee Trustee; provided that,
nothing contained in this Section 3.02(a)(v) shall be taken to
relieve the Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and
powers vested in it by this Guarantee Agreement.
(vi) The Guarantee 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,
debenture, note, other evidence of indebtedness or other paper
or document, but the Guarantee Trustee, in its discretion, may
make such further inquiry or investigation into such facts or
matters as it may see fit.
(vii) The Guarantee 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 Guarantee Trustee
shall not be responsible for any misconduct or negligence on
the part of any such agent or attorney appointed with due care
by it hereunder.
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(viii) Whenever in the administration of this Guarantee Agreement
the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Guarantee Trustee (A)
may request instructions from the Holders of the Capital
Securities, (B) may refrain from enforcing such remedy or
right or taking such other action until such instructions are
received, and (C) shall be protected in acting in accordance
with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose
any duty or obligation on the Guarantee Trustee to perform any act
or acts or exercise any right, power, duty or obligation conferred
or imposed on it in any jurisdiction in which it shall be illegal,
or in which the Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such
act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the
Guarantee Trustee shall be construed to be a duty to act in
accordance with such power and authority.
SECTION 3.03. INDEMNITY. The Guarantor agrees to indemnify the Guarantee
Trustee for, and to hold it harmless against, any loss, damage, claims,
liability, penalty or expense incurred without negligence or bad faith on the
part of the Guarantee Trustee, arising out of or in connection with the
acceptance or administration of this Guarantee Agreement, 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. The
Guarantee Trustee will not claim or exact any lien or charge on any Guarantee
Payments as a result of any amount due to it under this Guarantee Agreement.
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ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.01. GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that would be eligible pursuant to the Trust
Indenture Act (as if such Act were applicable hereto) to act
as such and has a combined capital and surplus of at least
Fifty Million U.S. Dollars ($50,000,000), and shall be a
corporation meeting the requirements of Section 310(a) of the
Trust Indenture Act. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of a supervising or examining authority, then,
for the purposes of this Section 4.01(a)(ii) and to the extent
permitted by the Trust Indenture Act, the combined capital and
surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.01(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in
Section 4.02(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
SECTION 4.02. APPOINTMENT, REMOVAL AND RESIGNATION OF GUARANTEE TRUSTEE.
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(a) Subject to Section 4.02(b), the Guarantee Trustee may be appointed
or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its
removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument
in writing executed by the Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor
Guarantee Trustee has been appointed and has accepted such
appointment by an instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.02 within 30 days
after delivery to the Guarantor of an instrument of resignation, the
resigning Guarantee Trustee may petition, at the expense of the
Guarantor, any court of competent jurisdiction for appointment of a
Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.01. GUARANTEE. The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders the Guarantee Payments (without duplication
of amounts theretofore paid by or on behalf of the Issuer), as and when due,
regardless of any defense (other than the defense of payment), right of set-off
or counterclaim which the Issuer may have or assert. The Guarantor's
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obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders.
SECTION 5.02. WAIVER OF NOTICE AND DEMAND. The Guarantor hereby waives
notice of acceptance of the Guarantee Agreement and of any liability to which it
applies or may apply, presentment, demand for payment, any right to require a
proceeding first against the Guarantee Trustee, the Issuer or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and demands.
SECTION 5.03. OBLIGATIONS NOT AFFECTED. The obligations, covenants,
agreements and duties of the Guarantor under this Guarantee Agreement shall in
no way be affected or impaired by reason of the happening from time to time of
any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Capital
Securities or Common Securities to be performed or observed by the
Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for
payment of Distributions that results from the extension of any
interest payment period on the Debentures as so provided in the
Indenture), Redemption Price, Liquidation Distribution or any other
sums payable under the terms of the Capital Securities or Common
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Capital
Securities or Common Securities;
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power
or remedy conferred on the Holders pursuant to the terms of the
Capital Securities or any action on the part of the Issuer granting
indulgence or extension of any kind;
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(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Capital
Securities or the Common Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor (other than
payment of the underlying obligation), it being the intent of this
Section 5.03 that the obligations of the Guarantor hereunder shall
be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.04. RIGHTS OF HOLDERS. The Guarantor expressly acknowledges that
: (a) this Guarantee Agreement will be deposited with the Guarantee Trustee to
be held for the benefit of the Holders; (b) the Guarantee Trustee has the right
to enforce this Guarantee Agreement on behalf of the Holders; (c) the Holders of
a Majority in Liquidation Amount of the Capital Securities have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee in respect of this Guarantee Agreement or
exercising any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and (d) any Holder of Capital Securities may, to the extent
permissible under applicable law, institute a legal proceeding directly against
the Guarantor to enforce its rights under this Guarantee Agreement, without
first instituting a legal proceeding against the Guarantee Trustee, the Issuer
or any other Person.
SECTION 5.05. GUARANTEE OF PAYMENT. This Guarantee Agreement creates a
guarantee of payment and not a guarantee of collection. This Guarantee Agreement
will not be discharged except by payment
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of the Guaranty Payments in full (without duplication of amounts theretofore
paid by Issue or upon distribution of Debentures to Holders as provided in the
Trust Agreement).
SECTION 5.06. SUBROGATION. The Guarantor shall be subrogated to all (if
any) rights of the Holders against the Issuer in respect of any amounts paid to
the Holders by the Guarantor under this Guarantee Agreement and shall have the
right to waive payment by the Issuer pursuant to Section 5.01; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights which
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee Agreement,
if, at the time of any such payment, any amounts are due and unpaid under this
Guarantee Agreement. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 5.07. INDEPENDENT OBLIGATIONS. The Guarantor acknowledges that its
obligations hereunder are independent of the obligations of the Issuer with
respect to the Capital Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.03 hereof.
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.01. COVENANTS. So long as any Capital Securities remain
outstanding, in the event (a) the Guarantor shall be in default with respect to
its Guarantee Payments hereunder, (b) there shall have occurred and be
continuing any Event of Default under the Indenture or (c) the Guarantor shall
have given notice of its selection of an Extension Period (as defined in the
Indenture) and such period, or any extension thereof, is continuing, the
Guarantor shall not, and shall cause its Subsidiaries (as defined in the
Indenture) 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 Guarantor's
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outstanding capital stock, (ii) make any payment of principal, interest or
premium, if any, 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 the foregoing, (iii) sell, lease, license, transfer or otherwise
dispose of any asset or interest therein or (iv) with respect to the Guarantor,
make any capital contributions or similar advances to any Subsidiaries;
provided, however, that nothing shall prevent (A) any such transaction in the
ordinary course of business or in immaterial amounts (other than transactions
described in clause (iv) above), (B) reorganizations of Subsidiaries, so long as
the Guarantor's percentage ownership interest in such Subsidiaries does not
decrease, (C) dividends or distributions in common stock of the Guarantor, (D)
payments hereunder, or under any similar guarantee by the Guarantor 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
Guarantor that rank pari passu with or junior to the Debentures and (E)
purchases of common stock of the Guarantor related to the rights under any of
the Guarantor's benefit plans for its directors, officers or employees.
SECTION 6.02. SUBORDINATION. The obligations of the Guarantor under this
Guarantee Agreement will constitute unsecured obligations of the Guarantor and
will rank subordinate and junior in right of payment to all Senior Debt of the
Guarantor to the extent and in the manner set forth in the Indenture with
respect to the Debentures, and the provisions of Article Eleven of the Indenture
will apply, mutatis mutandis, to the obligations of the Guarantor hereunder. The
obligations of the Guarantor hereunder do not constitute Senior Debt (as defined
in the Indenture) of the Guarantor.
SECTION 6.03. PARI PASSU GUARANTEES. The obligations of the Guarantor
under this Guarantee Agreement shall rank pari passu with the obligations of the
Guarantor under (a) any similar guarantee agreements issued by the Guarantor on
behalf of the holders of preferred or capital securities issued by a business
trust or similar entity whose common
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securities are owned, directly or indirectly, by the Guarantor, (b) the
Indenture and the Debentures issued thereunder; (c) the Expense Agreement (as
defined in the Trust Agreement) and any similar expense agreements entered into
by the Guarantor in connection with the offering of capital securities issued by
a business trust or similar entity whose common securities are owned, directly
or indirectly, by the Guarantor, and (d) any other security, guarantee or other
agreement or obligation that is expressly stated to rank pari passu with the
obligations of the Guarantor under this Guarantee Agreement or with any
obligation that ranks pari passu with the obligations of the Guarantor under
this Guarantee Agreement.
ARTICLE VII
TERMINATION
SECTION 7.01. TERMINATION. This Guarantee Agreement shall terminate and be
of no further force and effect upon (a) full payment of the Redemption Price of
all Capital Securities, (b) subject to Federal Reserve approval, if then
required under the applicable capital guidelines or policies of the Federal
Reserve, the distribution of Debentures to Holders of Capital Securities in
exchange for all of the Capital Securities or (c) full payment of the amounts
payable in accordance with the Trust Agreement upon liquidation of the Issuer.
Notwithstanding the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
must restore payment of any sums paid with respect to Capital Securities or this
Guarantee Agreement. Guarantor will indemnify each Holder and hold it harmless
from and against any loss it may suffer in such circumstance. Guarantor
unconditionally waives any right to revoke this Guarantee Agreement under
Section 2815 of the California Civil Code or otherwise.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. SUCCESSORS AND ASSIGNS. All guarantees and agreements
contained in this Guarantee Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders of the Capital Securities then outstanding. Except in
connection with a consolidation, merger or sale involving the Guarantor or a
conveyance, transfer or lease of the Guarantor's properties that, in either
case, is permitted under Article Eight of the Indenture and pursuant to which
the successor or assignee agrees in writing to perform the Guarantor's
obligations hereunder, the Guarantor shall not assign its obligations hereunder,
and any purported assignment other than in accordance with this provision shall
be void.
SECTION 8.02. AMENDMENTS. Except with respect to any changes that do not
adversely affect the rights of Holders in any material respect (in which case no
consent of Holders will be required), this Guarantee Agreement may be amended
only with the prior approval of the Holders of not less than a Majority in
liquidation amount of the outstanding Capital Securities. The provisions of
Article VI of the Trust Agreement concerning meetings of Holders shall apply to
the giving of such approval.
SECTION 8.03. NOTICES. Any notice, request or other communication required
or permitted to be given hereunder shall be in writing, duly signed by the party
giving such notice, and delivered, telecopied or mailed by first class mail as
follows:
(a) if given to the Guarantor, to the address or telecopy number set
forth below or such other address as the Guarantor may give notice
of to the Guarantee Trustee:
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VIB Corp
1498 Main Street
El Centro, California 92243
Facsimile No: (760) 337-3229
Attention: Harry G. Gooding, III
(b) if given to the Issuer, at the address or telecopy number set forth
below or such other address as the Issuer may give notice of to the
Guarantee Trustee:
Valley Capital
1498 Main Street
El Centro, California 92243
Facsimile No: (760) 337-3229
Attention: Administrative Trustee
with copy to:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Facsimile No: (302) 651-8882
Attention: Corporate Trust Administration
(c) if given to the Guarantee Trustee, at the Guarantee Trustee's
address or telecopy number set forth below:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Facsimile No: (302) 651-8882
Attention: Corporate Trust Administration
(d) if given to any Holder of Capital Securities, at the address set
forth on the books and records of the Issuer.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other
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document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 8.04. BENEFIT. This Guarantee Agreement is solely for the benefit
of the Holders, and is not separately transferable from the Capital Securities,
subject to Section 3.01(a).
SECTION 8.05. INTERPRETATION. In this Guarantee Agreement, unless the
context otherwise requires:
(a) Capitalized terms used in this Guarantee Agreement but not defined
in the preamble hereto have the respective meanings assigned to them
in Section 1.01 unless otherwise indicated;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented
or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include
the masculine, feminine and neuter genders.
SECTION 8.06. GOVERNING LAW. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.
SECTION 8.07. COUNTERPARTS. This instrument may be executed in any number
of counterparts, each of which when so executed shall
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be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
This GUARANTEE AGREEMENT is executed as of the day and year first above
written.
VIB CORP WILMINGTON TRUST COMPANY,
as Guarantee Trustee
By: /s/ DENNIS L. KERN By: /s/ JAMES P. LAWLER
--------------------------- ----------------------------
Name: Dennis L. Kern Name: James P. Lawler
Title: President and Chief Title: Vice President
Executive Officer
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EXHIBIT 4.8
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") dated as of
February 5, 1999, between VIB CORP, a California corporation ("VIBC"), and
VALLEY CAPITAL TRUST, a Delaware business trust (the "Trust").
RECITALS
WHEREAS, the Trust intends to issue its common securities (the "Common
Securities") to, and receive Junior Subordinated Deferrable Interest Debentures
(the "Debentures") from, VIBC and to issue and sell Valley Capital Trust 9.00%
Cumulative Trust Preferred Securities (the "Capital Securities") with such
powers, preferences and special rights and restrictions as are set forth in the
Amended and Restated Trust Agreement of the Trust dated as of February 5, 1999,
as the same may be amended from time to time (the "Trust Agreement"); and
WHEREAS, VIBC shall directly or indirectly own all of the Common
Securities of the Trust and shall issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Capital Securities, which purchase VIBC hereby agrees shall benefit VIBC and
which purchase VIBC acknowledges shall be made in reliance upon the execution
and delivery of this Agreement, VIBC, including in its capacity as holder of the
Common Securities, and the Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. GUARANTEE BY VIBC.
Subject to the terms and conditions hereof, VIBC, including in its
capacity as holder of the Common Securities, hereby irrevocably and
unconditionally guarantees to each person or entity to whom the Trust is now or
hereafter becomes indebted or liable (the "Beneficiaries") the full payment when
and as due, of any and all Obligations (as hereinafter defined) to such
Beneficiaries. As used herein, "Obligations" means any costs, expenses or
liabilities of the Trust other than obligations of
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the Trust to pay to holders of any Capital Securities or other similar interests
in the Trust the amounts due such holders pursuant to the terms of the Capital
Securities or such other similar interests, as the case may be. This Agreement
is intended to be for the benefit of, and to be enforceable by, all such
Beneficiaries, whether or not such Beneficiaries have received notice hereof.
SECTION 1.2. TERM OF AGREEMENT.
This Agreement shall terminate and be of no further force and effect upon
the later of (a) the date on which full payment has been made of all amounts
payable to all holders of all the Capital Securities (whether upon redemption,
liquidation, exchange or otherwise); and (b) the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall continue
to be effective or shall be reinstated, as the case may be, if at any time any
holder of Capital Securities or any Beneficiary must restore payment of any sums
paid under the Capital Securities, under any obligation, under the Guarantee
Agreement dated the date hereof by VIBC and Wilmington Trust Company, a Delaware
banking corporation, as guarantee trustee, or under this Agreement for any
reason whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute; and VIBC unconditionally waives any right to revoke the guarantee
under Section 2815 of the California Civil Code or otherwise.
SECTION 1.3. WAIVER OF NOTICE.
VIBC hereby waives notice of acceptance of this Agreement and of any
obligation to which it applies or may apply, and VIBC hereby waives presentment,
demand for payment, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 1.4. NO IMPAIRMENT.
The obligations, covenants, agreements and duties of VIBC under this
Agreement shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or
any portion of the obligations or for the performance of any other
obligation under, arising out of, or in connection with, the obligations;
(b) any failure, omission, delay or lack of diligence
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on the part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with respect to
the obligations or any action on the part of the Trust granting indulgence
or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Trust
or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, VIBC with respect to the happening of any of the
foregoing.
SECTION 1.5. ENFORCEMENT.
A Beneficiary may enforce this Agreement directly against VIBC, and VIBC
waives any right or remedy to require that any action be brought against the
Trust or any other person or entity before proceeding against VIBC.
SECTION 1.6. SUBROGATION.
VIBC shall be subrogated to all (if any) rights of the Trust in respect of
any amounts paid to the Beneficiaries by VIBC under this Agreement; provided,
however, that VIBC shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any rights which it may
acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Agreement, if, at the
time of any such payment, any amounts are due and unpaid under this Agreement.
ARTICLE II
SECTION 2.1. BINDING EFFECT.
All guarantees and agreements contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of VIBC and shall
inure to the benefit of the Beneficiaries.
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SECTION 2.2. AMENDMENT.
So long as there remains any Beneficiary or any Capital Securities of any
series are outstanding, this Agreement shall not be modified or amended in any
manner adverse to such Beneficiary or to the holders of the Capital Securities.
SECTION 2.3. NOTICES.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same by facsimile
transmission (confirmed by mail), telex, or by registered or certified mail,
addressed as follows (and if so given, shall be deemed given when mailed or upon
receipt of an answerback, if sent by telex):
Valley Capital Trust
c/o VIB CORP
1498 Main Street
El Centro, California 92243
Facsimile No.: (760) 337-3229
Attention: Chief Financial Officer
VIB CORP
1498 Main Street
El Centro, California 92243
Facsimile No.: (760) 337-3229
Attention: Chief Financial Officer
SECTION 2.4. This agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of California (without
regard to conflict of laws principles).
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THIS AGREEMENT is executed as of the day and year first above written.
VIB CORP
By: /S/ DENNIS L. KERN
-----------------------------------
Its: President
-----------------------------------
VALLEY CAPITAL TRUST
By: /s/ Harry G. GOODING, III
-----------------------------------
Its: Administrative Trustee
-----------------------------------
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