<PAGE>
As filed with the Securities and Exchange Commission on February 4, 2000
Registration No. 333-________
333-__________-01
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form S-3
Registration Statement under the Securities Act of 1933
<TABLE>
<S> <C>
EAST WEST BANCORP, INC. EAST WEST BANCORP CAPITAL
(Exact name of Registrant as specified in its TRUST I
charter) (Exact name of Registrant as specified
in its trust agreement)
DELAWARE
(State or other jurisdiction of DELAWARE
incorporation or organization) (State or other jurisdiction of
_________ incorporation or organization)
_________
95-4703316
(I.R.S. Employer being applied for
Identification No.) (I.R.S. Employer
Identification No.)
</TABLE>
------------------------
415 Huntington Drive
San Marino, California 91108
(626) 799-5700
(Address, including zip code, and telephone number,
including area code, of Registrants' principal executive offices)
------------------------
Douglas Krause
Executive Vice President
East West Bancorp, Inc.
415 Huntington Drive
San Marino, California 91108
(626) 799-5700
(Name, address, including zip code, and telephone number,
including area code, of agents for service)
------------------------
Copies to:
Norman B. Antin, Esq.
Jeffrey D. Haas, Esq.
Elias, Matz, Tiernan & Herrick L.L.P.
734 15th Street, N.W.
Washington, D.C. 20005
(202) 347-0300
Fax: (202) 347-2172
------------------------
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(c) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. [ ]________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]__________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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===================================================================================================================================
Title of Each Class of Securities Amount Proposed Maximum Proposed Maximum Amount of
to be Registered to be Offering Price (1) Aggregate Registration
Registered Offering Price(1) Fee(2)
<S> <C> <C> <C> <C>
Debt Securities of East West Bancorp, Inc. (2)
Preferred Stock of East West Bancorp, Inc. (3)
Common Stock of East West Bancorp, Inc. (4)
Trust Preferred Securities of East West Bancorp
Capital Trust I (5)
Guarantees of Trust Preferred Securities by East West
Bancorp, Inc. (6)
Total $50,000,000 100% $50,000,000(7) $13,200
==================================================================================================================================
</TABLE>
(1) The proposed maximum aggregate offering price has been estimated solely to
calculate the registration fee under Rule 457(o).
(2) Subject to note (7) below, we are registering an indeterminate principal
amount of Debt Securities, which may include Junior Subordinated Debentures
we may issue and sell to East West Bancorp Capital Trust I. Such Junior
Subordinated Debentures may later be distributed to the holders of Trust
Preferred Securities. If any Debt Securities are issued at an original issue
discount, then the offering price will be in such greater principal amount
as will result in an aggregate initial offering price not to exceed
$50,000,000 less the dollar amount of any securities previously issued.
(3) Subject to note (7) below, we are registering an indeterminate number of
shares of Preferred Stock.
(4) Subject to note (7) below, we are registering an indeterminate number of
shares of Common Stock.
(5) Subject to note (7) below, we are registering an indeterminate number of
shares of Trust Preferred Securities of East West Bancorp Capital Trust I.
(6) We are also registering all other obligations that we may have with respect
to the Trust Preferred Securities issued by East West Bancorp Capital Trust
I. No separate consideration will be received for any Guarantees or any
other such obligations.
(7) In no event, will the aggregate initial offering price of all securities
exceed $50,000,000. The aggregate amount of Common Stock registered is
further limited to that which is permissible under Rule 415(a)(4) under the
Securities Act. The registered securities may be sold separately or as units
with other registered securities.
---------------------
The Registrants hereby amend this registration statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
<PAGE>
Explanatory Note
This Registration Statement includes a prospectus to be used in connection
with offerings of (a) debt securities issued by East West Bancorp, Inc.,
including junior subordinated debentures which may be issued to East West
Bancorp Capital Trust I, (b) preferred stock issued by East West Bancorp, Inc.,
(c) common stock issued by East West Bancorp, Inc., (d) trust preferred
securities issued by East West Bancorp Capital Trust I, and (e) guarantees by
East West Bancorp, Inc. of the trust preferred securities issued by East West
Bancorp Capital Trust I. Each offering of securities made under this
Registration Statement will be made pursuant to this prospectus, with the
specifications of the securities offered thereby set forth in an accompanying
prospectus supplement. The prospectus may not be used to consummate sales of
securities unless accompanied by a prospectus supplement.
<PAGE>
We will amend and complete the information in this prospectus. We may not sell
any of these securities or accept your offer to buy any of them until the
documentation filed with the SEC relating to these securities has been declared
"effective" by the SEC. This prospectus is not an offer to sell these securities
or our solicitation of your offer to buy these securities in any State or other
jurisdiction where that would not be permitted or legal.
Subject to completion, dated February 4, 2000
$50,000,000
EAST WEST BANCORP, INC.
Debt Securities
Preferred Stock
Common Stock
EAST WEST BANCORP CAPITAL TRUST I
Trust Preferred Securities, Fully and Unconditionally Guaranteed as
described herein by East West Bancorp, Inc.
___________________________
We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any supplement carefully before
you invest.
We may offer any of the following securities from time to time:
. debt securities, including junior subordinated debentures which we may
issue and sell to East West Bancorp Capital Trust I in connection with
its issuance of trust preferred securities;
. preferred stock; and
. common stock.
East West Bancorp Capital Trust I may issue its trust preferred securities from
time to time. The trust preferred securities will be fully and unconditionally
guaranteed by us as described in this prospectus.
We will not use this prospectus to confirm sales of any securities unless it is
attached to a prospectus supplement.
___________________________
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is _____ __, 2000.
<PAGE>
TABLE OF CONTENTS
<TABLE>
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Page
----
<S> <C>
About this Prospectus.................................................... 1
Where You Can Find More Information...................................... 1
East West Bancorp, Inc................................................... 2
East West Bancorp Capital Trust I........................................ 3
Use of Proceeds.......................................................... 4
Description of Debt Securities........................................... 4
Description of Preferred Stock........................................... 10
Description of Common Stock.............................................. 12
Description of Trust Preferred Securities................................ 12
Description of Junior Subordinated Debentures............................ 23
Description of Guarantees................................................ 29
Relationship Among the Trust Preferred Securities, the Junior
Subordinated Debentures and the Guarantees............................. 31
Book-Entry Issuance...................................................... 33
Plan of Distribution..................................................... 35
Legal Matters............................................................ 36
Experts.................................................................. 36
</TABLE>
___________________________________
-ii-
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission utilizing a "shelf" registration process.
Under this shelf registration process, we may sell any combination of the
securities described in this prospectus in one or more offerings up to a total
dollar amount of $50,000,000. This prospectus provides you with a general
description of the securities we may offer. Each time we sell securities, we
will provide a prospectus supplement that will contain specific information
about the terms of that offering. The prospectus supplement may also add, update
or change information contained in this prospectus. You should read both this
prospectus and any prospectus supplement together with the additional
information described under the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and
-------------------
copy any documents we file with the SEC at its public reference facilities at
450 Fifth Street, NW, Washington, DC 20549, 7 World Trade Center, Suite 1300,
New York, New York 10048 and Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511. You can also obtain copies of the documents
at prescribed rates by writing to the Public Reference Section of the SEC at 450
Fifth Street, NW, Washington, DC 20549. Please call the SEC at 1-800-SEC-0330
for further information on the operation of the public reference facilities.
Our SEC filings are also available at the office of the Nasdaq National Market.
For further information on obtaining copies of our public filings at the Nasdaq
National Market, you should call (212) 656-5060.
We "incorporate by reference" into this prospectus the information we file with
the SEC, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus and information that we file subsequently
with the SEC will automatically update this prospectus. We incorporate by
reference the documents listed below and any filings we make with the SEC under
Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 after
the initial filing of the registration statement that contains this prospectus
and prior to the time that we sell all the securities offered by this
prospectus:
. Annual Report on Form 10-K for the year ended December 31, 1998.
. Quarterly Reports on Form 10-Q for the three months ended March 31,
1999, June 30, 1999 and September 30, 1999.
You may request a copy of these filings (other than an exhibit to a filing
unless that exhibit is specifically incorporated by reference into that filing)
at no cost, by writing to or telephoning us at the following address: 415
Huntington Drive, San Marino, California 91108, Attention: Corporate Secretary,
telephone (626) 799-5700.
You should rely only on the information incorporated by reference or provided in
this prospectus or any prospectus supplement. We have not authorized anyone else
to provide you with different information. We are not making an offer of these
securities in any state where the offer is not permitted. You should not assume
that the information in this prospectus or any prospectus supplement is accurate
as of any date other than the date on the front of these documents.
1
<PAGE>
EAST WEST BANCORP, INC.
East West Bancorp, Inc. (the "Company") is a Delaware corporation which was
incorporated in August 1998 to be the holding company for East-West Bank (the
"Bank"). The Company became the holding company for the Bank as of December 30,
1998, and is subject to the Bank Holding Company Act of 1956, as amended.
The Company has no material operations or subsidiaries other than its wholly-
owned subsidiary, the Bank. The Bank is a California-chartered commercial bank.
The Bank's deposits are insured by the Federal Deposit Insurance Corporation
("FDIC") up to applicable limits. The Bank is not a member of the Federal
Reserve System. The Bank is the fourth largest commercial bank headquartered in
Los Angeles, California as of December 31, 1999 and one of the largest banks in
the United States that focuses on the Chinese-American community.
The Bank was originally chartered in June 1972 as the first federally chartered
savings institution focused primarily on the Chinese-American community, and
opened for business at its first office in the Chinatown district of Los Angeles
in January 1973. Currently, the Bank specializes in lending for commercial,
construction, and residential real estate projects, financing international
trade for California companies, and providing business and personal deposit and
cash management services. The Bank has emphasized commercial lending since its
conversion to a state-chartered commercial bank on July 31, 1995.
Through its network of 30 retail branches, the Bank provides a wide range of
personal and commercial banking services to small and medium-sized businesses,
business executives, professionals and other individuals. The Bank offers
multilingual services to all of its customers in English, Cantonese, Mandarin
and Spanish. The Bank offers a variety of deposit products which includes the
traditional range of personal and business checking and savings accounts, time
deposits and individual retirement accounts, travelers' checks, safe deposit
boxes, and MasterCard and Visa merchant deposit services.
The Bank's lending activities include residential and commercial real estate,
construction, commercial, trade finance, account receivables, inventory and
working capital loans. The Bank provides commercial loans to small and medium-
sized businesses with annual revenues that generally range from several million
to $200 million. In addition, the Bank provides short-term trade finance
facilities for terms of less than one year primarily to U.S. importers and
manufacturers doing business in the Asia Pacific region. The Bank's commercial
borrowers are engaged in a wide variety of manufacturing, wholesale trade and
service businesses.
The Bank concentrates on marketing its services in the Los Angeles metropolitan
area, Orange County, the San Francisco Bay area, and the Silicon Valley area in
Santa Clara County, with a particular focus on regions with a high concentration
of ethnic Chinese. The ethnic Chinese markets within the Bank's primary market
area have experienced rapid growth in recent periods. As California continues
to gain momentum as the hub of the Pacific Rim, the Bank provides important
competitive advantages to its customers participating in the Asia pacific
marketplace. Management believes the Bank's customers benefit from its
understanding of Asian markets and cultures, its corporate and organizational
ties throughout Asia, as well as its international banking products and
services. Management believes that this approach, combined with the extensive
ties of its management and Board of Directors to the growing Asian and ethnic
Chinese communities, provides the Bank with an advantage in competing for
customers in its market area.
Our principal executive office is located at 415 Huntington Drive, San Marino,
California 91108 and our telephone number is (626) 799-5700.
2
<PAGE>
EAST WEST BANCORP CAPITAL TRUST I
East West Bancorp Capital Trust I, which is referred to in this prospectus as
the "Trust," is a statutory business trust formed by us under the Delaware
Business Trust Act. When we are ready to issue and sell trust preferred
securities through the Trust, we will amend the declaration of trust we signed
in forming the Trust to read substantially like the form of amended and restated
declaration of trust (which is referred to in this prospectus as the "trust
agreement") that has been filed with the SEC as an exhibit to the registration
statement of which this prospectus is a part. The trust agreement will be
qualified as an indenture under the Trust Indenture Act of 1939.
We have created the Trust solely to:
. issue and sell its trust securities (including the preferred securities
and the common securities), which represent proportionate beneficial
ownership interests in the Trust and its assets;
. use the proceeds from the sale of the trust securities to buy from us
a series of our junior subordinated debentures, which will be the only
assets of the Trust;
. maintain its status as a grantor trust for federal income tax
purposes; and
. engage in only those other activities necessary or convenient to
accomplish its purposes.
Because the Trust's only assets will be junior subordinated debentures that we
issue to it, our payments on those junior subordinated debentures will be the
only source of funds to be paid to purchasers or owners of the trust preferred
securities.
We will acquire and own all of the common securities of the Trust. The common
securities will have an aggregate liquidation amount of at least 3% of the total
capital of the Trust. The remainder, representing up to 97% of the ownership
interests in the Trust, will be trust preferred securities of the Trust which
may be sold to the public. The common securities and the trust preferred
securities (collectively referred to as the "trust securities") will have
substantially the same terms, including the same priority of payment, and will
receive proportionate payments from the Trust in respect of distributions and
payments upon liquidation, redemption or otherwise at the same times, with one
exception: if we default on the junior subordinated debentures that we issue to
the Trust and do not cure the default within the times specified in the
indenture governing our issuance of our junior subordinated debentures, our
rights to payments as holder of the common securities will be subordinated to
the rights of the holders of the trust preferred securities.
The Trust has a term of approximately 31 years, but may be dissolved earlier as
provided in the trust agreement. We have appointed the following trustees to
conduct the Trust's business and affairs:
. _______________, as property trustee;
. _______________ (Delaware), as Delaware trustee; and
. Three individuals who are our employees and officers, as
administrative trustees.
We refer to all of these trustees collectively as the "issuer trustees."
_______________, as property trustee, will act as sole indenture trustee under
the trust agreement for purposes of compliance with the Trust Indenture Act.
Unless we say otherwise in the applicable prospectus supplement, _______________
will also act as trustee under our guarantee agreement relating to the trust
preferred securities.
We will pay all fees and expenses related to the Trust and the offering of the
trust preferred securities, as well as all of the ongoing costs and expenses of
the Trust. We will not be responsible for the Trust's obligations under the
trust preferred securities. We will fully and unconditionally guarantee the
trust preferred securities to the extent described later in this prospectus.
3
<PAGE>
The Trust has no separate financial statements. We have, though the trust
agreement, the guarantee agreements, the junior subordinated debentures and the
indenture, taken together fully irrevocably and unconditionally guaranteed all
of the Trust's obligation's under the trust securities. Separate financial
statements are not required pursuant to Staff Accounting Bulletin 53 of the
Commission and would not be significant to you because the Trust has no
independent operations. The Trust exists solely for the reasons summarized
above.
The Trust's principal office is located at c/o East West Bancorp, Inc., 415
Huntington Drive, San Marino, California 91108 and its telephone number is (626)
799-5700.
USE OF PROCEEDS
We will use the proceeds from the sale of the securities described in this
prospectus for general corporate purposes, which may include:
. acquisitions by either us or East West Bank;
. capital contributions to East West Bank to support growth and for
working capital; and
. repurchases in the open market of our common stock or debt obligations,
if any.
All of the proceeds from the sale of the trust preferred securities together
with proceeds of the common securities will be invested by the Trust in the
junior subordinated debentures to be issued by us.
DESCRIPTION OF DEBT SECURITIES
The debt securities will be our direct unsecured general obligations. The debt
securities will be either senior debt securities, subordinated debt securities
or junior subordinated debt securities. The debt securities will be issued in
one or more series under an indenture between us and _______________, as
trustee, and under a securities resolution (which may be in the form of a
resolution or a supplemental indenture) authorizing the particular series.
We have summarized selected provisions of the indenture below. The summary is
not complete. The form of the indenture is filed as an exhibit to the
registration statement of which this prospectus is a part. The securities
resolution for each series will be filed as an exhibit to a document to be
incorporated by reference for the specific offering of securities to which it
relates. You should read the indenture and the applicable securities resolution
for provisions that may be important to you. In the summary below, we have
included references to section numbers in the indenture so that you can easily
find those provisions. The particular terms of any debt securities we offer will
be described in the related prospectus supplement, along with any applicable
modifications of or additions to the general terms of the debt securities
described below and in the indenture. For a description of the terms of any
series of debt securities, you should also review both the prospectus supplement
relating to that series and the description of the debt securities set forth in
this prospectus before making an investment decision.
General
The indenture does not significantly limit our operations. In particular, it
does not:
. limit the amount of debt securities that we can issue under the
indenture;
. limit the number of series of debt securities that we can issue from
time to time;
. restrict the total amount of debt that we or our subsidiaries may
incur; or
. contain any covenant or other provision that is specifically intended to
afford any holder of the debt securities special protection in the event
of highly leveraged transactions or any other transactions resulting in
a decline in our ratings or credit quality.
4
<PAGE>
As of the date of this prospectus, there are no debt securities outstanding
under the indenture. The ranking of a series of debt securities with respect to
all of our indebtedness will be established by the securities resolution
creating the series.
The debt securities covered by this prospectus will only be denominated in U.S.
dollars in registered form without coupons, unless otherwise indicated in the
applicable prospectus supplement.
Terms
A prospectus supplement and a securities resolution relating to the offering of
any series of debt securities will include specific terms relating to the
offering. The terms will include some or all of the following:
. the designation, aggregate principal amount and denominations of the
debt securities;
. the price at which the debt securities will be issued and, if an index,
formula or other method is used, the method for determining amounts of
principal or interest;
. the maturity date and other dates, if any, on which the principal of
the debt securities will be payable;
. the interest rate or rates, if any, or method of calculating the
interest rate or rates which the debt securities will bear;
. the date or dates from which interest will accrue and on which interest
will be payable, and the record dates for the payment of interest;
. the manner of paying principal and interest on the debt securities;
. the place or places where principal and interest will be payable;
. the terms of any mandatory or optional redemption of the debt
securities by us, including any sinking fund;
. the terms of any conversion or exchange right;
. the terms of any redemption of debt securities at the option of
holders;
. any tax indemnity provisions;
. the portion of principal payable upon acceleration of any discounted
debt security (as described below);
. whether and upon what terms debt securities may be defeased (which
means that we would be discharged from our obligations by depositing
sufficient cash or government securities to pay the principal,
interest, any premiums and other sums due to the stated maturity date
or a redemption date of the debt securities of the series);
. whether any events of default or covenants in addition to or instead
of those set forth in the indenture apply;
. provisions for electronic issuance of debt securities or for debt
securities in uncertificated form;
. the ranking of the debt securities, including the relative degree, if
any, to which the debt securities of such series are subordinated to
one or more other series of debt securities in right of payment,
whether outstanding or not;
. any provisions relating to extending or shortening the date on which
the principal and premium, if any, of the debt securities of the series
is payable;
. any provisions relating to the deferral of payment of any interest;
. if the series of debt securities is to be issued to the Trust, the
forms of the related trust agreement and guarantee agreement;
. the additions or changes, if any, to the indenture with respect to
that series of debt securities to permit or facilitate the issuance of
that series of debt securities to the Trust; and
. any other terms not inconsistent with the provisions of the indenture,
including any covenants or other terms that may be required or
advisable under United States or other applicable laws or regulations,
or advisable in connection with the marketing of the debt securities.
(Section 2.01)
5
<PAGE>
We may issue debt securities of any series as registered debt securities, bearer
debt securities or uncertificated debt securities, and in such denominations as
we specify in the securities resolution and prospectus supplement for the
series. (Section 2.01)
In connection with its original issuance, no bearer debt security will be
offered, sold or delivered to any location in the United States. We may deliver
a bearer debt security in definitive form in connection with its original
issuance only if a certificate in a form we specify to comply with United States
laws and regulations is presented to us. (Section 2.04)
A holder of registered debt securities may request registration of a transfer
upon surrender of the debt security being transferred at any agency we maintain
for that purpose and upon fulfillment of all other requirements of the agent.
(Sections 2.03 and 2.07)
We may issue debt securities under the indenture as discounted debt securities
to be offered and sold at a substantial discount from the principal amount of
those debt securities. Special United States federal income tax and other
considerations applicable to discounted debt securities will be described in the
related prospectus supplement. A discounted debt security is a debt security
where the amount of principal due upon acceleration is less than the stated
principal amount. (Sections 1.01 and 2.10)
Conversion and Exchange
The terms, if any, on which debt securities of any series will be convertible
into or exchangeable for our common stock or other equity or debt securities,
property, cash or obligations or a combination of any of the foregoing, will be
summarized in the prospectus supplement relating to the series. The terms may
include provisions for conversion or exchange, either on a mandatory basis, at
the option of the holder or at our option. (Section 9.01)
Certain Covenants
Any restrictive covenants which may apply to a particular series of debt
securities will be described in the related prospectus supplement.
Ranking of Debt Securities
Unless stated otherwise in a prospectus supplement, the debt securities issued
under the indenture will rank equally and ratably with our other unsecured and
unsubordinated debt. The debt securities will not be secured by any properties
or assets and will represent our unsecured debt.
We are a holding company and we will depend upon the earnings and cash flow of
our subsidiaries to meet our obligations under the debt securities. Since the
creditors of any of our subsidiaries would generally have a right to receive
payment that is superior to our right to receive payment from the assets of that
subsidiary, holders of our debt securities will be effectively subordinated to
creditors of our subsidiaries. In addition, there are regulatory provisions
which limit the amount of dividends East West Bank can pay to us as well as
regulatory provisions which limit East West Bank's ability to make loans and
advances to us.
Successor Obligor
The indenture provides that, unless otherwise specified in the securities
resolution establishing a series of debt securities, we will not consolidate
with or merge into, or transfer all or substantially all of our assets to,
another company, unless:
6
<PAGE>
. that company is organized under the laws of the United States or a
state thereof or is organized under the laws of a foreign jurisdiction
and consents to the jurisdiction of the courts of the United States or
a state thereof;
. that company assumes by supplemental indenture all of our obligations
under the indenture and the debt securities;
. all required approvals of any regulatory body having jurisdiction over
the transaction shall have been obtained; and
. immediately after the transaction no default exists under the
indenture.
The successor shall be substituted for us as if it had been an original party to
the indenture, securities resolutions and debt securities. Thereafter the
successor may exercise our rights and powers under the indenture, the debt
securities and any coupons, and all of our obligations under those documents
will terminate. (Section 5.01)
Exchange of Debt Securities
Registered debt securities may be exchanged for an equal principal amount of
registered debt securities of the same series and date of maturity in the
denominations requested by the holders upon surrender of the registered debt
securities at an agency we maintain for that purpose and upon fulfillment of all
other requirements of the agent. (Section 2.07)
Defaults and Remedies
Unless the securities resolution establishing the series provides for different
events of default, in which event the prospectus supplement will describe the
change, an event of default with respect to a series of debt securities will
occur if:
. we default in any payment of interest on any debt securities of that
series when the payment becomes due and payable and the default
continues for a period of 30 days;
. we default in the payment of the principal and premium, if any, of any
debt securities of the series when those payments become due and
payable at maturity or upon redemption, acceleration or otherwise;
. we default in the payment or satisfaction of any sinking fund
obligation with respect to any debt securities of the series as
required by the securities resolution establishing the series and the
default continues for a period of 30 days;
. we default in the performance of any of our other agreements
applicable to the series and the default continues for 60 days after
the notice specified below;
. pursuant to or within the meaning of any Bankruptcy Law we:
. commence a voluntary case,
. consent to the entry of an order for relief against us in an
involuntary case,
. consent to the appointment of a custodian for us or for all or
substantially all of our property, or
. make a general assignment for the benefit of our creditors;
. a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that remains unstayed and in effect for 60 days and
that:
. is for relief against us in an involuntary case;
. appoints a custodian for us or for all or substantially all of
our property; or
. orders us to liquidate; or
7
<PAGE>
. there occurs any other event of default provided for in such
series. (Section 6.01)
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or a similar official under any Bankruptcy Law.
(Section 6.01)
A default under the indenture means any event which is, or after notice or
passage of time would be, an event of default under the indenture. A default
under the fourth bullet point above is not an event of default until the Trustee
or the holders of at least 25% in principal amount of the series notify us of
the default and we do not cure the default within the time specified after
receipt of the notice. (Section 6.01)
If an event of default occurs under the indenture and is continuing on a series,
the trustee by notice to us, or (except as provided in the next sentence) the
holders of at least 25% in principal amount of the series by notice both to us
and to the trustee, may declare the principal of and accrued interest on all the
debt securities of the series to be due and payable immediately. Discounted debt
securities may provide that the amount of principal due upon acceleration is
less than the stated principal amount.
The holders of a majority in principal amount of a series of debt securities, by
notice to the trustee, may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
events of default on the series have been cured or waived except nonpayment of
principal or interest that has become due solely because of the
acceleration.(Section 6.02)
If an event of default occurs and is continuing on a series, the trustee may
pursue any available remedy to collect principal or interest then due on the
series, to enforce the performance of any provision applicable to the series, or
otherwise to protect the rights of the trustee and holders of the series.
(Section 6.03)
The trustee may require indemnity satisfactory to it before it performs any duty
or exercises any right or power under the indenture or the debt securities which
it reasonably believes may expose it to any loss, liability or expense. (Section
7.01) With some limitations, holders of a majority in principal amount of the
debt securities of the series may direct the trustee in its exercise of any
trust or power with respect to that series. (Section 6.05) Except in the case of
default in payment on a series, the trustee may withhold notice of any
continuing default if it determines that withholding the notice is in the
interest of holders of the series. (Section 7.04) We are required to furnish the
trustee annually a brief certificate as to our compliance with all conditions
and covenants under the indenture. (Section 4.04)
The indenture does not have a cross-default provision. Thus, a default by us on
any other debt, including any other series of debt securities, would not
constitute an event of default under the indenture. A securities resolution may
provide for a cross-default provision; in that case, the prospectus supplement
will describe the terms of that provision.
Amendments and Waivers
The indenture and the debt securities may be amended, and any default may be
waived. Unless the securities resolution provides otherwise, in which event the
prospectus supplement will describe the revised provision, we and the trustee
may amend the debt securities and the indenture with the written consent of the
holders of a majority in principal amount of the debt securities of all series
affected voting as one class. (Section 10.02)
Without the consent of each debt security holder affected, no amendment or
waiver may :
. reduce the principal amount of debt securities whose holders must
consent to an amendment or waiver;
. reduce the interest on or change the time for payment of interest on
any debt security;
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. change the fixed maturity of any debt security (subject to any right
we may have retained in the securities resolution and described in the
prospectus supplement);
. reduce the principal of any non-discounted debt security or reduce the
amount of the principal of any discounted debt security that would be
due on acceleration thereof;
. make any change that materially adversely affects the right to convert
or exchange any debt security; or
. waive any default in payment of interest on or principal of a debt
security. (Section 10.02)
Without the consent of any debt security holder, we may amend the indenture or
the debt securities:
. to cure any ambiguity, omission, defect, or inconsistency;
. to provide for the assumption of our obligations to debt security
holders by the surviving company in the event of a merger or
consolidation requiring such assumption;
. to provide that specific provisions of the indenture shall not apply
to a series of debt securities not previously issued;
. to create a series of debt securities and establish its terms;
. to provide for a separate trustee for one or more series of debt
securities; or
. to make any change that does not materially adversely affect the
rights of any debt security holder. (Section 10.01)
Legal Defeasance and Covenant Defeasance
Debt securities of a series may be defeased at any time in accordance with their
terms and as set forth in the indenture and described briefly below, unless the
securities resolution establishing the terms of the series otherwise provides.
Any defeasance may terminate all of our obligations (with limited exceptions)
with respect to a series of debt securities and the indenture ("legal
defeasance"), or it may terminate only our obligations under any restrictive
covenants which may be applicable to a particular series ("covenant
defeasance").
We may exercise our legal defeasance option even though we have also exercised
our covenant defeasance option. If we exercise our legal defeasance option, that
series of debt securities may not be accelerated because of an event of default.
If we exercise our covenant defeasance option, that series of debt securities
may not be accelerated by reference to any restrictive covenants which may be
applicable to that particular series. (Section 8.01)
To exercise either defeasance option as to a series of debt securities, we must:
. irrevocably deposit in trust (the "defeasance trust") with the trustee
or another trustee money or U.S. government obligations;
. deliver a certificate from a nationally recognized firm of independent
accountants expressing their opinion that the payments of principal
and interest when due on the deposited U.S. government obligations,
without reinvestment, plus any deposited money without investment,
will provide cash at the times and in the amounts necessary to pay the
principal and interest when due on all debt securities of the series
to maturity or redemption, as the case may be; and
. comply with certain other conditions. In particular, we must obtain an
opinion of tax counsel that the defeasance will not result in
recognition of any gain or loss to holders for federal income tax
purposes.
U.S. government obligations are direct obligations of (a) the United States or
(b) an agency or instrumentality of the United States, the payment of which is
unconditionally guaranteed by the United States, which, in either case (a) or
(b), have the full faith and credit of the United States of America pledged for
payment and which are not callable at the issuer's option. It also includes
certificates representing an ownership interest in such obligations. (Section
8.02)
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Regarding the Trustee
_______________ will act as trustee and registrar for debt securities issued
under the indenture and, unless otherwise indicated in a prospectus supplement,
the trustee will also act as transfer agent and paying agent with respect to the
debt securities. (Section 2.03) We may remove the trustee with or without cause
if we notify the trustee three months in advance and if no default occurs during
the three-month period. (Section 7.07) The trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for us or our affiliates, and may otherwise deal with us or our affiliates, as
if it were not the trustee.
Governing Law
The laws of the State of New York will govern the indenture and the debt
securities.
DESCRIPTION OF PREFERRED STOCK
General
This section of the prospectus describes the terms and provisions of our
preferred stock. When we offer to sell a particular series of preferred stock,
we will describe the specific terms of the securities in a supplement to this
prospectus. The prospectus supplement will also indicate whether the terms and
provisions described in this prospectus apply to the particular series of
preferred stock. The preferred stock will be issued under a certificate of
designations relating to each series of preferred stock. It is also subject to
our Certificate of Incorporation.
We have summarized the material portions of the certificate of designations
below. The certificate of designations will be filed with the SEC in connection
with an offering of preferred stock.
Our Certificate of Incorporation authorize us to issue 5,000,000 shares of
preferred stock, par value $.001 per share. Our Board of Directors is authorized
to designate any series of preferred stock and the powers, preferences and
rights of the preferred stock without further shareholder action. As of
December 31, 1999, we had no shares of preferred stock outstanding.
Our Board of Directors is authorized to determine or fix the following terms for
each series of preferred stock, which will be described in a prospectus
supplement:
. the designation and number of shares;
. the dividend rate;
. the payment date for dividends;
. whether dividends are cumulative and, if so, the date from which
dividends cumulate;
. redemption rights and the applicable redemption prices;
. amounts payable to holders on our liquidation, dissolution or winding
up;
. the amount of the sinking fund, if any;
. whether the shares will be convertible or exchangeable, and , if so,
the prices and terms; and
. whether future shares of the series or any future series or other
class of stock is subject to any restrictions, and, if so, the nature
of the restrictions.
When we issue shares of preferred stock, they will be fully paid and
nonassessable.
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Dividends
The holders of preferred stock will be entitled to receive cash dividends if
declared by our Board of Directors out of funds we can legally use for payment.
The prospectus supplement will indicate the dividend rates and the dates on
which we will pay dividends. The rates may be fixed or variable or both. If the
dividend rate is variable, the formula used to determine the dividend rate will
be described in the prospectus supplement. We will pay dividends to the holders
of record as they appear on the record dates fixed by our Board of Directors.
Our Board will not declare and pay a dividend on any series of preferred stock
unless full dividends for all series of preferred stock ranking equal as to
dividends have been declared or paid and sufficient funds are set aside for
payment. If dividends are not paid in full, we will declare any dividends pro
rata among the preferred stock of each series and any series of preferred stock
ranking equal to any other series as to dividends. A "pro rata" declaration
means that the dividends we declare per share on each series of preferred stock
will bear the same relationship to each other that the full accrued dividends
per share on each series of the preferred stock bear to each other.
Unless all dividends on the preferred stock have been paid in full, we will not
declare or pay any dividends or set aside sums for payment of dividends or
distributions on any common stock or on any class of security ranking junior to
the series of preferred stock, except for dividends or distributions paid for
with securities ranking junior to the preferred stock. We also will not redeem,
purchase, or otherwise acquire any securities ranking junior to the series of
preferred stock as to dividends or liquidation preferences, except by conversion
into or exchange for stock ranking junior to the series of preferred stock.
Convertibility
We will not convert or exchange any series of preferred stock for other
securities or property, unless otherwise indicated in the prospectus supplement.
Redemption and sinking fund
We will not redeem or pay into a sinking fund any series of preferred stock,
unless otherwise indicated in the prospectus supplement.
Liquidation rights
If we voluntarily or involuntarily liquidate, dissolve or wind up our business,
holders of any series of preferred stock will be entitled to receive the
liquidation preference per share specified in the prospectus supplement and all
accrued and unpaid dividends. We will pay these amounts to the holders of each
series of the preferred stock, and all amounts owing on any preferred stock
ranking equally with that series of preferred stock as to distributions upon
liquidation. These payments will be made out of our assets available for
distribution to shareholders before any distribution is made to holders of
common stock or any class of stock ranking junior to the series of preferred
stock as to dividends and liquidation preferences.
In the event there are insufficient assets to pay the liquidation preferences
for all equally-ranked classes of preferred stock in full, we will allocate the
remaining assets equally among all series of equally-ranked preferred stock
based upon the aggregate liquidation preference for all outstanding shares for
each series. This distribution means that the distribution we pay to the holders
of all shares ranking equal as to distributions if we dissolve, liquidate or
wind up our business will bear the same relationship to each other that the full
distributable amounts for which the holders are respectively entitled if we
dissolve, liquidate or wind up our business bear to each other. After we pay the
full amount of the liquidation preference to which they are entitled, the
holders of shares of a series of preferred stock will not be entitled to
participate in any further distribution of our assets.
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Voting rights
Holders of preferred stock will not be entitled to vote except under certain
limited circumstances, unless otherwise indicated in the prospectus supplement
or otherwise required by law.
Transfer agent and registrar
The prospectus supplement for each series of preferred stock will name the
transfer agent and registrar.
DESCRIPTION OF COMMON STOCK
Our Certificate of Incorporation authorize us to issue 50,000,000 shares of
common stock, par value $.001 per share. As of December 31, 1999, there were
outstanding ___________ shares of common stock.
All outstanding common stock is, and any stock issued under this prospectus will
be, fully paid and nonassessable. Subject to rights of preferred stockholders if
any preferred stock is issued and outstanding, holders of common stock
. are entitled to any dividends validly declared;
. will share ratably in our net assets in the event of a liquidation;
and
. are entitled to one vote per share.
The common stock has no conversion rights. Holders of common stock have no
preemption, subscription, redemption, or call rights related to those shares.
U.S. Stock Transfer Corporation is the transfer agent and registrar for our
common stock.
DESCRIPTION OF TRUST PREFERRED SECURITIES
The following section describes the general terms and provisions of the trust
preferred securities to which any prospectus supplement may relate. The
particular terms of the trust preferred securities offered by the Trust and the
extent to which any of these general provisions do not apply to the trust
preferred securities will be described in the prospectus supplement relating to
the trust preferred securities.
Pursuant to the terms of the trust agreement for the Trust, the administrative
trustees are authorized to issue the trust preferred securities and the common
securities on behalf of the Trust. The trust preferred securities and the common
securities are collectively referred to herein as the "trust securities." The
trust securities will represent undivided beneficial ownership interests in the
assets of the Trust. The holders of the trust preferred securities will be
entitled to a preference over holders of the common securities of the Trust in
certain circumstances with respect to distributions and amounts payable on
redemption or liquidation. Holders of trust preferred securities will also have
certain other benefits as described in the corresponding trust agreement.
We have summarized selected provisions of the trust preferred securities and the
trust agreement below. This summary is not complete. The form of trust agreement
has been filed as an exhibit to the registration statement of which this
prospectus forms a part. You should read the form of trust agreement for
provisions that may be important to you. You should also consider applicable
provisions of the Trust Indenture Act.
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General
The trust preferred securities of the Trust will rank equally, and payments on
the trust preferred securities will be made pro rata, with the common securities
of the Trust except as described under "--Subordination of Common Securities."
Legal title to the corresponding junior subordinated debentures will be held by
the property trustee in trust for the benefit of the holders of the related
trust preferred securities and for us as holder of the common securities. The
guarantee agreement we execute for the benefit of the holders of the Trust's
trust preferred securities will be a guarantee on a junior subordinated basis
with respect to the related trust preferred securities but will not guarantee
payment of distributions or amounts payable on redemption or liquidation of the
trust preferred securities when the Trust does not have funds available to make
such payments. See "Description of Guarantees."
Distributions
Distributions on the trust securities will be cumulative, will accumulate from
the date of original issuance and will be payable on the dates specified in the
applicable prospectus supplement. Except as specified in the applicable
prospectus supplement, in the event that any date on which distributions are
payable on the trust securities is not a business day, payment of the
distribution will be made on the next succeeding day that is a business day
(without any interest or other payment in respect to the delay), with the same
force and effect as if made on the originally specified date. Each date on which
distributions are payable is referred to in this prospectus as a distribution
date.
The amount of distributions payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months unless otherwise specified in the
applicable prospectus supplement. Distributions to which holders of trust
securities are entitled will accumulate additional distributions at the rate per
annum specified in the applicable prospectus supplement. Distributions on trust
securities as used in this prospectus includes any additional distributions
unless otherwise stated.
The revenue of the Trust available for distribution to holders of its trust
securities will be limited to payments under the corresponding junior
subordinated debentures it owns. The Trust will invest the proceeds from the
issuance and sale of its trust securities in the corresponding junior
subordinated debentures, and it will have no other assets. If we do not make
interest payments on the corresponding junior subordinated debentures, the
property trustee will not have funds available to pay distributions on the
related trust securities. We have guaranteed the payment of distributions (if
and to the extent the Trust has funds legally available for the payment of
distributions and cash sufficient to make the payments) on a limited basis as
set forth herein under "Description of Guarantees."
So long as no event of default has occurred and be continuing, we will have the
right under the Indenture to defer the payment of interest on the junior
subordinated debentures at any time or from time to time for a period not
exceeding 20 consecutive calendar quarters with respect to each deferral period,
provided that no deferral period shall end on a date other than an interest
payment date or extend beyond the stated maturity date. Upon any such election,
quarterly distributions on the trust preferred securities will be deferred by
the Trust during such deferral period. Distributions to which holders of the
trust preferred securities are entitled during any such deferral period will
accumulate additional distributions thereon at the rate stated in the applicable
prospectus supplement. Prior to the termination of any deferral period, we may
further extend the deferral period, provided that an extension will only be
permitted under the trust agreement to the extent that the deferral period,
together with all other extensions occurring both before and after such
extension, does not exceed 20 consecutive calendar quarters, end on a date other
than an interest payment date or extend beyond the stated maturity date. Upon
the termination of any such deferral period and the payment of all amounts then
due on any interest payment date, we may elect to begin a new deferral period,
subject to the above requirements. There is no limitation on the number of
times that we may elect to begin a Deferral Period.
Distributions on the trust securities will be payable to the holders as they
appear on the register of the Trust on the relevant record dates, which, as long
as the trust securities remain in book-entry form, will be one business day
prior to the relevant distribution date. Subject to any applicable laws and
regulations and to the provisions of the trust
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agreement, each distribution payment will be made as described under "Book-Entry
Issuance." In the event any trust securities are not in book-entry form, the
relevant record date for such trust securities shall be the 15th day of the
month in which the relevant distribution date occurs, as specified in the
applicable prospectus supplement.
Payment of Expenses
Pursuant to the indenture, we have agreed to pay all debts and obligations
(other than distributions on the trust securities) and all costs and expenses of
the Trust and to pay any and all taxes, duties, assessments or other
governmental charges (other than United States withholding taxes) imposed by the
United States or any other taxing authority. This includes, but is not limited
to, all costs and expenses relating to the organization of the Trust, the fees
and expenses of the property trustee, the Delaware trustee and the
administrative trustees and all costs and expenses relating to the operation of
the Trust. As a result, the net amounts received and retained by the Trust after
paying these fees, expenses, debts and obligations will be equal to the amounts
the Trust would have received and retained had no fees, expenses, debts and
obligations been incurred by or imposed on it.
Redemption or Exchange
If we repay or redeem, in whole or in part, any junior subordinated debentures
that have been issued to the Trust, whether at maturity or earlier, the proceeds
from the repayment or redemption shall be applied by the property trustee to
redeem a like amount of the trust securities. The property trustee will give not
less than 45 days notice, and the redemption price will be equal to the sum of:
. the aggregate liquidation amount of the trust securities being
redeemed; plus
. accumulated but unpaid distributions on the redeemed trust securities
to the date of redemption; plus
. the related amount of the premium, if any, that we pay upon the
concurrent redemption of corresponding junior subordinated debentures.
If we are repaying or redeeming less than all of any series of junior
subordinated debentures on a redemption date, then the proceeds from the
repayment or redemption shall be allocated to redeem the related trust
securities pro rata. The amount of premium, if any, that we pay to redeem all or
any part of any series of any corresponding junior subordinated debentures will
also be allocated to the redemption pro rata of the related trust securities.
We will have the right to redeem any series of junior subordinated debentures:
. subject to the conditions described above; or
. as may be otherwise specified in the applicable prospectus supplement.
We have the right to dissolve the Trust at any time and, after satisfaction of
any liabilities to creditors of the Trust as provided by applicable law, to
cause the corresponding junior subordinated debentures owned by the Trust to be
distributed to the holders of the related trust securities in liquidation of the
Trust.
If provided in the applicable prospectus supplement, we will have the right to
extend or shorten the maturity of any series of junior subordinated debentures
at the time that we exercise our right to elect to dissolve the Trust and cause
the corresponding junior subordinated debentures to be distributed to the
holders of the related trust securities in liquidation of the Trust. However, we
can extend the maturity only if the conditions specified in the applicable
prospectus supplement are met at the time the election is made and at the time
of the extension.
After the liquidation date fixed for any distribution of corresponding junior
subordinated debentures to the holders of any series of trust securities:
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. that series of trust securities will no longer be deemed to be
outstanding;
. The Depositary Trust Company, New York, New York ("DTC"), or its
nominee, as the record holder of the trust securities, will receive a
registered global certificate or certificates representing the
corresponding junior subordinated debentures to be delivered in the
distribution; and
. any certificates representing that series of trust securities not held
by DTC or its nominee will be deemed to represent the corresponding
junior subordinated debentures having a principal amount equal to the
stated liquidation amount of that series of trust securities, and
bearing accrued and unpaid interest in an amount equal to the accrued
and unpaid distributions on that series of trust securities until the
certificates are presented to the administrative trustees or their
agent for transfer or reissuance.
We cannot predict the market prices for the trust securities or the
corresponding junior subordinated debentures that may be distributed in exchange
for trust preferred securities. As a result, the trust preferred securities that
an investor may purchase, or the corresponding junior subordinated debentures
that an investor may receive on dissolution and liquidation of the Trust, may
trade at a lower price than the investor paid to purchase the trust preferred
securities.
Redemption and Exchange Procedures
Any trust securities that are redeemed on any redemption date will receive the
redemption price from the contemporaneous redemption of the corresponding junior
subordinated debentures. Redemptions of the trust securities will be made and
the redemption price will be payable on each redemption date only to the extent
that the Trust has funds on hand available for the payment of such redemption
price. See "Subordination of Common Securities."
If the Trust gives a notice of redemption in respect of its trust securities,
then, by 12:00 noon, New York City time, on the redemption date, to the extent
that we have deposited with the property trustee by 10:00 a.m., New York City
time, funds sufficient to pay the redemption price, with respect to the trust
preferred securities held by DTC or its nominees, the property trustee will
deposit irrevocably with DTC funds sufficient to pay the applicable redemption
price and will give DTC irrevocable instructions and authority to pay the
redemption price to the holders of such trust securities. See "Book-Entry
Issuance." If the trust preferred securities are no longer in book-entry form,
the property trustee, to the extent funds are available, will irrevocably
deposit with the paying agent for the trust preferred securities funds
sufficient to pay the applicable redemption price and will give the paying agent
irrevocable instructions and authority to pay the redemption price to the
holders thereof upon surrender of their certificates evidencing the trust
preferred securities.
Nevertheless, 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 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 the holders of the
trust securities called for redemption will cease, except the right of the
holders of the trust securities to receive the redemption price, but without
interest on the redemption price, and the trust securities will cease to be
outstanding.
Except as specified in the applicable prospectus supplement, 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 delay). In the event that payment of the redemption
price in respect of trust securities called for redemption is improperly
withheld or refused and not paid either by the Trust or by us pursuant to the
guarantee as described under "Description of Guarantees," then:
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. distributions on those trust securities will continue to accrue at the
then applicable rate, from the redemption date originally established
by the Trust for those trust securities to the date the redemption
price is actually paid; and
. the actual payment date will be the date fixed for redemption for
purposes of calculating the redemption price.
Subject to applicable law (including, without limitation, United States federal
securities law), we or our subsidiaries may at any time and from time to time
purchase outstanding trust preferred securities by tender, in the open market or
by private agreement.
Payment of the redemption price on the trust securities and any distribution of
corresponding junior subordinated debentures to holders of trust securities will
be made to the applicable record holders thereof as they appear on the register
for the trust securities on the relevant record date. Except as provided in the
next sentence, the record date will be one business day prior to the relevant
redemption date or liquidation date, as applicable.
If less than all of the trust preferred securities and common securities issued
by the Trust are to be redeemed on a redemption date, then the aggregate
liquidation amount of trust preferred securities and common securities to be
redeemed shall be allocated pro rata to the trust preferred securities and the
common securities based upon the relative liquidation amounts of the two
classes. The particular trust preferred securities to be redeemed shall be
selected on a pro rata basis not more than 60 days prior to the redemption date
by the property trustee from the outstanding trust preferred securities not
previously called for redemption. The property trustee shall promptly notify the
trust registrar in writing of the trust preferred securities selected for
redemption and, in the case of any trust preferred securities selected for
partial redemption, the liquidation amount to be redeemed. For all purposes of
the trust agreement, unless the context otherwise requires, all provisions
relating to the redemption of trust preferred securities shall relate, in the
case of any trust preferred securities redeemed or to be redeemed only in part,
to the portion of the aggregate liquidation amount of trust preferred securities
which has been or is to be redeemed.
Notice of any redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of trust preferred securities and
common securities to be redeemed at the holder's registered address. Unless we
default in payment of the redemption price on the corresponding junior
subordinated debentures, on and after the redemption date interest ceases to
accrue on the corresponding junior subordinated debentures or portions thereof
(and distributions cease to accrue on the related trust preferred securities and
common securities or portions thereof) called for redemption.
If any redemption date is not a business day, then the liquidation amount and
all accrued and unpaid distributions to the date of redemption will be payable
on the next business day (and without any interest or other payment in respect
of any such delay). However, if the business day is in the next calendar year,
the redemption amount will be payable on the preceding business day.
Distribution of Junior Subordinated Debentures
We will have the right at any time to dissolve the Trust and, after
satisfaction of liabilities to creditors of the Trust as required by applicable
law, to cause the junior subordinated debentures to be distributed to the
holders of the trust securities in liquidation of the Trust.
This right is subject to
. our having received an opinion of counsel to the effect that such
distribution will not be a taxable event to holders of trust preferred
securities; and
. prior approval by the applicable regulatory authorities if it is then
required under applicable regulatory requirements.
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Subordination of Common Securities
Payment of distributions on, and the redemption price of, the Trust's trust
securities generally shall be made pro rata based on the liquidation amount of
the trust securities. However, if on any distribution date or redemption date
an event of default with respect to any corresponding junior subordinated
debenture shall have occurred and be continuing, then:
. neither we nor the Trust shall pay any distribution on, or redemption
price of, any of the Trust's common securities, and neither we nor the
Trust shall make any other payment on account of the redemption,
liquidation or other acquisition of such common securities, unless
. all accumulated and unpaid distributions on all of the Trust's
outstanding trust preferred securities are paid in cash for all
distribution periods terminating on or prior to any payment on
the common securities, and
. in the case of a payment of the redemption price, the full amount
of the redemption price on all of the Trust's outstanding trust
preferred securities then called for redemption shall have been
paid 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 on, or redemption
price of, the Trust's trust preferred securities then due and payable.
In the case of any event of default with respect to any corresponding junior
subordinated debentures, we (as holder of the Trust's common securities) will be
deemed to have waived any right to act with respect to the event of default
under the trust agreement until the effect of all events of default with respect
to such trust preferred securities has been cured, waived or otherwise
eliminated. Until any events of default under the trust agreement with respect
to the trust preferred securities have been cured, waived or otherwise
eliminated, the property trustee is required to act solely on behalf of the
holders of the trust preferred securities and not on our behalf as holder of the
Trust's common securities, and only the holders of such trust preferred
securities will have the right to direct the property trustee to act on their
behalf.
Liquidation Distribution upon Dissolution
Pursuant to the trust agreement, the Trust shall automatically dissolve upon
expiration of its term and shall dissolve on the first to occur of:
. specified events relating to our bankruptcy, dissolution or
liquidation;
. our written direction to the property trustee, as depositor, to
dissolve the Trust and distribute the corresponding junior
subordinated debentures to the holders of the trust securities in
exchange for the trust securities (which direction is optional and
wholly within our discretion as depositor);
. the redemption of all of the Trust's trust securities;
. the entry of an order for the dissolution of the Trust by a court of
competent jurisdiction; and
. expiration of the term of the Trust.
If an early dissolution occurs in any manner except by the redemption of all of
the trust securities, then the Trust will be liquidated by the issuer trustees
as expeditiously as the issuer trustees determine to be possible. Except as
provided in the next sentence, the issuer trustees shall distribute (after
satisfaction of any liabilities to creditors of the Trust as provided by
applicable law) to the holders of such trust securities a like amount of the
corresponding junior subordinated debentures. However, if such a distribution is
determined by the property trustee not to be practical, the holders of the trust
securities will be entitled to receive out of the assets of the Trust available
for distribution to holders (after satisfaction of any liabilities to creditors
of the Trust as provided by applicable law) a liquidation distribution in an
amount equal to, in the case of holders of trust securities, the aggregate of
the
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liquidation amount plus accrued and unpaid distributions thereon to the date of
payment. If 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 the amounts payable directly by the Trust on its trust
securities will be paid on a pro rata basis.
As the holder of the Trust's common securities, we will be entitled to receive
distributions upon any liquidation pro rata with the holders of the trust
preferred securities. However, if an event of default relating to the
corresponding junior subordinated debentures has occurred and is continuing, the
trust preferred securities will have a priority over the common securities.
Events of Default; Notice
Any one of the following events constitutes a trust "event of default" under the
trust agreement with respect to the trust securities issued thereunder (whatever
the reason for the trust event of default):
. the occurrence of an event of default with respect to a corresponding
series of junior subordinated debentures issued under the indenture to
the trust; or
. default by the Trust in the payment of any distribution when it
becomes due and payable, and continuation of the default for a period
of 30 days; or
. default by the Trust in the payment of any redemption price of any
trust security when it becomes due and payable; or
. default in the performance, or breach, in any material respect, of any
covenant or warranty of the Trust in the trust agreement (other than a
default in the payment of any distribution or any redemption price as
provided above), and continuation of that default or breach for a
period of 60 days after there has been given, by registered or
certified mail, to the defaulting issuer trustee or trustees by the
holders of at least 25% in aggregate liquidation preference of the
outstanding trust preferred securities of the Trust, a written notice
specifying the default or breach and requiring it to be remedied and
stating that the notice is a "notice of default" under the trust
agreement; or
. the occurrence of specified events of bankruptcy or insolvency with
respect to the property trustee and our failure to appoint a successor
property trustee within 60 days.
Within 60 business days after the occurrence of any trust event of default
actually known to the property trustee, the property trustee is required to
transmit notice of the trust event of default to the holders of the Trust's
trust preferred securities, to the administrative trustees and to us, as
depositor, unless the trust event of default shall have been cured or waived. We
and the administrative trustees are required to file annually with the property
trustee a certificate as to whether or not we each are in compliance with all
the conditions and covenants applicable to us under the trust agreement.
If an event of default with respect to a corresponding junior subordinated
debenture has occurred and is continuing, the trust preferred securities shall
have a preference over the common securities upon termination of the Trust as
described above. See "--Liquidation Distribution upon Dissolution." The
existence of a trust event of default does not entitle the holders of trust
preferred securities to cause the redemption of the trust preferred securities.
Any holder of trust preferred securities of the Trust shall have the right, upon
the occurrence and continuance of an event of default following our failure to
pay timely interest, principal or premium, to sue us directly. In that lawsuit,
the holder of the trust preferred securities can force us to pay to the holder
the principal of, and premium, if any, and interest on, the debt securities
having a principal amount equal to the aggregate liquidation amount of the trust
preferred securities held by that holder.
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Removal of Issuer Trustees
We as the holder of the common securities may remove an issuer trustee at any
time. Unless an event of default with respect to a corresponding junior
subordinated debenture shall have occurred and be continuing, we as the holder
of the common securities may also remove the property trustee or the Delaware
trustee at any time. If a trust event of default resulting from an event of
default with respect to a corresponding junior subordinated debenture has
occurred and is continuing, the property trustee and the Delaware trustee may be
removed at such time by the holders of a majority in liquidation amount of the
outstanding trust preferred securities. In no event will the holders of the
trust preferred securities have the right to vote to appoint, remove or replace
the administrative trustees. That right belongs exclusively to us as the holder
of the common securities. No resignation or removal of an issuer trustee and no
appointment of a successor trustee will be effective until the successor trustee
accepts its appointment in accordance with the provisions of the trust
agreement.
Co-trustees and Separate Property Trustee
Unless a trust event of default shall have occurred and be continuing, at any
time or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the trust property may
at the time be located, we (as the holder of the common securities) and the
administrative trustees shall have power to appoint one or more persons either
to act as a co-trustee, jointly with the property trustee, of all or any part of
the trust property, or 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 such capacity any
property, title, right or power deemed necessary or desirable, subject to the
provisions of the trust agreement. In case an event of default with respect to a
corresponding junior subordinated debenture has occurred and is continuing, the
property trustee alone will have power to make such an appointment.
Merger or Consolidation of Issuer Trustees
Any corporation into which the property trustee, the Delaware trustee or any
administrative trustee that is not a natural person may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of such trustee, shall be the successor of such trustee under the trust
agreement, provided such corporation shall be otherwise qualified and eligible.
Mergers, Consolidations, Conversions, Amalgamations or Replacements of the Trust
The Trust may not merge with or into, consolidate, convert into, amalgamate, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other person, except as
described below, as described in "--Liquidation Distribution upon Dissolution"
or as described in the prospectus supplement with respect to the trust preferred
securities. The Trust may, at our request, with the consent of the
administrative trustees and without the consent of the property trustee, the
Delaware trustee or the holders of the trust preferred securities, merge with or
into, consolidate, convert into, amalgamate, 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:
. the successor entity either (a) expressly assumes all of the
obligations of the Trust with respect to the trust securities or (b)
substitutes for the trust securities other successor securities having
substantially the same terms as the trust securities so long as the
successor securities rank the same as the trust securities rank in
priority with respect to distributions and payments upon liquidation,
redemption and otherwise;
. we expressly appoint a trustee of such successor entity possessing the
same powers and duties as the property trustee as the holder of the
corresponding junior subordinated debentures;
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. the successor securities are listed, or any successor securities will
be listed upon notification of issuance, on the Nasdaq National Market
or other organization on which the trust preferred securities are then
listed, if any;
. the merger, consolidation, conversion, amalgamation, replacement,
conveyance, transfer or lease does not cause the trust preferred
securities (including any successor securities) to be downgraded by a
nationally recognized statistical rating organization;
. the merger, consolidation, conversion, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the trust preferred
securities (including any successor securities) in any material
respect;
. the successor entity has a purpose substantially similar to that of
the Trust;
. prior to the merger, consolidation, conversion, amalgamation,
replacement, conveyance, transfer or lease, we have received an
opinion from independent counsel to the Trust experienced in such
matters to the effect that
. the merger, consolidation, conversion, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the holders of the trust
preferred securities (including any successor securities) in any
material respect; and
. following the merger, consolidation, conversion, 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;
. we or any permitted successor or assignee owns all of the common
securities of the successor entity and guarantees the obligations of
the successor entity under the successor securities at least to the
extent provided by the guarantee; and
. The property trustee is given an officer's certificate and an opinion
of counsel each to the effect that all conditions precedent in the
Trust Agreement to such transactions have been satisfied.
Notwithstanding the general provisions described above, the Trust shall not,
except with the consent of holders of 100% in liquidation amount of the trust
preferred securities, merge with or into, consolidate, convert into, amalgamate,
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, merge with or into, or replace it if such merger,
consolidation, conversion, amalgamation, 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.
Voting Rights; Amendment of The Trust Agreement
The holders of the trust preferred securities will have only the voting rights
described below and under "Description of Guarantees--Amendments and
Assignment," plus any voting rights required by law.
The trust agreement may be amended from time to time by us, the property trustee
and the administrative trustees, without the consent of the holders of the trust
preferred securities:
. to cure any ambiguity, correct or supplement any provisions in the
trust agreement that may be inconsistent with any other provision, or
to address matters or questions arising under the trust agreement in a
way which is consistent with the other provisions of the trust
agreement; or
. to modify, eliminate or add to any provisions of the trust agreement
if necessary to ensure that the Trust will be classified for United
States federal income tax purposes as a grantor trust or to ensure
that the Trust will not be required to register as an "investment
company" under the Investment Company Act.
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However, in the case of the first clause, the action must not adversely affect
in any material respect the interests of any holder of trust securities. Any
amendment of the trust agreement becomes effective when we give notice of the
amendment to the holders of the trust securities.
The trust agreement may be amended by us and the issuer trustees with:
. the consent of holders representing not less than a majority (based
upon liquidation amounts) of the outstanding trust preferred
securities; and
. receipt by the issuer trustees of an opinion of counsel experienced in
such matters to the effect that the amendment or the exercise of any
power granted to the issuer trustees in accordance with the 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.
However, without the consent of each holder of trust preferred securities, no
amendment may:
. change the amount or timing of any distribution on the trust preferred
securities or reduce the amount payable on redemption thereof or
otherwise adversely affect the amount of any distribution required to
be made in respect of the trust preferred securities as of a specified
date; or
. restrict the right of a holder of trust preferred securities to sue
for the enforcement of any distribution payment.
The property trustee is required to notify each holder of trust securities
whenever the property trustee is notified of a default with respect to the
corresponding junior subordinated debentures. Furthermore, so long as any junior
subordinated debentures are held by the property trustee, the issuer trustees
are not permitted to:
. direct the time, method and place of conducting any proceeding for any
remedy available to the trustee under the indenture, or execute any
trust or power conferred on the property trustee with respect to the
corresponding junior subordinated debentures;
. waive any past default that is waivable under the indenture governing
the junior subordinated debentures;
. exercise any right to rescind or annul a declaration that the
principal of all the corresponding junior subordinated debentures
shall be due and payable; or
. give a required consent to any amendment, modification or termination
of the indenture, the applicable securities resolution or the
corresponding junior subordinated debentures;
unless, in each case, they first obtain the approval of the holders of a
majority in aggregate liquidation amount of all outstanding trust preferred
securities. However, where the indenture requires the consent of each affected
holder of corresponding junior subordinated debentures, the property trustee
cannot give the consent without first obtaining the consent of each holder of
the related trust preferred securities. The issuer trustees cannot revoke any
action previously authorized or approved by a vote of the holders of the trust
preferred securities except by subsequent vote of the holders of the trust
preferred securities.
In addition to obtaining approval of the holders of the trust preferred
securities as described above, the issuer trustees are required to obtain an
opinion of counsel to the effect that the proposed action will not cause the
Trust to be classified as a corporation for United States federal income tax
purposes.
Any required approval of holders of trust preferred securities may be given
either at a meeting of holders of trust preferred securities or pursuant to a
written consent. The property trustee must notify record holders of trust
preferred securities of any meeting in the manner set forth in the trust
agreement.
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No vote or consent of the holders of preferred securities will be required for
the Trust to redeem and cancel the trust preferred securities in accordance with
the trust agreement.
Whenever holders of trust preferred securities are entitled to vote or consent
under any of the circumstances described above, neither we nor the issuer
trustees will be permitted to vote. For purposes of any vote or consent, any of
the trust preferred securities that we own (or that are owned by the issuer
trustees or our affiliates) will be treated as if they were not outstanding.
Payment and Paying Agency
The depositary for the trust securities will make payments in respect of the
trust securities by crediting the relevant accounts at the depositary on the
applicable distribution dates. If the Trust's trust securities are not held by
the depositary, then the paying agent will mail checks to registered holders of
the trust securities as their addresses appear on its Register. Unless otherwise
specified in the applicable prospectus supplement, the paying agent shall
initially be the property trustee and any co-paying agent chosen by the property
trustee and acceptable to the administrative trustees and to us. The paying
agent can resign upon 30 days' written notice to the property trustee and to us.
If the property trustee resigns as paying agent, the administrative trustees
will appoint a bank or trust company acceptable to the administrative trustees
and to us to act as paying agent.
Registrar and Transfer Agent
Unless otherwise specified in the applicable prospectus supplement, the property
trustee will act as registrar and transfer agent for the trust preferred
securities.
The Trust will register transfers of trust preferred securities without charge,
but will require payment of any tax or other governmental charges that may be
imposed in connection with any transfer or exchange. The Trust will not register
transfers of their trust preferred securities after the relevant trust preferred
securities are called for redemption.
Information Concerning the Property Trustee
The property trustee undertakes to perform only the duties that are specifically
set forth in the trust agreement, other than during the continuance of a trust
event of default. After a trust event of default, the property trustee is
required to exercise the same degree of care and skill as a prudent person would
exercise or use in the conduct of his or her own affairs. Subject to this
provision, the property trustee has no obligation to exercise any of its powers
under the trust agreement at the request of any holder of trust preferred
securities unless it is offered reasonable indemnity against the costs, expenses
and liabilities that it might incur by doing so. If no trust event of default
has occurred and is continuing and the property trustee is required to decide
between alternative courses of action, construe ambiguous provisions in the
trust agreement or is unsure of the application of any provision of the trust
agreement, then we will have the right to tell the property trustee which action
to take unless the matter is one on which holders of trust preferred securities
are entitled to vote. If we don't give any directions, the property trustee will
take whatever action it deems advisable and in the best interests of the holders
of the trust securities. The property trustee will have no liability except for
its own bad faith, negligence or willful misconduct.
Miscellaneous
The administrative trustees are authorized and directed to operate the Trust in
such a way that:
. no Trust will be:
. deemed to be an "investment company" required to be registered
under the Investment Company Act; or
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. classified as an association taxable as a corporation for United
States federal income tax purposes; and
. the corresponding junior subordinated debentures will be treated as
our indebtedness for United States federal income tax purposes.
We and the administrative trustees are authorized to take any lawful action
(consistent with the certificate of trust of the Trust and the trust agreement)
that we and the administrative trustees determine in our discretion to be
necessary or desirable for these purposes, as long as the action does not
materially and adversely affect the interests of the holders of the related
trust preferred securities.
Holders of the trust preferred securities have no preemptive or similar rights.
The Trust may not borrow money or issue debt or mortgage or pledge any of its
assets.
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
The junior subordinated debentures are to be issued under an indenture, as
supplemented from time to time, between _______________, as debenture trustee,
and us. The indenture will be qualified under the Trust Indenture Act. We have
summarized selected provisions of the junior subordinated debentures and the
indenture below. This summary is not complete. The form of the indenture has
been filed as an exhibit to the registration statement of which this prospectus
forms a part. You should read the form of indenture for provisions that may be
important to you. You should also consider applicable provisions of the Trust
Indenture Act.
Concurrently with the issuance of the trust preferred securities, the Trust will
invest the proceeds, together with the consideration paid by us for the common
securities, in junior subordinated debentures issued by us. The junior
subordinated debentures will be issued as unsecured debt under the indenture.
We may at any time dissolve the Trust and, after satisfaction of liabilities to
creditors of the Trust, cause the junior subordinated debentures to be
distributed to the holders of the trust securities in liquidation of the Trust.
If the junior subordinated debentures are distributed to the holders of the
trust preferred securities, we will use our best efforts to list the junior
subordinated debentures on a national securities exchange or comparable
automated quotation system.
General
The junior subordinated debentures that we issue to the Trust may be issued in
one or more series under the indenture with terms corresponding to the terms of
a series of trust preferred securities issued by the Trust. Concurrently with
the issuance of the Trust's trust preferred securities, the Trust will invest
the proceeds from the sale of the trust preferred securities and the
consideration we pay for the common securities in a series of corresponding
junior subordinated debentures that we will issue to the Trust.
Each series of corresponding junior subordinated debentures:
. will be unsecured;
. will be in the principal amount equal to the aggregate stated
liquidation amount of the preferred securities and the common
securities of the Trust; and
. will rank equally with all other series of junior subordinated debt
securities in terms of priority of payment.
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Unless provided otherwise in the prospectus supplement, holders of the trust
preferred securities issued by the Trust that owns a series of corresponding
junior subordinated debentures will have the rights summarized above in
connection with modifications to the indenture or upon occurrence of a trust
event of default.
The prospectus supplement will describe specific terms relating to the offering
of the corresponding junior subordinated debentures.
Unless otherwise specified in the applicable prospectus supplement, we will
covenant, as to each series of corresponding junior subordinated debentures:
. to maintain, directly or indirectly, 100% ownership of the common
securities of the Trust to which the corresponding junior subordinated
debentures have been issued (provided that certain successors which
are permitted pursuant to the indenture may succeed to our ownership
of the common securities);
. not to voluntarily dissolve, wind-up or liquidate the Trust, except:
. in connection with a distribution of the junior subordinated
debentures to the holders of the trust preferred securities in
liquidation of the Trust; or
. in connection with certain mergers, consolidations or
amalgamations permitted by the related trust agreement; and
. to use our reasonable efforts, consistent with the terms and
provisions of the related trust agreement, to cause the Trust to
remain classified as a grantor trust and not as an association taxable
as a corporation for United States federal income tax purposes.
Option to Extend Interest Payment Date.
Unless otherwise stated in the applicable prospectus supplement, we will have
the right at any time and from time to time during the term of any series of
corresponding junior subordinated debentures to defer payments of interest for a
specified number of consecutive interest payment, or extension, periods. No
extension period may extend beyond the maturity date of that series of
corresponding junior subordinated debentures. We may pay at any time all or any
portion of the interest accrued to that point during a deferral period. At the
end of the deferral period or at a redemption date, we will be obligated to pay
all interest accrued and unpaid (together with interest on the unpaid interest
to the extent permitted by applicable law.) United States federal income tax
consequences and special considerations applicable to any corresponding junior
subordinated debentures for which an extension period has been elected will be
described in the applicable prospectus supplement. During any extension period,
or while we are in default, we will be restricted in our ability to make
payments or incur obligations related to our capital stock or debt securities
ranking equal to or below the junior subordinated debentures.
Prior to the termination of any extension period, we may further extend the
interest payment period. However, the deferral period, together with all prior
and further extensions, may not exceed 20 consecutive calendar quarters, end on
a date other than an interest payment date or extend beyond the maturity date of
the junior subordinated debentures. After the termination of any deferral period
and the payment of all amounts due, we may decide to begin a new deferral
period, subject to the above requirements.
If the debenture trustee is the sole holder of the series of junior subordinated
debentures held by the Trust, we will give the administrative trustee and the
debenture trustee notice of our selection of any deferral period five business
days prior to the earlier of:
. the next date distributions on the trust preferred securities are
payable; or
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. the date the Trust is required to give notice to the Nasdaq National
Market (or other applicable exchange or self-regulatory organization)
or to holders of the trust preferred securities of the record date or
the date any distribution is payable.
If the debenture trustee is not the sole holder of the series of junior
subordinated debentures, we will give the debenture holders notice of our
selection of any deferral period ten business days prior to the earliest of:
. the next interest payment date; or
. the date upon which we are required to give notice to the Nasdaq
National Market (or other applicable exchange or self-regulatory
organization) or to holders of the junior subordinated debentures of
the record or payment date of any related interest payment.
Additional Sums
If the Trust or the debenture trustee is required to pay any additional taxes,
duties, assessments or other governmental charges, we will pay additional sums
as required so that the distributions payable by the Trust shall not be reduced
as a result of any such additional taxes, duties, assessments or other
governmental charges.
Redemption.
The junior subordinated debentures and the indenture will provide the terms upon
which we can redeem the junior subordinated debentures at our option, and will
specify a date prior to which we will not be allowed to redeem the junior
subordinated debentures, and after which we will have the right to redeem the
junior subordinated debentures, in whole or in part, upon not less than 30 days
nor more than 60 days notice to the holder of the junior subordinated debentures
at a redemption price or prices stated in the applicable prospectus supplement.
If the junior subordinated debentures are redeemed only in part, they will be
redeemed pro rata or by lot or by any other method selected by the trustee. If a
partial redemption of the corresponding junior subordinated debentures would
result in delisting of the trust preferred securities issued by the Trust from
the Nasdaq National Market or other exchange or self-regulatory organization on
which the trust preferred securities are then listed, we will not be permitted
to effect a partial redemption and may only redeem the corresponding junior
subordinated debentures as a whole.
Except as otherwise specified in the applicable prospectus supplement and
subject to the provisions of the applicable securities resolution, if a Special
Event (as defined below) in respect of the Trust occurs and is continuing, we
have the option to redeem the corresponding junior subordinated debentures held
by the Trust, in whole but not in part, at any time within 90 days thereafter.
If the Trust is the holder of all outstanding corresponding junior subordinated
debentures, the proceeds of the redemption will be used by the Trust to redeem
the corresponding trust preferred securities and common securities in accordance
with their terms.
"Special Event" means a "Tax Event," an "Investment Company Event" or a
"Regulatory Capital Event" as the case may be.
"Tax Event" means that the Trust will have received an opinion of counsel
experienced in such matters to the effect that, as a result of any
. amendment to, or change (including any announced proposed change) in,
the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority; or
. official administrative written decision, pronouncement or action or
judicial decision interpreting or applying such laws or regulations;
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in each case which amendment or change is effective or which proposed change,
pronouncement, action or decision is announced on or after the date of issuance
of the applicable series of junior subordinated debentures pursuant to the
applicable securities resolution, there is more than an insubstantial risk that:
. the Trust is, or will be within 90 days of the date of the opinion of
counsel, subject to United States Federal income tax with respect to
income received or accrued on the junior subordinated debentures;
. interest we pay on the corresponding junior subordinated debentures is
not, or will not be within 90 days of the date of the opinion of
counsel, deductible, in whole or in part, for United States Federal
income tax purposes; or
. the Trust is, or will be within 90 days of the date of the opinion of
counsel, subject to more than a de minimis amount of other taxes,
duties or other governmental charges.
"Investment Company Event" means that the Trust will have received 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 on or after the date of original issuance of the
trust preferred securities by the Trust, the Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act.
"Regulatory Capital Event" means that the Trust will have received 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 rules, guidelines or policies of applicable regulatory
agencies; 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 the original issuance of the trust preferred
securities, do not constitute, or within 90 days of the date thereof, will not
constitute, Tier 1 Capital (or its then equivalent) for purposes of the capital
adequacy guidelines of the Board of Governors of the Federal Reserve (or any
successor regulatory authority with jurisdiction over us), or any capital
adequacy guidelines as then in effect and applicable to us. The distribution
of the junior subordinated debentures in connection with the termination of the
Trust by us shall not in and of itself constitute a Regulatory Capital Event.
Restrictions on Certain Payments.
Unless otherwise provided in the applicable prospectus supplement, we will
promise, as to each series of junior subordinated debentures issued to the
Trust, that we and our subsidiaries will not:
. declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of our
capital stock; or
. make any payment of principal, interest or premium, if any, on or
repay, repurchase or redeem any of our debt securities (including
other junior subordinated debentures) that rank equally with or junior
in interest to the junior subordinated debentures; or
. make any guarantee payments with respect to any of the debt securities
of any of our subsidiaries if the guarantee ranks equally with or
junior in interest to the junior subordinated debentures
other than:
. dividends or distributions payable in our common stock;
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. redemptions or purchases of any rights pursuant to a shareholder
rights plan, if any, or any successor rights agreement, and the
declaration of a dividend of rights or the issuance of stock under a
rights agreement in the future;
. payments under any guarantee relating to the trust preferred
securities of the Trust;
. purchases of common stock related to the issuance of common stock
under any benefit plans for our directors, officers or employees;
. obligations under any dividend reinvestment plan or stock purchase
plan; and
. purchases of fractional interests in shares of our capital stock
pursuant to a reclassification of our capital stock or the conversion
or exchange provisions of a security being converted or exchanged for
our capital stock.
These restriction apply only if:
. at that time we have actual knowledge that an event has occurred that
(a) with the giving of notice or the lapse of time, or both, would
constitute an event of default under the indenture with respect to the
junior subordinated debentures of that series and (b) we shall not
have taken reasonable steps to cure the event; or
. the corresponding junior subordinated debentures are held by the Trust
which is the issuer of a series of related trust preferred securities,
and we are in default with respect to payment of any obligations under
the guarantee relating to those trust preferred securities; or
. we shall have given notice of our selection of a deferral of interest
extension period as provided pursuant to the securities resolution
with respect to the corresponding junior subordinated debentures and
shall not have rescinded the notice, or the extension period shall be
continuing.
Debenture Events of Default
Unless otherwise provided in an applicable prospectus supplement, the indenture
provides that any one or more of the following described events with respect to
the junior subordinated debentures constitutes a "debenture event of default,"
regardless of the reason and whether it is voluntary or involuntary or effected
by operation of law or pursuant to any judgment, decree, order, rule or
regulation:
. failure for 30 days to pay any interest on the junior subordinated
debentures or any other debentures, when due (subject to the deferral
of any due date in the case of an deferral period);
. failure to pay any principal on the junior subordinated debentures or
any other debentures when due whether at maturity, upon redemption, by
declaration of acceleration of maturity or otherwise;
. failure to observe or perform certain other covenants contained in the
indenture for 60 days after written notice to us from the debenture
trustee or the holders of at least 25% in aggregate outstanding
principal amount of junior subordinated debentures;
. certain events of our bankruptcy, insolvency or reorganization.
The holders of a majority in aggregate outstanding principal amount of the
junior subordinated debentures have, subject to certain exceptions, the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the debenture trustee or exercising any trust or power conferred on
the debenture trustee, with respect to the junior subordinated debentures. The
debenture trustee or the holders of not less than 25% in aggregate outstanding
principal amount of the junior subordinated debentures may declare the principal
amount of, and any interest on, the junior subordinated debentures to be due and
payable immediately upon a debenture event of default; provided that, in the
case of certain events of bankruptcy, insolvency or reorganization, such amounts
shall automatically become due and payable. If the debenture trustee or
holders of the junior subordinated debentures
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fail to make the declaration, the debenture trustee or the holders of at least
25% in the aggregate liquidation amount of the trust preferred securities will
have the right. The holders of a majority in aggregate outstanding principal
amount of the junior subordinated debentures may annul the declaration and waive
the default if the default (other than the non-payment of the principal of the
junior subordinated debentures which has become due solely by such acceleration)
has been cured and a sum sufficient to pay all matured installments of interest
and principal due otherwise than by acceleration has been deposited with the
debenture trustee. Should the holders of the junior subordinated debentures fail
to annul such declaration and waive the default, the holders of a majority in
aggregate liquidation amount of the trust preferred securities shall have the
right.
The holders of a majority in aggregate outstanding principal amount of the
junior subordinated debentures may, on behalf of the holders of all the junior
subordinated debentures, waive any past default, except a default in the payment
of principal on or interest (unless such default has been cured and a sum
sufficient to pay all matured installments of interest 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
junior subordinated debenture.
In case a debenture event of default occurs and is continuing as to junior
subordinated debentures, the debenture trustee will have the right to declare
the principal of and the interest on such junior subordinated debentures, and
any other amounts payable under the indenture, to be due and payable and to
enforce its other rights as a creditor with respect to such junior subordinated
debentures.
The indenture requires the annual filing by us with the debenture trustee of a
certificate as to the absence of certain defaults under the indenture.
Enforcement of Certain Rights by Holders of Trust Preferred Securities
If a debenture event of default has occurred and is continuing and is
attributable to our failure to pay the principal of or interest on the junior
subordinated debentures on the due date, a holder of trust preferred securities
may institute a direct action against us. We may not amend the indenture to
remove the right to bring a direct action without the prior written consent of
the holders of all of the trust preferred securities. If the right to bring a
direct action is removed, the Trust may become subject to the reporting
obligations under the Exchange Act and the rules and regulations thereunder.
Notwithstanding any payments made to a holder of trust preferred securities by
us in connection with a direct action, we will remain obligated to pay the
principal of or interest on the junior subordinated debentures, and we will be
subrogated to the rights of the holder of such trust preferred securities with
respect to payments on the trust preferred securities to the extent of any
payments made by us to such holder in any direct action.
The holders of the trust preferred securities will not be able to exercise
directly any remedies available to the holders of the junior subordinated
debentures, other than those set forth in the preceding paragraph, unless there
shall have been an event of default under the trust agreement.
Information Concerning the Debenture Trustee
The debenture trustee has and will be subject to all the duties and
responsibilities specified with respect to an indenture trustee under the Trust
Indenture Act. Subject to such provisions, the debenture trustee is under no
obligation to exercise any of the powers vested in it by the indenture at the
request of any holder of junior subordinated debentures, unless offered
reasonable indemnity by such holder against the costs, expenses and liabilities
which might be incurred thereby. The debenture trustee is not required to expend
or risk its own funds or otherwise incur personal financial liability in the
performance of its duties if the debenture trustee reasonably believes that
repayment or adequate indemnity is not reasonably assured to it.
Governing Law
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The laws of the State of New York will govern the indenture and the junior
subordinated debentures.
DESCRIPTION OF GUARANTEES
When the trust securities are issued, we will execute and deliver a guarantee
agreement for the benefit of the holders of the trust preferred securities. The
guarantee agreement will be qualified under the Trust Indenture Act.
_______________ will act as guarantee trustee under the guarantee for the
purposes of compliance with the Trust Indenture Act, and will hold the guarantee
for the benefit of the holders of the Trust's trust preferred securities.
We have summarized certain provisions of the guarantees below. This summary is
not complete. The form of the guarantee agreement has been filed as an exhibit
to the registration statement of which this prospectus forms a part, and you
should read the guarantee agreement for provisions that may be important to you.
General
We will promise to pay the guarantee payments to the holders of the trust
preferred securities, as and when due, regardless of any defense, right of set-
off or counterclaim that the Trust may have or assert other than the defense of
payment. The guarantee payments will rank equal to the corresponding junior
subordinated debentures and will be junior and subordinated to our senior debt
and subordinated debt. The guarantee payments include the following, to the
extent not paid by or on behalf of the Trust:
. any accumulated and unpaid distributions required to be paid on the
trust preferred securities, but only if and to the extent that the
Trust has funds on hand available for the distributions at that time;
. the redemption price with respect to any trust preferred securities
called for redemption, if and to the extent that the Trust has funds
on hand available to pay the redemption price at that time; or
. upon a voluntary or involuntary dissolution, winding up or liquidation
of the Trust (unless the corresponding junior subordinated debentures
are distributed to the holders of the trust preferred securities), the
lesser of:
. the liquidation distribution; and
. the amount of assets of the Trust remaining available for
distribution to holders of trust preferred securities after
satisfaction of liabilities to creditors of the Trust as required
by applicable law.
Our obligation to make a guarantee payment may be satisfied either by our direct
payment of the required amounts to the holders of the trust preferred securities
or by causing the Trust to pay them.
The guarantee will be an irrevocable guarantee on a junior subordinated basis of
the Trust's obligations under the trust preferred securities, but will apply
only to the extent that the Trust has funds sufficient to make the required
payments. The guarantee is a guarantee of payment, not a guarantee of
collection.
If we do not make interest payments on the corresponding junior subordinated
debentures held by the Trust, the Trust will not be able to pay distributions on
the trust preferred securities. The guarantee will rank subordinate and junior
in right of payment to all of our senior indebtedness and subordinated
indebtedness. See "--Status of the Guarantees." Because we are a holding
company, our right to participate in any distribution of assets of any
subsidiary upon such subsidiary's liquidation or reorganization or otherwise is
subject to the prior claims of creditors of that subsidiary, except to the
extent we may be recognized as a creditor of that subsidiary. Accordingly, our
obligations under the guarantee effectively will be subordinated to all existing
and future liabilities of our subsidiaries, and all liabilities of any of our
future subsidiaries. Claimants should look only to our assets for
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<PAGE>
payments under the guarantee. The guarantee does not limit our ability to incur
or issue other secured or unsecured debt, including senior and subordinated
indebtedness, whether under the indenture, any other indenture that we may enter
into in the future or otherwise. Except as otherwise provided in the applicable
prospectus supplement, we and our subsidiaries are not limited in the amount of
secured or unsecured debt that we may have outstanding.
Our obligations described herein and in any accompanying prospectus supplement,
through the guarantee agreement, the trust agreement, the corresponding junior
subordinated debentures, and the applicable securities resolution under the
indenture, taken together, constitute our full, irrevocable and unconditional
guarantee of payments due on the trust preferred securities. No single document
standing alone or operating in conjunction with fewer than all of the other
documents constitutes the guarantee. It is only the combined operation of these
documents that has the effect of providing a full, irrevocable and unconditional
guarantee of the Trust's obligations under the trust preferred securities. See
"Description of Trust Preferred Securities."
Status of the Guarantees
The guarantee will constitute our unsecured obligation and will rank subordinate
and junior in right of payment to all of our senior debt and subordinated debt.
The guarantee will rank equally with all other guarantees we issue relating to
trust preferred securities issued by the Trust. The guarantee will constitute a
guarantee of payment and not of collection (i.e., the guaranteed party may
institute a legal proceeding directly against us as the guarantor to enforce its
rights under the guarantee without first suing anyone else). Each guarantee will
be held for the benefit of the holders of the related trust preferred
securities. The guarantee will be discharged only by payment of the guarantee
payments in full (to the extent not paid by the Trust) or by distribution of the
corresponding junior subordinated debentures to the holders of the trust
preferred securities. None of the guarantees places a limitation on the amount
of additional senior indebtedness or subordinated indebtedness that we may
incur. We expect from time to time to incur additional indebtedness constituting
senior indebtedness or subordinated indebtedness.
Amendments and Assignment
Except with respect to any changes which do not adversely affect the rights of
holders of the related trust preferred securities in any material respect (in
which case no vote will be required), no guarantee may be amended without the
prior approval of the holders of not less than a majority of the aggregate
liquidation amount of the related outstanding trust preferred securities. The
manner of obtaining any required approval will be as set forth under
"Description of Trust Preferred Securities--Voting Rights; Amendment of Trust
Agreement." All guarantees and agreements contained in each guarantee agreement
will bind our successors, assigns, receivers, trustees and representatives and
will benefit the holders of the related trust preferred securities then
outstanding.
Events of Default
We will be in default under any guarantee agreement if (a) we don't make
required payments or (b) we are notified that we haven't performed some other
obligation.
The holders of a majority in aggregate liquidation amount of the related trust
preferred 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 the
guarantee agreement; or
. to direct the exercise of any power conferred upon the guarantee
trustee under the guarantee agreement.
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Holders of a majority in aggregate liquidation amount of the related trust
preferred securities also have the right to waive any past event of default and
its consequences.
Any holder of the trust preferred securities may institute a legal proceeding
directly against us to enforce the Trust's rights under the guarantee agreement
without first instituting a legal proceeding against the Trust, the guarantee
trustee or anyone else.
As guarantor, we are required to file annually with the guarantee trustee a
certificate stating whether or not we are in compliance with all the conditions
and covenants applicable to us under the guarantee agreement.
Information Concerning the Guarantee Trustee
The guarantee trustee promises to perform only the duties that are specifically
set forth in each guarantee agreement, other than during the occurrence and
continuance of a default by us in performance of any guarantee. After we default
and while the default continues, the guarantee trustee must exercise the same
degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision, the guarantee
trustee is under no obligation to exercise any of the powers vested in it by any
guarantee agreement at the request of any holder of any preferred securities
unless it is offered reasonable indemnity against the costs, expenses and
liabilities that it might incur by doing so.
Termination of the Guarantees
The guarantee will terminate upon full payment of the redemption price of the
related trust preferred securities, upon full payment of the amounts payable
upon liquidation of the Trust or upon distribution of corresponding junior
subordinated debentures to the holders of the related trust preferred
securities. The guarantee will continue to be effective or will be reinstated,
as the case may be, if at any time any holder of the related trust preferred
securities must restore payment of any sums paid under the trust preferred
securities or the guarantee.
Governing Law
The guarantee agreement will be governed by and construed in accordance with the
laws of the State of New York.
RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES, THE CORRESPONDING
JUNIOR SUBORDINATED DEBENTURES AND THE GUARANTEES
Full and Unconditional Guarantee
We irrevocably guarantee payments of distributions and other amounts due on the
trust preferred securities (to the extent the trust has funds available for the
payment of the distributions) as and to the extent set forth under "Description
of Guarantees." Taken together, our obligations under each series of
corresponding junior subordinated debentures, the related securities resolution,
the indenture, the trust agreement and the guarantee agreement provide, in the
aggregate, a full, irrevocable and unconditional guarantee of payments of
distributions and other amounts due on the related series of trust preferred
securities. No single document standing alone or operating in conjunction with
fewer than all of the other documents constitutes the full guarantee. It is only
the combined operation of these documents that has the effect of providing a
full, irrevocable and unconditional guarantee of the Trust's obligations under
the trust preferred securities.
If and to the extent that we do not make payments on any series of corresponding
junior subordinated debentures, the Trust will not pay distributions or other
amounts due on its trust preferred securities. The guarantee does not
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cover payment of distributions when the Trust does not have sufficient funds to
pay the distributions. In that event, the remedy for a holder of a series of
trust preferred securities is to institute a legal proceeding directly against
us for enforcement of payment of the distributions to such holder. Our
obligations under the guarantee are subordinate and junior in right of payment
to all of our senior indebtedness and subordinated indebtedness.
Sufficiency of Payments
As long as all payments are made when due on each series of corresponding junior
subordinated debentures, those payments will be sufficient to cover
distributions and other payments due on the related trust preferred securities.
This is primarily because:
. the aggregate principal amount of each series of corresponding junior
subordinated debentures will be equal to the sum of the aggregate
stated liquidation amount of the related trust securities;
. the interest rate and interest and other payment dates on each series
of corresponding junior subordinated debentures will match the
distribution rate and distribution and other payment dates for the
related trust securities;
. we, as borrower, have promised to pay any and all costs, expenses and
liabilities of the Trust except the Trust's obligations under its
trust securities; and
. the trust agreement provides that the Trust will not engage in any
activity that is not consistent with the limited purposes of the
Trust.
We have the right to set-off any payment we are otherwise required to make under
the indenture if and to the extent we have already made, or are concurrently
making, a payment under the guarantee agreement.
Enforcement Rights of Holders of Trust Preferred Securities
A holder of any trust preferred security may institute a legal proceeding
directly against us to enforce its rights under the guarantee agreement without
first instituting a legal proceeding against the guarantee trustee, the Trust or
anyone else.
Our default or event of default under any other senior or subordinated
indebtedness would not necessarily constitute a trust event of default. However,
in the event of payment defaults under, or acceleration of, our senior or
subordinated indebtedness, the subordination provisions of the applicable
securities resolution will provide that no payments may be made in respect of
the corresponding junior subordinated debentures until the senior or
subordinated indebtedness has been paid in full or any payment default
thereunder has been cured or waived. Our failure to make required payments on
any series of corresponding junior subordinated debentures would constitute a
trust event of default.
Limited Purpose of the Trust
The Trust's trust securities evidence undivided beneficial ownership interests
in the assets of the Trust, and the Trust exists for the sole purposes of
issuing its trust securities, investing the proceeds in corresponding junior
subordinated debentures and engaging in only those other activities necessary,
convenient or incidental to those purposes. A principal difference between the
rights of a holder of a trust security and a holder of a corresponding junior
subordinated debenture is that a holder of a junior subordinated debenture is
entitled to receive from us the principal amount of and interest accrued on
corresponding junior subordinated debentures held, while a holder of trust
securities is entitled to receive distributions from the Trust (or from us under
the guarantee agreement) if and to the extent the Trust has funds available for
the payment of the distributions.
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Rights Upon Dissolution
Upon any voluntary or involuntary dissolution of the Trust involving the
liquidation of the corresponding junior subordinated debentures, the holders of
the related trust securities will be entitled to receive the liquidation
distribution in cash, out of assets of the Trust (and after satisfaction of
creditors of the Trust as provided by applicable law). See "Description of Trust
Preferred Securities--Liquidation Distribution upon Dissolution." If we become
subject to any voluntary or involuntary liquidation or bankruptcy, the property
trustee, as holder of the corresponding junior subordinated debentures, would be
one of our junior subordinated creditors. The property trustee would be
subordinated in right of payment to all of our senior indebtedness and
subordinated indebtedness, but it would be entitled to receive payment in full
of principal and interest before our stockholders receive payments or
distributions. We are the guarantor under each guarantee agreement and pursuant
to the indenture, as borrower, have agreed to pay all costs, expenses and
liabilities of the Trust (other than the Trust's obligations to the holders of
its trust securities). Accordingly, in the event of our liquidation or
bankruptcy the positions of a holder of trust preferred securities and of a
holder of corresponding junior subordinated debentures are expected to be
substantially the same relative to our other creditors and to our stockholders.
BOOK-ENTRY ISSUANCE
Book Entry System
We may issue debt securities, the trust preferred securities and corresponding
junior subordinated debentures of a series and preferred stock under a book-
entry system in the form of one or more global securities. We will register the
global securities in the name of a depositary or its nominee and deposit the
global securities with that depositary. Unless we state otherwise in the
prospectus supplement, DTC will be the depositary if we use a depositary.
DTC has advised us as follows:
. DTC is
. a limited purpose trust company organized under the laws of the
State of New York;
. a "banking organization" within the meaning of the New York
banking law or a member of the Federal Reserve System;
. a "clearing corporation" within the meaning of the New York
Uniform Commercial Code; and
. a "clearing agency" registered pursuant to the provisions of
Section 17A of the Securities Exchange Act of 1934.
DTC was created to hold securities of its participants and to facilitate the
clearance and settlement of securities transactions among its participants
through electronic book entry changes in accounts of its participants,
eliminating the need for physical movements of securities certificates. DTC's
participants include securities brokers and dealers, banks, trust companies,
clearing corporations and others, some of whom own DTC. Access to DTC's book-
entry system is also available to others that clear through or maintain a
custodial relationship with a participant, either directly or indirectly.
Following the issuance of a global security in registered form, the depositary
will credit the accounts of its participants with the securities issued upon our
instructions. Only persons who hold directly or indirectly through financial
institutions that are participants in the depositary can hold beneficial
interests in the global securities.
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Since the laws of some jurisdictions require certain types of purchasers to take
physical delivery of such securities in definitive form, you may encounter
difficulties in your ability to own, transfer or pledge beneficial interests in
a global security.
So long as the depositary or its nominee is the registered owner of a global
security, we and/or the trustee, as applicable, will treat the depositary as the
sole owner or holder of the securities for purposes of the applicable indenture.
Therefore, except as set forth below, you will not be entitled to have
securities registered in your name or to receive physical delivery of
certificates representing the securities. Accordingly, you will have to rely on
the procedures of the depositary and the participant in the depositary through
whom you hold your beneficial interest in order to exercise any rights of a
holder under the applicable indenture. We understand that under existing
practices, the depositary would act upon the instructions of a participant or
authorize that participant to take any action that a holder is entitled to take.
We will make all payments of principal, premium and interest on the securities
to the depositary. We expect that the depositary will then credit participants'
accounts proportionately with these payments on the payment date and that the
participants will in turn credit their customers in accordance with their
customary practices. Neither we nor the trustee will be responsible for making
any payments to participants or customers of participants or for maintaining any
records relating to the holdings of participants and their customers and you
will have to rely on the procedures of the depositary and its participants.
Global securities are generally not transferrable. We will issue physical
certificates to beneficial owners of a global security if:
. The depositary notifies us that it is unwilling or unable to continue
as depositary and we do not appoint a successor within 90 days;
. The depositary ceases to be a clearing agency registered under the
Exchange Act and we do not appoint a successor within 90 days; or
. We decide in our sole discretion that we do not want to have the
securities of the particular series in question represented by global
securities.
DTC may discontinue providing its services as securities depositary with respect
to any of the trust preferred securities or the junior subordinated debentures
at any time by giving reasonable notice to the relevant Issuer Trustee and us.
In the event that a successor securities depositary is not obtained, definitive
trust preferred securities or junior subordinated debentures certificates
representing such trust preferred securities or junior subordinated debentures
are required to be printed and delivered. We, at our option, may decide to
discontinue use the system of book-entry transfers through DTC (or a successor
depositary). After a Debenture Event of Default, the holders of a majority in
liquidation preference of trust preferred securities or aggregate principal
amount of junior subordinated debentures may determine to discontinue the system
of book-entry transfers through DTC. In any such event, definitive certificates
for such trust preferred securities or junior subordinated debentures will be
printed and delivered.
The information in this section concerning DTC and DTC's book-entry system has
been obtained from sources that we and the Trust we believe to be accurate but
neither the Trust nor we assume any responsibility for the accuracy thereof.
Neither we nor the Trust have any responsibility for the performance by DTC or
its participants of their respective obligations as described herein or under
the rules and procedures governing their respective operations.
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PLAN OF DISTRIBUTION
We (or, in the case of the trust preferred securities, junior subordinated
indentures and the guarantees, we and the Trust) may sell the securities
described in this prospectus through agents, underwriters, dealers or directly
to purchasers.
Agents who we (or, in the case of the trust preferred securities, junior
subordinated indentures and the guarantees, we and the Trust) designate may
solicit offers to purchase the securities.
. We will name any agent involved in offering or selling the securities,
and any commissions that we will pay to the agent, in our prospectus
supplement.
. Unless we indicate otherwise in our prospectus supplement, our agents
will act on a best efforts basis for the period of their appointment.
. Our agents may be deemed to be underwriters under the Securities Act
of any of the securities that they offer or sell.
We (or, in the case of the trust preferred securities, junior subordinated
indentures and the guarantees, we and the Trust) may use an underwriter or
underwriters in the offer or sale of the securities.
. If we and/or the Trust use an underwriter or underwriters, we and/or
the Trust and/or the Trust will execute an underwriting agreement with
the underwriter or underwriters at the time that we reach an agreement
for the sale of the securities.
. We and/or the Trust will include the names of the specific managing
underwriter or underwriters, as well as any other underwriters, and
the terms of the transactions, including the compensation the
underwriters and dealers will receive, in the prospectus supplement.
. The underwriters will use our prospectus supplement to sell the
securities.
We (or, in the case of the trust preferred securities, junior subordinated
indentures and the guarantees, we and the Trust) may use a dealer to sell the
securities.
. If we and/or the Trust use a dealer, we, as principal, will sell the
securities to the dealer.
. The dealer will then sell the securities to the public at varying
prices that the dealer will determine at the time it sells the
securities.
. We and/or the Trust will include the name of the dealer and the terms
of the transactions with the dealer in the prospectus supplement.
We (or, in the case of the trust preferred securities, junior subordinated
indentures and the guarantees, we and the Trust) may solicit directly offers to
purchase the securities, and we and/or the Trust may directly sell the
securities to institutional or other investors. We will describe the terms of
our direct sales in our prospectus supplement.
We (or, in the case of the trust preferred securities, junior subordinated
indentures and the guarantees, we and the Trust) may indemnify agents,
underwriters, and dealers against certain liabilities, including liabilities
under the Securities Act. Our agents, underwriters, and dealers, or their
affiliates, may be customers of, engage in transactions with or perform services
for us, in the ordinary course of business.
We (or, in the case of the trust preferred securities, junior subordinated
indentures and the guarantees, we and the Trust) may authorize our agents and
underwriters to solicit offers by certain institutions to purchase the
securities at the public offering price under delayed delivery contracts.
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. If we and/or the Trust use delayed delivery contracts, we will
disclose that we are using them in the prospectus supplement and will
tell you when we will demand payment and delivery of the securities
under the delayed delivery contracts.
. These delayed delivery contracts will be subject only to the
conditions that we set forth in the prospectus supplement.
. We will indicate in our prospectus supplement, the commission that
underwriters and agents soliciting purchases of the securities under
delayed contracts will be entitled to receive.
LEGAL MATTERS
Elias, Matz, Tiernan & Herrick L.L.P., Washington, D.C., will pass upon the
validity of our securities and certain other legal matters in connection with
our offering of our securities, unless we indicate otherwise in a prospectus
supplement. ___________________, _____________, Delaware, will pass upon the
validity under Delaware law of the Trust's trust securities, unless we indicate
otherwise in a prospectus supplement.
EXPERTS
The financial statements incorporated in this prospectus by reference from our
Annual Report on Form 10-K have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
Documents incorporated by reference in the future in this prospectus will
include financial statements, related schedules, if required, and independent
auditors' reports. The financial statements and schedules will have been
audited to the extent and for the periods identified in the reports by the firm
submitting the report. If audited financials are incorporated by reference, it
will be based on reports given on the authority of the issuing firm as experts
in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
<TABLE>
<S> <C>
SEC registration fee $13,200
NASD fee (1)
Legal fees and expenses (1)
Trustees' fees and expenses (1)
Accounting fees and expenses (1)
Printing expenses (1)
Miscellaneous expenses (1)
-------
Total $ (1)*
-------
</TABLE>
- -----------------
* All amounts are estimated except for the registration fee.
(1) To be provided by amendment.
Item 15. Indemnification of Directors and Officers.
East West Bancorp, Inc. is incorporated under the Delaware General
Corporation Law, of which Section 145 provides as follows:
"(a) A corporation shall have power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and
<PAGE>
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the present or
former director, officer, employee or agent is proper in the circumstances
because the person has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made, with
respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4)
by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director
in defending any civil, criminal, administrative or investigative action, suit
or proceeding may be paid by the corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified by the
corporation as authorized in this section. Such expenses (including attorneys'
fees) incurred by former directors and officers or other employees and agents
may be so paid upon such terms and conditions, if any, as the corporation deems
appropriate.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this section shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would have the power to
indemnify such person against such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer,
II-2
<PAGE>
employee or agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this section shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees)."
* * *
Article XIII of East West Bancorp, Inc.'s Certificate of Incorporation
provides as follows:
"Section 1. The Corporation shall indemnify to the maximum extent
permitted by law:
(a) any person who is or was a director or executive officer of the
Corporation; and
(b) any person who serves or served at the Corporation's request as a
director, officer, employee, partner, or trustee of another corporation,
partnership, joint venture, trust, or other enterprise.
Section 2. The Corporation may pay in advance any expenses (including
attorneys' fees) which may become subject to indemnification under this Article
XIII if the person receiving the payment undertakes in writing to repay the same
if it is ultimately determined that the person is not entitled to
indemnification by the Corporation under this Article XIII.
Section 3. Any indemnification and advancement of expenses provided by
Sections 1 and 2 of this Article XIII or otherwise granted pursuant to Delaware
law shall not be exclusive of any other rights to which a person may be entitled
by law, bylaw, agreement, vote of stockholders, or Disinterested Directors, or
otherwise.
Section 4. The indemnification and advance payment provided by Sections 1
and 2 of this Article XIII shall continue as to a person who has ceased to hold
a position named in Section 1 of this Article XIII and shall inure to the
person's heirs, executors, and administrators.
Section 5. The Corporation may purchase and maintain insurance on behalf
of any person who holds or who has held any position named in Section 1 of this
Article XIII, against any liability asserted against the person and incurred by
the person in any such position, or arising out of the person's status as such,
whether or not the Corporation would have power to indemnify the person against
such liability under Section 1 of this Article XIII.
Section 6. If Delaware law is amended to permit further indemnification of
the directors and executive officers of the Corporation, then the Corporation
shall indemnify persons to the fullest extent permitted by Delaware law, as so
amended. Any repeal or modification of this Article XIII by the stockholders of
the Corporation shall not adversely affect any right or protection of a person
existing at the time of such repeal or modification."
* * *
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<PAGE>
Article VI of East West Bancorp, Inc.'s Bylaws provide as follows:
SECTION 6.1 Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or executive
officer of the Corporation, is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, or was a director or executive officer of a
foreign or domestic corporation which was a predecessor of the Corporation or of
another enterprise at the request of such predecessor corporation, whether the
basis of such proceeding is alleged action in an official capacity as a director
or executive officer or in any other capacity while serving as a director or
executive officer shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including attorney's fees, judgments, fines, ERISA excise taxes of penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith and such indemnification shall continue as
to a person who has ceased to be a director or executive officer and shall inure
to the benefit of his or her heirs, executors and administrators; provided,
however, that, except as provided in Section 6.2 of this Article VI, the
Corporation shall indemnify and such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this Section 6.1
shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that if the Delaware General
Corporation Law requires the payment of such expenses incurred by a director or
officer in his or her capacity as a director or officer (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such director
or officer, to repay, all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this Section or otherwise. The Corporation may by action of its Board of
Directors, provide indemnification to employees and agents of the Corporation
with the same scope and effect as the foregoing indemnification of directors and
officers. This Article VI shall create a right of indemnification for each such
indemnifiable party whether or not the proceeding to which the indemnification
relates arose in whole or in part prior to adoption of this Article VI (or the
adoption of the comparable provisions of the Bylaws of the Corporation's
predecessor corporation).
SECTION 6.2 Right of Claimant to Bring Suit. If a claim under Section 6.1
of this Article VI is not paid in full by the Corporation within thirty days
after a written claim has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expense of prosecuting such claim. It shall be
a defense to any such action (other than an action brought to enforce a claim
for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law for
the Corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper to the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law nor an actual determination by the Corporation
(including its Board of Directors, independent
II-4
<PAGE>
legal counsel, or its stockholders) that the claimant has not met such
applicable standard or conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
SECTION 6.3 Nonexclusivity of Rights. The right to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Article VI shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, any Bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION 6.4 Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
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<PAGE>
Item 16. Exhibits and Financial Statement Schedules
Exhibit No. Description
- ----------- -----------
1.1 Form of Underwriting Agreement for debt securities, trust preferred
securities, preferred stock or common stock*
4.1 Form of Indenture for debt securities (including form of certificate of
debt security)
4.2 Form of Indenture for junior subordinated debentures to be issued to
East West Bancorp Capital Trust I relating to the trust preferred
securities (including form of certificate of junior subordinated
debentures)
4.3 Form of certificate of designation of series of preferred stock*
4.4 Form of Certificate of Trust of East West Bancorp Capital Trust I
4.5 Form of Amended and Restated Declaration of Trust of East West Bancorp
Capital Trust I (including form of trust preferred security
certificate)
4.6 Form of Guarantee of East West Bancorp relating to the trust preferred
securities
5.1 Opinion and consent of Elias, Matz, Tiernan & Herrick L.L.P.*
5.2 Opinion of __________________________*
8.0 Opinion of Elias, Matz, Tiernan & Herrick L.L.P. as to certain federal
income tax matters*
12.1 Computation of ratio of earnings to combined fixed charges and
preferred stock dividends (excluding interest on deposits)*
12.2 Computation of ratio of earnings to combined fixed charges and
preferred stock dividends (including interest on deposits)*
23.1 Consent of Deloitte & Touche
23.2 Consent of Elias, Matz, Tiernan & Herrick L.L.P. (included in Exhibit
5.1)*
23.3 Consent of _________________________ (included in Exhibit 5.2)*
24 Power of Attorney of certain officers, directors and trustees (located
on the signature page hereto)
25.1 Form T-1 Statement of Eligibility of _______________ to act as trustee
under the Indentures*
25.2 Form T-1 Statement of Eligibility of _______________ to act as trustee
under the Declaration of Trust of East West Bancorp Capital Trust I*
25.3 Form T-1 Statement of Eligibility of _______________ under the
Guarantee for the benefit of the holders of the Trust Preferred
Securities*
___________________
* To be filed as an exhibit to a document to be incorporated by reference for
the specific offering of securities, if any, to which it relates.
Item 17. Undertakings
Each of the Registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
Registration Statement; (i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any
facts or events arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
the Registration Statement; (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement; provided, however, that the undertakings set forth in clauses (i) and
(ii) above do not apply if the information required to be included in a post-
effective amendment by those clauses is contained in periodic reports filed by
the Registrants pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this Registration
Statement.
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<PAGE>
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from the registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
Each of the undersigned Registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of a Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of each
undersigned Registrant pursuant to the provisions, or otherwise, each Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by each undersigned Registrant of
expenses incurred or paid by a director, officer of controlling person of each
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, each Registrant will, unless in the opinion of its
counsel the matter has been settled by the controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
For purposes of determining any liability under the Securities Act of 1933, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrants pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act of 1933 shall be deemed to be part of this registration
statement as of the time it was declared effective.
For the purpose of determining any liability under the Securities Act of 1933,
each post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, East West Bancorp,
Inc. certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Marino, State of California on the 3rd day of
February 2000.
EAST WEST BANCORP, INC.
By: /s/ Douglas Krause
----------------------------------------
Douglas Krause
Executive Vice President
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated. Each of the directors and/or officers of East West Bancorp,
Inc. whose signature appears below hereby appoints Julia Gouw and Douglas
Krause, and each of them severally, as his or her attorney-in-fact to sign in
his or her name and behalf, in any and all capacities stated below and to file
with the Securities and Exchange Commission any and all amendments, including
post-effective amendments, to this Registration Statement on Form S-3, making
such changes in the Registration Statement as appropriate, and generally to do
all such things in their behalf in their capacities as directors and/or officers
to enable East West Bancorp, Inc. to comply with the provisions of the
Securities Act of 1933, and all requirements of the Securities and Exchange
Commission.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Dominic Ng Chairman of the Board, President and February 3, 2000
- -------------------------------------------- Chief Executive Officer
Dominic Ng (principal executive officer)
/s/ Julia Gouw Executive Vice President and Chief February 3, 2000
- ------------------------------------------- Financial Officer
Julia Gouw (principal financial and accounting officer)
/s/ Herman Li Director February 3, 2000
- -------------------------------------------
Herman Li
/s/ Jack C. Liu Director February 3, 2000
- -------------------------------------------
Jack C. Liu
/s/ Kenneth P. Slosser Director February 3, 2000
- -------------------------------------------
Kenneth P. Slosser
/s/ Edward Zapanta Director February 3, 2000
- -------------------------------------------
Edward Zapanta
/s/ Keith Renken Director February 3, 2000
- -------------------------------------------
Keith Renken
</TABLE>
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<PAGE>
Pursuant to the requirements of the Securities Act of 1933, East West Bancorp
Capital Trust I certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Marino, State of California, on the 3rd day
of February 2000.
EAST WEST BANCORP CAPITAL TRUST I
By: /s/ Dominic Ng
---------------------------
Dominic Ng
Administrative Trustee
By: /s/ Julia Gouw
---------------------------
Julia Gouw
Administrative Trustee
By: /s/ Douglas Krause
--------------------------
Douglas Krause
Administrative Trustee
II-9
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
1.1 Form of Underwriting Agreement for debt securities, trust preferred
securities, preferred stock or common stock*
4.1 Form of Indenture for debt securities (including form of certificate of
debt security)
4.2 Form of Indenture for junior subordinated debentures to be issued to East
West Bancorp Capital Trust I relating to the trust preferred securities
(including form of certificate of junior subordinated debentures)
4.3 Form of certificate of designation of series of preferred stock*
4.4 Form of Certificate of Trust of East West Bancorp Capital Trust I
4.5 Form of Amended and Restated Declaration of Trust of East West Bancorp
Capital Trust I (including form of trust preferred security certificate)
4.6 Form of Guarantee of East West Bancorp relating to the trust preferred
securities
5.1 Opinion and consent of Elias, Matz, Tiernan & Herrick L.L.P.*
5.2 Opinion of ______________________*
8.0 Opinion of Elias, Matz, Tiernan & Herrick L.L.P. as to certain federal
income tax matters*
12.1 Computation of ratio of earnings to combined fixed charges and preferred
stock dividends (excluding interest on deposits)*
12.2 Computation of ratio of earnings to combined fixed charges and
preferred stock dividends (including interest on deposits)*
23.1 Consent of Deloitte & Touche
23.2 Consent of Elias, Matz, Tiernan & Herrick L.L.P. (included in Exhibit
5.1)*
23.3 Consent of _____________ (included in Exhibit 5.2)*
24 Power of Attorney of certain officers, directors and trustees (located on
the signature page hereto)
25.1 Form T-1 Statement of Eligibility of _______________ to act as trustee
under the Indentures*
25.2 Form T-1 Statement of Eligibility of _______________ to act as trustee
under the Declaration of Trust of East West Bancorp Capital Trust I*
25.3 Form T-1 Statement of Eligibility of _______________ under the Guarantee
for the benefit of the holders of the Trust Preferred Securities*
___________________
* To be filed as an exhibit to a document to be incorporated by reference for
the specific offering of securities, if any, to which it relates.
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<PAGE>
EXHIBIT 4.1
================================================================================
EAST WEST BANCORP, INC.
DEBT SECURITIES
-----------------
INDENTURE
DATED AS OF _________ __, 2000
-----------------
________________________, AS TRUSTEE
===============================================================================
<PAGE>
<TABLE>
<CAPTION>
PARTIAL CROSS-REFERENCE TABLE
INDENTURE SECTION TIA SECTION
<C> <S>
2.05 ............................................... 317(b)
2.06 ............................................... 312(a), 313(c)
2.11 ............................................... 316(a) (last sentence)
4.04 ............................................... 314(a)(4)
4.05 ............................................... 314(a)(1)
6.03 ............................................... 317(a)(1)
6.04 ............................................... 316(a)(1)(B)
6.05 ............................................... 316(a)(1)(A)
6.07 ............................................... 317(a)(1)
7.01 ............................................... 315(a), 315(d)
7.04 ............................................... 315(b)
7.05 ............................................... 313(a), 313(d)
7.07 ............................................... 310(a), 310(b)
7.09 ............................................... 310(a)(2)
8.02 ............................................... 310(a), 310(b)
10.04 ............................................... 316(c)
11.01 ............................................... 318(a)
11.02 ............................................... 313(c)
11.03 ............................................... 314(c)(1), 314(c)(2)
11.04 ............................................... 314(e)
</TABLE>
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<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
ARTICLE 1 -- DEFINITIONS
<S> <C> <C>
SECTION 1.01. Definition....................................................... 1
SECTION 1.02. Other Definitions................................................ 4
SECTION 1.03. Rules of Construction............................................ 4
ARTICLE 2 --THE SECURITIES
SECTION 2.01. Issuable in Series............................................... 5
SECTION 2.02. Execution and Authentication..................................... 7
SECTION 2.03. Registrar and Transfer, Paying and Conversion Agents and
Other Agents................................................. 8
SECTION 2.04. Bearer Securities................................................ 9
SECTION 2.05. Paying Agent to Hold Money in Trust.............................. 9
SECTION 2.06. Securityholder Lists............................................. 10
SECTION 2.07. Transfer and Exchange............................................ 10
SECTION 2.08. Replacement Securities........................................... 11
SECTION 2.09. Outstanding Securities........................................... 11
SECTION 2.10. Discounted Debt Securities....................................... 12
SECTION 2.11. Treasury Securities.............................................. 12
SECTION 2.12. Global Securities................................................ 12
SECTION 2.13. Temporary Securities............................................. 12
SECTION 2.14. Cancellation..................................................... 13
SECTION 2.15. Defaulted Interest............................................... 13
SECTION 2.16 CUSIP Numbers.................................................... 13
ARTICLE 3 -- REDEMPTION
SECTION 3.01. Notices to Trustee............................................... 13
SECTION 3.02. Selection of Securities to Be Redeemed........................... 14
SECTION 3.03. Notice of Redemption............................................. 14
SECTION 3.04. Effect of Notice of Redemption................................... 15
SECTION 3.05. Payment of Redemption Price...................................... 15
SECTION 3.06. Securities Redeemed in Part...................................... 16
ARTICLE 4 -- COVENANTS
SECTION 4.01. Payment of Securities............................................ 16
SECTION 4.02. Overdue Interest................................................. 16
SECTION 4.03. No Lien Created, etc............................................. 16
SECTION 4.04. Compliance Certificate........................................... 16
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
<S> <C> <C>
SECTION 4.05. SEC Reports...................................................... 17
SECTION 4.06. Costs and Expenses of EAST WEST TRUSTS........................... 17
SECTION 4.07. Statement by Officers as to Default.............................. 17
ARTICLE 5 -- SUCCESSORS
SECTION 5.01. When Company May Merge, etc...................................... 18
ARTICLE 6 -- DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default................................................ 18
SECTION 6.02. Acceleration..................................................... 20
SECTION 6.03. Other Remedies................................................... 20
SECTION 6.04. Waiver of Past Defaults.......................................... 21
SECTION 6.05. Control by Majority.............................................. 21
SECTION 6.06. Limitation on Suits.............................................. 21
SECTION 6.07. Collection Suit by Trustee....................................... 22
SECTION 6.08. Priorities....................................................... 22
ARTICLE 7 -- TRUSTEE
SECTION 7.01. Rights of Trustee................................................ 22
SECTION 7.02. Individual Rights of Trustee..................................... 24
SECTION 7.03. Trustee's Disclaimer............................................. 24
SECTION 7.04. Notice of Defaults............................................... 24
SECTION 7.05. Reports by Trustee to Holders.................................... 24
SECTION 7.06. Compensation and Indemnity....................................... 24
SECTION 7.07. Replacement of Trustee........................................... 25
SECTION 7.08. Successor Trustee by Merger, etc................................. 26
SECTION 7.09. Trustee's Capital and Surplus.................................... 26
ARTICLE 8 -- DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance....................................................... 26
SECTION 8.02. Conditions to Defeasance......................................... 27
SECTION 8.03. Application of Trust Money....................................... 28
SECTION 8.04. Repayment to Company............................................. 28
SECTION 8.05. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous Provisions................ 28
</TABLE>
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<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
ARTICLE 9 -- CONVERSION
<S> <C> <C>
SECTION 9.01. Conversion Privilege............................................. 29
SECTION 9.02. Conversion Procedure............................................. 29
SECTION 9.03. Taxes on Conversion.............................................. 30
SECTION 9.04. Company Determination Final...................................... 30
SECTION 9.05. Trustee's and Conversion Agent's Disclaimer...................... 30
SECTION 9.06. Company to Provide Conversion Securities......................... 31
SECTION 9.07. Cash Settlement Option........................................... 31
SECTION 9.08. Adjustment in Conversion Rate for Change in Capital Stock........ 32
SECTION 9.09. Adjustment in Conversion Rate for Common Stock Issued
Below Market Price........................................... 33
SECTION 9.10. Adjustment for Other Distributions............................... 35
SECTION 9.11. Voluntary Adjustment............................................. 36
SECTION 9.12. When Adjustment May Be Deferred.................................. 36
SECTION 9.13. When No Adjustment Required...................................... 36
SECTION 9.14. Notice of Adjustment............................................. 37
SECTION 9.15. Notice of Certain Transactions................................... 37
SECTION 9.16. Reorganization of the Company.................................... 37
ARTICLE 10 -- AMENDMENTS
SECTION 10.01. Without Consent of Holders....................................... 38
SECTION 10.02. With Consent of Holders.......................................... 38
SECTION 10.03. Compliance with Trust Indenture Act.............................. 39
SECTION 10.04. Effect of Consents............................................... 39
SECTION 10.05. Notation on or Exchange of Securities............................ 40
SECTION 10.06. Trustee Protected................................................ 40
ARTICLE 11 -- MISCELLANEOUS
SECTION 11.01. Trust Indenture Act.............................................. 40
SECTION 11.02. Notices.......................................................... 40
SECTION 11.03. Certificate and Opinion as to Conditions
Precedent.................................................... 42
SECTION 11.04. Statements Required in Certificate or
Opinion...................................................... 42
SECTION 11.05. Rules by Company and Agents...................................... 42
SECTION 11.06. Legal Holidays................................................... 42
SECTION 11.07. No Recourse Against Others....................................... 43
SECTION 11.08. Duplicate Originals.............................................. 43
SECTION 11.09. Governing Law.................................................... 43
</TABLE>
-iv-
<PAGE>
TABLE OF CONTENTS
Page
SIGNATURES ........................................ S-1
EXHIBIT A: A Form of Registered Security........... A-1
EXHIBIT B: A Form of Bearer Security............... B-1
Notes to Exhibits A and B..............................................
EXHIBIT C: Assignment Form......................... C-1
EXHIBIT D: Conversion Notice....................... D-1
-v-
<PAGE>
INDENTURE dated as of ___________ __, 2000 between EAST WEST BANCORP,
INC., a Delaware corporation (hereinafter called the "COMPANY"), and
________________________ (the "TRUSTEE").
Each party agrees as follows for the benefit of the Holders (as defined
below) of the Company's debt securities issued under this Indenture:
ARTICLE 1 -- DEFINITIONS
SECTION 1.01. Definitions.
"AFFILIATE" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
"AGENT" means any Registrar, Transfer Agent, Paying Agent, Conversion Agent
or other Agent appointed by the Company.
"AUTHORIZED NEWSPAPER" means a newspaper that is:
(1) printed in the English language or in an official language of the
country of publication;
(2) customarily published on each business day in the place of
publication; and
(3) of general circulation in the relevant place or in the financial
community of such place.
Whenever successive publications in an Authorized Newspaper are required,
they may be made on the same or different business days and in the same or
different Authorized Newspapers.
"BEARER SECURITY" means a Security payable to bearer.
"BOARD" means the Board of Directors of the Company or an authorized
committee of the Board.
"BUSINESS DAY" means any day other than a legal holiday.
"CAPITAL STOCK" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of any person and all
warrants or options to acquire such capital stock.
"EAST WEST TRUST" means a statutory business trust created under Delaware
law pursuant to a trust agreement executed by the Company, as depositor of such
EAST WEST TRUST, and the trustees of such EAST WEST TRUST named therein and
pursuant to a certificate of trust
<PAGE>
filed with the Delaware Secretary of State, which EAST WEST TRUST exists for the
purposes of (i) issuing and selling its trust securities, (ii) using the
proceeds from the sale of such trust securities to acquire a series of
Securities issued by the Company under this Indenture and (iii) engaging in only
those other activities necessary, convenient or incidental thereto.
"COMMON STOCK" means the Common Stock, par value $0.001 per share, of the
Company.
"COMPANY" means the party named as such above until a successor replaces it
and thereafter means the successor.
"CONVERSION RATE" means such number or amount of shares of Common Stock or
other equity or debt securities for which $1,000 aggregate principal amount of
Securities of any series is convertible, initially as stated in the Securities
Resolution authorizing the series and as adjusted pursuant to the terms of this
Indenture and the Securities Resolution.
"COUPON" means an interest coupon for a Bearer Security.
"DEFAULT" means any event which is, or after notice or passage of time, or
both, would be, an Event of Default (as defined below).
"DISCOUNTED DEBT SECURITY" means a Security where the amount of principal
due upon acceleration is less than the stated principal amount.
"HOLDER" or "SECURITYHOLDER" means the person in whose name a Registered
Security is registered and the bearer of a Bearer Security or coupon.
"INDENTURE" means this Indenture and any Securities Resolution as amended
from time to time.
"LIEN" means any mortgage, pledge, security interest or other lien.
"OFFICER" means the Chairman, any Vice-Chairman, the President, the Chief
Financial Officer, any Executive or Senior Vice President, any Vice-President,
the Treasurer or any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers of the
Company, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion from legal counsel who is
acceptable to the Trustee, and delivered to the Trustee. Unless otherwise
provided herein, the counsel may be an employee of or counsel to the Company.
2
<PAGE>
"PRINCIPAL" of a debt security means the principal of the security plus the
premium, if and when applicable, on the security.
"REGISTERED SECURITY" means a Security registered as to principal and
interest by the Registrar.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the debt securities issued under this Indenture.
"SECURITIES RESOLUTION" means a resolution adopted by the Board or by a
committee of Officers or an Officer pursuant to Board delegation authorizing a
series or a supplemental indenture authorizing a series executed by an
authorized Officer.
"SERIES" means a series of Securities or the Securities of the series.
"SUBSIDIARY" means a corporation a majority of whose Voting Stock is owned
by the Company or a Subsidiary.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code 77aaa- 77bbbb),
as amended.
"TRADING DAY" means each day on which the securities exchange or quotation
system which is used to determine the Market Price is open for trading or
quotation.
"TRUSTEE" means the party named as such above until a successor replaces it
and thereafter means the successor.
"TRUST OFFICER" shall mean, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.
"TRUST SECURITIES" means securities issued by an EAST WEST TRUST.
"UNITED STATES" means the United States of America, its territories and
possessions and other areas subject to its jurisdiction.
"VOTING STOCK" means capital stock having voting power under ordinary
circumstances to elect directors.
3
<PAGE>
"YIELD TO MATURITY" means the yield to maturity on a Security at the time
of its issuance or at the most recent determination of interest on the Security.
SECTION 1.02. Other Definitions.
<TABLE>
<CAPTION>
TERM DEFINED IN SECTION
<S> <C>
"ACTUAL KNOWLEDGE" 7.01
"BANKRUPTCY LAW" 6.01
"CONDITIONAL REDEMPTION" 3.04
"CONVERSION AGENT" 2.03
"CONVERSION DATE" 9.02
"CONVERSION NOTICE" 9.02
"CONVERSION RIGHT" 9.01
"CUSTODIAN" 6.01
"EVENT OF DEFAULT" 6.01
"LEGAL HOLIDAY" 11.06
"MARKET PRICE" 9.07
"PAYING AGENT" 2.03
"PRICE PER SHARE" 9.09
"REGISTRAR" 2.03
"TRANSFER AGENT" 2.03
"TREASURY REGULATIONS" 2.04
"U.S. GOVERNMENT OBLIGATIONS" 8.02
</TABLE>
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles
in the United States;
(3) generally accepted accounting principles are those applicable from
time to time;
(4) all terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule
under the TIA have the meanings assigned to them by such definit-
ions;
(5) "or" is not exclusive; and
(6) words in the singular include the plural, and in the plural include
the singular.
4
<PAGE>
ARTICLE 2 -- THE SECURITIES
SECTION 2.01. Issuable in Series.
The aggregate principal amount of Securities that may be issued under this
Indenture is unlimited. The Securities may be issued from time to time in one
or more series. Each series shall be created by a Securities Resolution that
establishes the terms of the series, which may include the following:
(1) the title of the series;
(2) the aggregate principal amount of the series;
(3) the interest rate or rates, if any, or method of calculating the
interest rate or rates;
(4) the date from which interest will accrue;
(5) the record dates for interest payable on Registered Securities;
(6) the dates when principal and interest are payable;
(7) the manner of paying principal and interest;
(8) the places where principal and interest are payable;
(9) the Registrar, Transfer Agent and Paying Agent;
(10) the terms of any mandatory or optional redemption by the Company
including any sinking fund;
(11) the terms of any redemption at the option of Holders;
(12) the denominations in which Securities are issuable;
(13) whether Securities will be issuable as Registered Securities,
Bearer Securities or uncertificated Securities;
(14) whether and upon what terms Registered Securities, Bearer
Securities and uncertificated Securities may be exchanged;
(15) whether any Securities will be represented by a Security in global
form;
5
<PAGE>
(16) the terms of any global Security;
(17) the terms of any tax indemnity;
(18) if amounts of principal or interest may be determined by reference
to an index, formula or other method, the manner for determining
such amounts;
(19) provisions for electronic issuance of Securities or for Securities
in uncertificated form;
(20) the portion of principal payable upon acceleration of a Discounted
Debt Security;
(21) whether any Events of Default or covenants in addition to or in
lieu of those set forth in this Indenture apply;
(22) whether and upon what terms Securities may be defeased;
(23) the forms of the Securities or any coupon, which may be in the
form of Exhibit A or B;
(24) any terms that may be required by or advisable under U.S. or other
applicable laws or regulations;
(25) whether and upon what terms the Securities will be convertible
into or exchangeable for Common Stock of the Company or other
equity or debt securities, which may include the terms provided in
Article 9;
(26) the ranking of the Securities, including the relative degree, if
any, to which the Securities of such series shall be subordinated
to one or more other series of Securities in right of payment,
whether outstanding or not;
(27) any provisions relating to extending or shortening the date on
which the principal and premium, if any, of the Securities of such
series is payable;
(28) any provisions relating to the deferral of payment of any
interest;
(29) if such Securities are to be issued to an EAST WEST TRUST, the
forms of the related trust agreement and guarantee agreement
relating ther eto;
(30) the additions or changes, if any, to this Indenture with respect
to the Securities of such series as shall be necessary to permit
or facilitate the issuance of such Securities to an EAST WEST
TRUST; and
(31) any other terms not inconsistent with this Indenture.
6
<PAGE>
All Securities of one series need not be issued at the same time and,
unless otherwise provided, a series may be reopened for issuances of additional
Securities of such series.
Unless otherwise stated herein or in the applicable Securities Resolutions,
the creation and issuance of a series and the authentication and delivery
thereof are not subject to any conditions precedent.
SECTION 2.02. Execution and Authentication.
Two Officers shall sign the Securities by manual or facsimile signature.
The Company's seal shall be reproduced on the Securities. An Officer shall sign
any coupons by facsimile signature.
If an Officer whose signature is on a Security or its coupons no longer
holds that office at the time the Security is authenticated or delivered, the
Security and coupons shall nevertheless be valid.
A Security and its coupons shall not be valid until the Security is
authenticated by the manual signature of the Trustee. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security shall be dated the date of its original issuance or as
provided in the Securities Resolution.
Securities may have notations, legends or endorsements required by law,
stock exchange rule, agreement or usage.
In the event Securities are issued in electronic or other uncertificated
form, such Securities may be validly issued without the signatures or seal
contemplated by this Section 2.02.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication. Except as otherwise provided in this
Article Two, the Trustee shall thereupon authenticate and make available for
delivery said Securities to or upon the written order of the Company. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and shall be fully protected in relying upon:
(a) a copy of the Securities Resolution pursuant to which the terms
and form of the Securities were established;
(b) an executed supplemental indenture, if any;
(c) an Officers' Certificate delivered in accordance with Section
11.03; and
7
<PAGE>
(d) an Opinion of Counsel from outside counsel knowledgeable in such
matters which shall state:
(1) that the form of such Securities has been established by a
supplemental indenture or by or pursuant to a Securities
Resolution in accordance with Sections 2.01 and 2.02 and in
conformity with the provisions of this Indenture;
(2) that the terms of such Securities have been established in
accordance with Section 2.01 and in conformity with the other
provisions of this Indenture;
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject
to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the
enforcement of creditors' rights and to general equity
principles; and
(4) that all laws and requirements in respect of the execution
and delivery by the Company of such Securities have been
complied with.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in good
faith shall determine that such action would expose the Trustee to personal
liability to existing Holders.
SECTION 2.03. Registrar and Transfer, Paying and Conversion Agents and Other
Agents.
The Company shall maintain an office or agency where Securities may be
authenticated, where Securities may be presented for registration of transfer or
for exchange ("TRANSFER AGENT"), where Securities may be presented for payment
("PAYING AGENT") and where Securities may be presented for conversion
("CONVERSION AGENT"). Whenever the Company must issue or deliver Securities
pursuant to this Indenture, the Trustee shall authenticate the Securities at the
Company's written request. The Transfer Agent shall keep a register of the
Securities and of their transfer and exchange.
The Company may appoint more than one Transfer Agent, Paying Agent or
Conversion Agent or other Agent for a series. The Company shall notify the
Trustee of the name and address of any Agent not a party to this Indenture. If
the Company does not appoint or maintain a Transfer Agent, Paying Agent or
Conversion Agent for a series, the Trustee shall act as such.
8
<PAGE>
SECTION 2.04. Bearer Securities.
U.S. laws and Treasury Regulations restrict sales or exchanges of and
payments on Bearer Securities. Therefore, except as provided below:
(1) Bearer Securities will be offered, sold or delivered only outside
the United States and will be delivered in connection with their
original issuance only upon presentation of a certificate in a form
prescribed by the Company to comply with U.S. laws and regulations.
(2) Bearer Securities will not be issued in exchange for Registered
Securities.
(3) All payments of principal and interest (including original issue
discount) on Bearer Securities will be made outside the United
States by a Paying Agent located outside the United States unless
the Company determines that:
(A) such payments may not be made by such Paying Agent because the
payments are illegal or prevented by exchange controls as
described in Treasury Regulation 1.163-5(c)(2)(v); and
(B) making the payments in the United States would not have an
adverse tax effect on the Company.
If there is a change in the relevant provisions of U.S. laws or Treasury
Regulations or the judicial or administrative interpretation thereof, a
restriction set forth in paragraph (1), (2) or (3) above will not apply to a
series if the Company determines that the relevant provisions no longer apply to
the series or that failure to comply with the relevant provisions would not have
an adverse tax effect on the Company or on Securityholders or cause the series
to be treated as "registration-required" obligations under U.S. law.
The Company shall notify the Trustee of any determinations by the Company
under this Section.
"TREASURY REGULATIONS" means regulations of the U.S. Treasury Department
under the Internal Revenue Code of 1986, as amended.
SECTION 2.05. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent for a series other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of the persons entitled thereto all money held by the Paying Agent for
the payment of principal of or interest on the series, and will notify the
Trustee of any default by the Company in making any such payment.
9
<PAGE>
While any such default continues, the Trustee may require a Paying Agent to
pay all money so held by it to the Trustee. The Company at any time may require
a Paying Agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent shall have no further liability for the money.
If the Company or an Affiliate acts as Paying Agent for a series, it shall
segregate and hold as a separate trust fund all money held by it as Paying Agent
for the series.
The Company may elect not to exchange or register the transfer of any
Security for a period of 15 days before a selection of Securities to be
redeemed.
SECTION 2.06. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Transfer Agent, the Company shall
furnish to the Trustee semiannually and at such other times as the Trustee may
request a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders of Registered Securities and
Holders of Bearer Securities whose names are on the list referred to below.
The Transfer Agent shall keep a list of the names and addresses of Holders
of Bearer Securities who file a request to be included on such list. A request
will remain in effect for two years but successive requests may be made.
Whenever the Company or the Trustee is required to mail a notice to all
Holders of Registered Securities of a series, it also shall mail the notice to
Holders of Bearer Securities of the series whose names are on the list.
Whenever the Company is required to publish a notice to all Holders of
Bearer Securities of a series, it also shall mail the notice to such of them
whose names are on the list.
SECTION 2.07. Transfer and Exchange.
Where Registered Securities of a series are presented to the Transfer Agent
with a request to register a transfer or to exchange them for an equal principal
amount of Registered Securities of other denominations of the same series, the
Transfer Agent shall register the transfer or make the exchange if its
requirements for such transactions are met. Where Bearer Securities of a series
are presented to the Transfer Agent with a request to exchange them for an equal
principal amount of Bearer Securities of other denominations of the same series,
the Transfer Agent shall make the exchange if its requirements for such
transactions are met.
The Transfer Agent may require a Holder to pay a sum sufficient to cover
any taxes imposed on a transfer or exchange.
10
<PAGE>
If a series provides for Registered and Bearer Securities and for their
exchange, Bearer Securities may be exchanged for Registered Securities and
Registered Securities may be exchanged for Bearer Securities as provided in the
Securities or the Securities Resolution if the requirements of the Transfer
Agent for such transactions are met and in the case of the exchange of
registered securities for bearer securities if Section 2.04 permits the
exchange.
SECTION 2.08. Replacement Securities.
If the Holder of a Security or coupon claims that it has been lost,
destroyed or wrongfully taken, then, in the absence of notice to the Company or
the Trustee that the Security or coupon has been acquired by a bona fide
purchaser, the Company shall issue a replacement Security or coupon if the
Company and the Trustee receive:
(1) evidence satisfactory to them of the loss, destruction or taking;
(2) an indemnity bond satisfactory to them; and
(3) payment of a sum sufficient to cover their expenses and any taxes
for replacing the Security or coupon.
A replacement Security shall have coupons attached corresponding to those, if
any, on the replaced Security.
Every replacement Security or coupon is an additional obligation of the
Company.
SECTION 2.09. Outstanding Securities.
The Securities outstanding at any time are all the Securities authenticated
by the Trustee except for those cancelled by it, those delivered to it for
cancellation, and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they cease to be
outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
11
<PAGE>
SECTION 2.10. Discounted Debt Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, the principal
amount of a Discounted Debt Security shall be the amount of principal that would
be due as of the date of such determination if payment of the Security were
accelerated on that date.
SECTION 2.11. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or an Affiliate shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities which a Trust Officer of the
Trustee actually knows are so owned shall be so disregarded.
SECTION 2.12. Global Securities.
If the Securities Resolution so provides, the Company may issue some or all
of the Securities of a series in temporary or permanent global form. A global
Security may be in registered form, in bearer form with or without coupons or in
uncertificated form. A global Security shall represent that amount of
Securities of a series as specified in the global Security or as endorsed
thereon from time to time. At the Company's request, the Transfer Agent shall
endorse a global Security to reflect the amount of any increase or decrease in
the Securities represented thereby.
The Company may issue a global Security only to a depository designated by
the Company. A depository may transfer a global Security only as a whole to its
nominee or to a successor depository.
The Securities Resolution may establish, among other things, the manner of
paying principal and interest on a global Security and whether and upon what
terms a beneficial owner of an interest in a global Security may exchange such
interest for definitive Securities.
The Company, an Affiliate, the Trustee and any Agent shall not be
responsible for any acts or omissions of a depository, for any depository
records of beneficial ownership interests or for any transactions between the
depository and beneficial owners.
SECTION 2.13. Temporary Securities.
Until definitive Securities of a series are ready for delivery, the Company
may use temporary Securities. Temporary Securities shall be substantially in
the form of definitive
Securities but may have variations that the Company considers appropriate for
temporary Securities. Temporary Securities may be in global form. Temporary
Bearer Securities may have one or more coupons or no coupons. Without
unreasonable delay, the Company shall deliver definitive Securities in exchange
for temporary Securities.
12
<PAGE>
SECTION 2.14. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Transfer Agent and the Paying Agent shall forward to the
Trustee any Securities and coupons surrendered to them for payment, exchange or
registration of transfer. The Trustee shall cancel all Securities or coupons
surrendered for payment, registration of transfer, exchange or cancellation. The
Trustee also will cancel all Bearer Securities and unmatured coupons unless the
Company requests the Trustee to hold the same for redelivery. Any Bearer
Securities so held shall be considered delivered for cancellation under Section
2.09.
Unless the Securities Resolution otherwise provides, the Company may not
issue new Securities to replace Securities that the Company has paid or that the
Company has delivered to the Trustee for cancellation.
SECTION 2.15. Defaulted Interest.
If the Company defaults in a payment of interest on Registered Securities,
it need not pay the defaulted interest to Holders on the regular record date.
The Company may fix a special record date for determining Holders entitled to
receive defaulted interest, or the Company may pay defaulted interest in any
other lawful manner.
SECTION 2.16. CUSIP Numbers.
The Company in issuing the Securities 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 Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE 3 -- REDEMPTION
SECTION 3.01. Notices to Trustee.
Securities of a series that are redeemable before maturity shall be
redeemable in accordance with their terms and, unless the Securities Resolution
otherwise provides, in accordance with this Article.
In the case of a redemption by the Company, the Company shall notify the
Trustee of the redemption date and the principal amount of Securities to be
redeemed. The Company shall notify the Trustee at least 45 days before the
redemption date unless a shorter notice is satisfactory to the Trustee.
13
<PAGE>
If the Company is required to redeem Securities, it may reduce the
principal amount of Securities required to be redeemed to the extent that it is
permitted a credit against such redemption requirement by the terms of the
Securities Resolution and notifies the Trustee of the amount of such credit and
the basis for it. If the reduction is based on a credit for acquired or
redeemed Securities that the Company has not previously delivered to the Trustee
for cancellation, the Company shall deliver the Securities at the same time as
the notice.
SECTION 3.02. Selection of Securities to Be Redeemed.
If less than all the Securities of a series are to be redeemed, the Trustee
shall select the Securities to be redeemed by a method the Trustee considers
fair and appropriate. The Trustee shall make the selection from Securities of
the series outstanding not previously called for redemption. The Trustee may
select for redemption portions of the principal of Securities having
denominations larger than the minimum denomination for the series. Securities
and portions thereof selected for redemption shall be in amounts equal to the
minimum denomination for the series or an integral multiple thereof. Provisions
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 but not more than 60 days before a redemption date, the Company
shall mail a notice of redemption by first-class mail to each Holder of
Registered Securities whose Securities are to be redeemed.
If Bearer Securities are to be redeemed, the Company shall publish a notice
of redemption in an Authorized Newspaper as provided in the Securities.
A notice shall identify the Securities of the series (including CUSIP
number) to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption, together with all coupons,
if any, maturing after the redemption date, must be surrendered to
the Paying Agent to collect the redemption price;
(5) that interest on Securities called for redemption ceases to accrue
on and after the redemption date;
(6) whether the redemption by the Company is mandatory or optional;
and
14
<PAGE>
(7) whether the redemption is conditional as provided in Section 3.04,
and if so, the terms of the conditions, and that, if the
conditions are not satisfied or are not waived by the Company, the
Securities will not be redeemed and such a failure to redeem will
not constitute an Event of Default.
A redemption notice given by publication need not identify Registered
Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense.
SECTION 3.04. Effect of Notice of Redemption.
Except as provided below, once notice of redemption is given, Securities
called for redemption become due and payable on the redemption date at the
redemption price stated in the notice.
A notice of redemption may provide that it is subject to the occurrence of
any event before the date fixed for such redemption as described in such notice
("CONDITIONAL REDEMPTION"), and such notice of Conditional Redemption shall be
of no effect unless all such conditions to the redemption have occurred on or
before such date or have been waived by the Company in its sole discretion.
SECTION 3.05. Payment of Redemption Price.
Prior to 10:00 a.m., New York City time, on the redemption date, the
Company shall deposit with the Paying Agent money sufficient to pay the
redemption price of and accrued interest on all Securities to be redeemed on
that date.
When the Holder of a Security surrenders it for redemption in accordance
with the redemption notice, the Company shall pay to the Holder on the
redemption date the redemption price and accrued interest to such date, except
that:
(1) the Company will pay any such interest (except defaulted interest)
to Holders on the record date of Registered Securities if the
redemption date occurs on an interest payment date; and
(2) the Company will pay any such interest to Holders of coupons that
mature on or before the redemption date upon surrender of such
coupons to the Paying Agent.
Coupons maturing after the redemption date on a called Security are void
absent a payment default on that date. Nevertheless, if a Holder surrenders for
redemption a Bearer Security missing any such coupons, the Company may deduct
the face amount of such coupons from the redemption price. If thereafter the
Holder surrenders to the Paying Agent the missing coupons, the Company will
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return the amount so deducted. The Company may waive surrender of the missing
coupons if it receives an indemnity bond satisfactory to the Company.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company shall
deliver to the Holder a new Security of the same series equal in principal
amount to the unredeemed portion of the Security surrendered.
ARTICLE 4 -- COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on a series in
accordance with the terms of the Securities for the series, any related coupons,
and this Indenture. Principal and interest on a series shall be considered paid
on the date due if the Paying Agent for the series holds, prior to 10:00 a.m.,
New York City time, on that date money sufficient to pay all principal and
interest then due on the series.
SECTION 4.02. Overdue Interest.
Unless the Securities Resolution otherwise provides, the Company shall pay
interest on overdue principal of a Security of a series at the rate (or Yield to
Maturity in the case of a Discounted Debt Security) borne by the series; the
Company shall pay interest on overdue installments of interest at the same rate
or Yield to Maturity to the extent lawful.
SECTION 4.03. No Lien Created, etc.
This Indenture and the Securities do not create a Lien, charge or
encumbrance on any property of the Company or any Subsidiary.
SECTION 4.04. Compliance Certificate.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company, a brief certificate signed by the principal
executive officer, principal financial officer or principal accounting officer
of the Company, as to the signer's knowledge of the Company's compliance with
all conditions and covenants under this Indenture (determined without regard to
any period of grace or requirement of notice provided herein) and if the Company
shall not be in compliance, specifying such non-compliance and the nature and
status thereof.
Any other obligor on the Securities shall also deliver to the Trustee such
a certificate as to its compliance with this Indenture within 120 days after the
end of each of its fiscal years.
The certificates need not comply with Section 11.04.
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SECTION 4.05. SEC Reports.
The Company shall file with the Trustee, within 15 days after the Company
is required to file the same with the SEC, copies of the annual reports and of
the information, documents, and other reports (or such portions of the foregoing
as the SEC may prescribe) which the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
Any other obligor on the Securities shall do likewise as to the above items
which it is required to file with the SEC pursuant to those sections.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.06. Costs and Expenses of EAST WEST TRUSTS.
The Company shall pay all debts and obligations (other than with respect to
the Trust Securities) and all costs and expenses of any EAST WEST TRUST
(including, but not limited to, all costs and expenses relating to the
organization of the applicable EAST WEST TRUST, the fees and expenses of any
trustee or trustees for the EAST WEST TRUST and all costs and expenses relating
to the operation of the applicable EAST WEST TRUST (other than with respect to
the Trust Securities)) and to pay any and all taxes, duties, assessments or
other governmental charges of whatever nature (other than United States
withholding taxes) imposed by the United States or any other taxing authority,
so that the net amounts received and retained by the applicable EAST WEST TRUST
after paying such fees, expenses, debts and obligations will be equal to the
amounts the applicable EAST WEST TRUST would have received and retained had no
such fees, expenses, debts and obligations been incurred by or imposed on the
applicable EAST WEST TRUST.
SECTION 4.07. Statement by Officers as to Default or Event of Default.
The Company shall deliver to the Trustee, as soon as possible and in any
event within five days after the Company becomes aware of the occurrence of any
Event of Default or Default, an Officers' Certificate setting forth the details
of such Event of Default or Default and the action which the Company has taken
or proposes to take with respect thereto.
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ARTICLE 5 -- SUCCESSORS
SECTION 5.01. When Company May Merge, etc.
Unless the Securities Resolution establishing a Series otherwise provides,
the Company shall not consolidate with or merge into any person in any
transaction in which the Company is not the survivor, or transfer all or
substantially all of its assets to any person, unless:
(1) the person is organized under the laws of the United States or a
State thereof or is organized under the laws of a foreign
jurisdiction and consents to the jurisdiction of the courts of the
United States or a State thereof;
(2) the person assumes by supplemental indenture all the obligations of
the Company under this Indenture, the Securities and any coupons;
(3) all required approvals of any regulatory body having jurisdiction
over the transaction shall have been obtained;
(4) immediately after the transaction no Default exists; and
(5) the Company provides an Officers' Certificate and an Opinion of
Counsel from outside counsel knowledgeable in such matters to the
effect that all the provisions in this Section 5.01 have been
complied with.
The successor shall be substituted for the Company, and thereafter all
obligations of the Company under this Indenture, the Securities and any coupons
shall terminate.
ARTICLE 6 -- DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
Unless the Securities Resolution otherwise provides, an "EVENT OF DEFAULT"
on a series occurs if:
(1) the Company defaults in any payment of interest on any Securities
of the series when the same becomes due and payable and the Default
continues for a period of 30 days;
(2) the Company defaults in the payment of the principal and premium,
if any, of any Securities of the series when the same becomes due
and payable at maturity or upon redemption, acceleration or
otherwise;
(3) the Company defaults in the payment or satisfaction of any sinking
fund obligation with respect to any Securities of the series as
required by the Securities
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Resolution establishing such series and the Default continues for a
period of 30 days;
(4) the Company defaults in the performance of any of its other
agreements applicable to the series and the Default continues for
60 days after the notice specified below;
(5) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian for it or for all or
substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case,
(B) appoints a Custodian for the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company;
and the order or decree remains unstayed and in effect for 60 days;
or
(7) there occurs any other Event of Default provided for in the series.
The term "BANKRUPTCY LAW" means Title 11, U.S. Code or any similar Federal
or State law for the relief of debtors. The term "CUSTODIAN" means any
receiver, trustee, assignee, liquidator or a similar official under any
Bankruptcy Law.
A Default under clause (4) is not an Event of Default until the Trustee or
the Holders of at least 25% in principal amount of the series notify the Company
of the Default and the Company does not cure the Default within the time
specified after receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a "Notice of Default."
If Holders notify the Company of a Default, they shall notify the Trustee at the
same time.
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The failure to redeem any Security subject to a Conditional Redemption is
not an Event of Default if any event on which such redemption is so conditioned
does not occur and is not waived before the scheduled redemption date.
SECTION 6.02. Acceleration.
If an Event of Default occurs and is continuing on a series, the Trustee by
notice to the Company, or the Holders of at least 25% in principal amount of the
series (or, in the case of a series issued to an EAST WEST TRUST, so long as any
of the related preferred securities of such EAST WEST TRUST remain outstanding,
if, upon such Event of Default, the Trustee or the Holders of not less than 25%
in aggregate principal amount of such series fail to declare the principal of
all the Securities of such series to be so immediately due and payable, the
holders of 25% in aggregate liquidation amount of such preferred securities then
outstanding shall have such right) by notice to the Company and the Trustee, may
declare the principal of and accrued interest on all the Securities of the
series to be due and payable immediately. Discounted Debt Securities may
provide that the amount of principal due upon acceleration is less than the
stated principal amount.
The Holders of a majority in principal amount of the series by notice to
the Trustee may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default on the series have been cured or waived except nonpayment of principal
or interest that has become due solely because of the acceleration; provided,
that in the case of a series issued to an EAST WEST TRUST, so long as any of the
related preferred securities of such EAST WEST TRUST remain outstanding, the
holders of a majority in aggregate liquidation amount of such preferred
securities then outstanding shall instead have such right to rescind the of
acceleration and its consequences with respect to such series, subject to the
same conditions set forth above.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing on a series, the Trustee
may pursue any available remedy to collect principal or interest then due on the
series, to enforce the performance of any provision applicable to the series, or
otherwise to protect the rights of the Trustee and Holders of the series.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or coupons or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
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SECTION 6.04. Waiver of Past Defaults.
Unless the Securities Resolution otherwise provides, the Holders of a
majority in principal amount of a series (or, in the case of a series issued to
an EAST WEST TRUST, so long as any of the related preferred securities of such
EAST WEST TRUST remain outstanding, the holders of a majority in aggregate
liquidation amount of such preferred securities then outstanding) by notice to
the Trustee may waive an existing Default on the series and its consequences
except:
(1) a Default in the payment of the principal of or interest on the
series, or
(2) a Default in respect of a provision that under Section 10.02 cannot
be amended without the consent of each Securityholder affected.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of a series may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or of exercising any trust or power conferred on the Trustee, with
respect to such series. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture or if the Trustee in good faith shall
determine that the action or direction might involve the Trustee in personal
liability.
SECTION 6.06. Limitation on Suits.
A Securityholder of a series may pursue a remedy with respect to the series
only if:
(1) the Holder gives to the Trustee notice of a continuing Event of
Default on the series;
(2) the Holders of at least 25% in principal amount of the series make
a request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in principal
amount of the series do not give the Trustee a direction
inconsistent with such request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
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In the case of a series issued to an EAST WEST TRUST, any holder of the
related preferred securities of such EAST WEST TRUST shall have the right, upon
the occurrence and continuance of an Event of Default described in Sections
6.01(1) and (2) hereof with respect to such series, to institute a suit directly
against the Company to enforce payment to such holder of the principal of, and
premium, if any, and interest on, the Securities having a principal amount equal
to the aggregate liquidation amount of such preferred securities held by such
holder.
SECTION 6.07. Collection Suit by Trustee.
If an Event of Default in payment of interest, principal or sinking fund
specified in Section 6.01(1), (2) or (3) occurs and is continuing on a series,
the Trustee may recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount of principal and interest
remaining unpaid on the series.
SECTION 6.08. Priorities.
If the Trustee collects any money for a series pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.06;
Second: to Securityholders of the series for amounts due and unpaid for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable for principal and interest,
respectively; and
Third: to the Company.
The Trustee may fix a payment date for any payment to Securityholders.
ARTICLE 7 -- TRUSTEE
SECTION 7.01. Rights of Trustee.
(1) The Trustee may conclusively rely on any document believed by it to
be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated
in the document.
(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good
faith in reliance on the Certificate or Opinion of Counsel.
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(3) The Trustee may act through agents or attorneys and shall not be
responsible for the misconduct or negligence of any agent
appointed with due care.
(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith in accordance with a direction received by
it pursuant to Section 6.05.
(5) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(6) The Trustee shall have no duty with respect to a Default unless a
Trust Officer has actual knowledge of the Default. As used herein,
the term "actual knowledge" means the actual fact or statement of
knowing, without any duty to make any investigation with regard
thereto.
(7) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized and
within its powers.
(8) Any Agent shall have the same rights and be protected to the same
extent as if it were Trustee.
(9) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(10) 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.
(11) The Trustee may consult with counsel of its selection and shall
not be held liable in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance on the
advice of such counsel or any Opinion of Counsel from such
counsel.
(12) 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 that it
reasonably believes may expose it to any loss, liability or
expense, unless such Holders shall have offered to the Trustee
security or indemnity satisfactory to the Trustee against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
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SECTION 7.02. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities or coupons and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights.
SECTION 7.03. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities or any coupons; it shall not be accountable for the
Company's use of the proceeds from the Securities; it shall not be responsible
for any statement in the Securities or any coupons; it shall not be responsible
for any overissue; it shall not be responsible for determining whether the form
and terms of any Securities or coupons were established in conformity with this
Indenture; it shall not be responsible for determining whether any Securities
were issued in accordance with this Indenture; and it shall not be responsible
for the acts or omissions of any other Trustees appointed hereunder.
SECTION 7.04. Notice of Defaults.
If a Default occurs and is continuing on a series and if the Trustee has
actual knowledge of such Default, the Trustee shall mail a notice of the Default
within 90 days after it occurs to Holders of Registered Securities of the
series. Except in the case of a Default in payment on a series, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interest of Holders of
the series. The Trustee shall withhold notice of a Default described in Section
6.01(4) until at least 60 days after it occurs.
SECTION 7.05. Reports by Trustee to Holders.
Any report required by TIA Section 313(a) to be mailed to Securityholders
shall be mailed by the Trustee on or before May 15th of each year.
A copy of each report at the time of its mailing to Securityholders shall
be filed with the SEC and each stock exchange on which any Securities are
listed. The Company shall notify the Trustee when any Securities are listed on
a stock exchange.
SECTION 7.06. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services as the Trustee and the Company shall from time to
time agree in writing. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all expenses incurred by it. Such
expenses shall include the reasonable compensation and expenses of the Trustee's
agents and counsel.
The Company shall indemnify each of the Trustee or any predecessor Trustee
and their agents for, and to hold them harmless against, any and all loss,
damage, claims, liability or expense,
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including taxes (other than taxes based upon, measured by or determined by the
income of the Trustee), arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim (whether asserted by the Company,
or any Holder or any other Person) or liability in connection with the exercise
or performance of any of its powers or duties hereunder, except to the extent
that such loss, damage, claim, liability or expense is due to its own negligence
or bad faith. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent.
The Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through its own negligence or willful
misconduct.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities and any coupons on all money or
property held or collected by the Trustee, except that held in trust to pay
principal or interest on particular securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(5) or (6) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section shall survive any termination or discharge
of this Indenture (including without limitation any termination under any
Bankruptcy Law) and the resignation or removal of the Trustee.
SECTION 7.07. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Securities may remove the Trustee by so
notifying the Trustee and may appoint a successor Trustee with the Company's
consent.
The Company may remove the Trustee if:
(1) the Trustee fails to comply with TIA Section 310(a) or Section
310(b) or with Section 7.09;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a Custodian or other public officer takes charge of the Trustee or
its property;
(4) the Trustee becomes incapable of acting; or
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(5) an event of the kind described in Section 6.01(5) or (6) occurs
with respect to the Trustee.
The Company also may remove the Trustee with or without cause if the
Company so notifies the Trustee three months in advance and if no Default occurs
during the three-month period.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the Securities may petition, at the
expense of the Company, any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with TIA Section 310(a) or Section 310(b) or
with Section 7.09, any Securityholder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee .
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders of Registered Securities. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.06.
SECTION 7.08. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.
SECTION 7.09. Trustee's Capital and Surplus.
The Trustee at all times shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published report of financial
condition.
ARTICLE 8 -- DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance.
Securities of a series may be defeased in accordance with their terms and,
unless the Securities Resolution otherwise provides, in accordance with this
Article.
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The Company at any time may terminate as to a series all of its obligations
under this Indenture, the Securities of the series ("legal defeasance option").
The Company at any time may terminate as to a series its obligations, if any,
under any restrictive covenants which may be applicable to a particular series
("covenant defeasance option"). However, in the case of the legal defeasance
option, the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07,
2.08, 7.06, 7.07 and 8.04 shall survive until the Securities of the series are
no longer outstanding; thereafter the Company's obligations in Section 7.06
shall survive.
The Company may exercise its legal defeasance option notwithstanding its
prior exercise of its covenant defeasance option. If the Company exercises its
legal defeasance option, a series may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option, a series may
not be accelerated by reference to any restrictive covenants as to which the
covenant defeasance option applicable to such series has been so exercised.
The Trustee upon request shall acknowledge in writing the discharge of
those obligations or restrictions that the Company terminates by defeasance.
SECTION 8.02. Conditions to Defeasance.
The Company may exercise as to a series its legal defeasance option or its
covenant defeasance option if:
(1) the Company irrevocably deposits in trust with the Trustee or
another trustee money or U.S. Government Obligations;
(2) the Company delivers to the Trustee a certificate from a nationally
recognized firm of independent accountants expressing their opinion
that the payments of principal and interest when due on the
deposited U.S. Government Obligations without reinvestment plus any
deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay principal and
interest when due on all the Securities of the series to maturity
or redemption, as the case may be;
(3) immediately after the deposit no Default exists;
(4) the deposit does not constitute a default under any other agreement
binding on the Company;
(5) the deposit does not cause the Trustee to have a conflicting
interest under TIA Section 310(a) or Section 310(b) as to another
series;
(6) the Company delivers to the Trustee an Opinion of Counsel from
outside counsel knowledgeable in such matters to the effect that
Holders of the series will not
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recognize income, gain or loss for Federal income tax purposes as a
result of the defeasance;
(7) 91 days pass after the deposit is made and during the 91-day period
no Default specified in Section 6.01(5) or (6) occurs that is
continuing at the end of the period; and
(8) the Company provides an Officers' Certificate and an Opinion of
Counsel from outside counsel knowledgeable in such matters to the
effect that all conditions precedent pursuant to this Section 8.02
have been satisfied.
Before or after a deposit the Company may make arrangements satisfactory to
the Trustee for the redemption of Securities at a future date in accordance with
Article 3.
"U.S. GOVERNMENT OBLIGATIONS" means direct obligations of (i) the United
States or (ii) an agency or instrumentality of the United States, the payment of
which is unconditionally guaranteed by the United States, which, in either case,
have the full faith and credit of the United States pledged for payment and
which are not callable at the issuer's option, or certificates representing an
ownership interest in such obligations.
SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.02. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal and interest on
Securities of the defeased series.
SECTION 8.04. Repayment to Company.
The Trustee and the Paying Agent shall promptly turn over to the Company
upon request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal or interest that
remains unclaimed for two years. After payment to the Company, Securityholders
entitled to the money must look to the Company for payment as unsecured general
creditors unless an abandoned property law designates another person.
SECTION 8.05. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S.Government Obligations
deposited pursuant to Section 8.02 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of outstanding Securities.
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ARTICLE 9 -- CONVERSION
SECTION 9.01. Conversion Privilege.
If the Securities Resolution establishing the terms of a series of
securities so provides, Securities of any series may be convertible at the
option of the holders into or for Common Stock or other equity or debt
securities (a "CONVERSION RIGHT"). The Securities Resolution may establish,
among other things, the Conversion Rate, provisions for adjustments to the
Conversion Rate and limitations upon exercise of the Conversion Right.
Unless the Securities Resolution otherwise provides, a Holder may convert a
portion of a Security if the portion is $1,000 or an integral multiples thereof.
Provisions of this Indenture that apply to the conversion of the aggregate
principal amount of a Security also apply to conversion of a portion of it.
The Securities Resolution providing for Securities with a Conversion Right
may establish any terms in addition to, or other than (including terms
inconsistent with), those set forth in this Article 9 with respect to the
conversion of the Securities established thereby (other than those of Section
9.16).
SECTION 9.02. Conversion Procedure.
To convert a Security a Holder must satisfy all requirements in the
Securities or the Securities Resolution and (i) complete and manually sign the
conversion notice (the "CONVERSION NOTICE") provided for in the Securities
Resolution or the Security (or complete and manually sign a facsimile thereof)
and deliver such notice to the Conversion Agent or any other office or agency
maintained for such purpose, (ii) surrender the Security to the Conversion Agent
or at such other office or agency by physical delivery, (iii) if required,
furnish appropriate endorsements and transfer documents, and (iv) if required,
pay all transfer or similar taxes. The date on which such notice shall have
been received by and the Security shall have been so surrendered to the
Conversion Agent is the "CONVERSION DATE." Such Conversion Notice shall be
irrevocable and may not be withdrawn by a Holder for any reason.
The Company will complete settlement of any conversion of Securities not
later than the fifth Business Day following the Conversion Date in respect of
the cash portion elected to be delivered in lieu of the securities into which
the Security is convertible and not later than the seventh business day
following the Conversion Date in respect of the portion to be settled in such
securities.
If any Security is converted between the record date for the payment of
interest and the next succeeding interest payment date, such Security must be
accompanied by funds equal to the interest payable on such succeeding interest
payment date on the principal amount so converted (unless such Security shall
have been called for redemption during such period, in which case no such
payment shall be required). A Security converted on an interest payment date
need not be accompanied by any payment, and the interest on the principal amount
of the Security being converted will be paid
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<PAGE>
on such interest payment date to the registered holder of such Security on the
immediately preceding record date. Subject to the aforesaid right of the
registered holder to receive interest, no payment or adjustment will be made on
conversion for interest accrued on the converted Security or for interest,
dividends or other distributions payable on any security issued on conversion.
If a Holder converts more than one Security at the same time, the
securities into which the Security is convertible issuable or cash payable upon
the conversion shall be based on the total principal amount of the Securities
converted.
Upon surrender of a Security that is converted in part the Trustee shall
authenticate for the Holder a new Security equal in principal amount to the
unconverted portion of the Security surrendered; except that if a global
Security is so surrendered the Trustee shall authenticate and, if applicable,
deliver to the depository a new global Security in a denomination equal to and
in exchange for the unconverted portion of the principal of the global Security
so surrendered.
If the last day on which a Security may be converted is a Legal Holiday in
a place where a Conversion Agent is located, the Security may be surrendered to
that Conversion Agent on the next succeeding day that is not a Legal Holiday.
SECTION 9.03. Taxes on Conversion.
If a Holder of a Security exercises a Conversion Right, the Company shall
pay any documentary, stamp or similar issue or transfer tax due on the issue of
the securities into which the Security is convertible upon the conversion.
However, the Holder shall pay any such tax which is due because securities or
other property are issued in a name other than the Holder's name. Nothing herein
shall preclude any income tax or other withholding required by law or
regulations.
SECTION 9.04. Company Determination Final.
Any determination that the Board of Directors makes pursuant to this
Article 9 or consistent with terms provided for in any Securities Resolution is
conclusive, absent manifest error.
SECTION 9.05. Trustee's and Conversion Agent's Disclaimer.
The Trustee (and each Conversion Agent other than the Company) has no duty
to determine when or if an adjustment under this Article 9 or any Securities
Resolution should be made, how it should be made or calculated or what it should
be. The Trustee (and each Conversion Agent other than the Company) makes no
representation as to the validity or value of any securities issued upon
conversion of Securities. The Trustee (and each Conversion Agent other than the
Company) shall not be responsible for the Company's failure to comply with this
Article 9 or any provision of a Securities Resolution relating to a Conversion
Right.
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<PAGE>
SECTION 9.06. Company to Provide Conversion Securities.
The Company shall reserve out of its authorized but unissued Common Stock
or its Common Stock held in treasury sufficient shares to permit the conversion
of all of the Securities convertible into Common Stock. The Company shall
arrange and make available for issuance upon conversion the full amount of any
other securities into which the Securities are convertible to permit such
conversion of the Securities.
All shares of Common Stock or other equity securities of any person which
may be issued upon conversion of the Securities shall be validly issued, fully
paid and non-assessable.
The Company will comply with all securities laws regulating the offer and
delivery of securities upon conversion of Securities.
SECTION 9.07. Cash Settlement Option.
If the Securities Resolution so provides, the Company may elect to satisfy,
in whole or in part, a Conversion Right of Securities convertible into Common
Stock or other securities of any person by the delivery of cash. The amount of
cash to be delivered shall be equal to the Market Price on the last Trading Day
preceding the applicable Conversion Date of a share of Common Stock or other
securities of any person into which the Securities are convertible multiplied by
the number of shares of Common Stock or the number of shares or principal amount
of other securities into which the Securities are convertible, respectively, in
respect of which the Company elects to deliver cash. If the Company elects to
satisfy, in whole or in part, a Conversion Right by the delivery of shares of
Common Stock or other securities, no fractional shares or portion of other
securities will be delivered. Instead, the Company will pay cash based on the
Market Price for such fractional share of Common Stock or portion of other
securities.
The "MARKET PRICE" of the Common Stock into which Securities or other
equity securities into which the Securities are convertible may be converted
pursuant to a Securities Resolution or this Article 9 on any Trading Day means
the weighted average per share sale price for all sales of the Common Stock or
other equity securities on such Trading Day (or, if the information necessary to
calculate such weighted average per share sale price is not reported, the
average of the high and low sale prices, or if no sales are reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and average ask prices), as reported in the composite
transactions for the New York Stock Exchange, or if the Common Stock or other
equity securities into which the Securities are convertible are not listed or
admitted to trading on such exchange, as reported in the composite transactions
for the principal national or regional United States securities exchange on
which the Common Stock or other equity securities into which the Securities are
convertible are listed or admitted to trading or, if the Common Stock or other
equity securities into which the Securities are convertible are not listed or
admitted to trading on a United States national or regional securities exchange,
as reported by Nasdaq or by the National Quotation
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Bureau Incorporated, or if not so reported, as determined in the manner set
forth in the appropriate Securities Resolution. In the absence of such
quotations, the Company shall be entitled to determine the Market Price on the
basis of such quotations as it considers appropriate.
The "MARKET PRICE" of any debt security into which Securities are
convertible shall be determined as set forth in the applicable Securities
Resolution.
SECTION 9.08. Adjustment in Conversion Rate for Change in Capital Stock.
If the Securities are convertible into Common Stock and the Company:
(1) pays a dividend or makes a distribution on its Common Stock in
shares of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a greater
number of shares;
(3) combines its outstanding shares of Common Stock into a smaller
number of shares;
(4) pays a dividend or makes a distribution on its Common Stock in
shares of its Capital Stock other than Common Stock; or
(5) issues by reclassification of its Common Stock any shares of its
Capital Stock,
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of Capital Stock of the
Company (or, at the Company's option, an equivalent amount in cash) which he
would have owned immediately following such action if he had converted the
Security immediately prior to such action.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification.
If the security into which the Securities are convertible is other than
Common Stock of the Company, the conversion rate shall be subject to adjustment
as set forth in the applicable Securities Resolution.
If after an adjustment a Holder of a Security may, upon conversion, receive
shares of two or more classes of Capital Stock of the Company or other
securities, the Board of Directors of the Company shall determine the allocation
of the adjusted Conversion Rate between or among the classes of Capital Stock or
other securities. After such allocation, the conversion privilege and the
Conversion Rate of each class of Capital Stock or other securities shall
thereafter be subject to
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<PAGE>
adjustment on terms comparable to those applicable to Common Stock in this
Article or in such Securities Resolution.
SECTION 9.09. Adjustment in Conversion Rate for Common Stock Issued Below
Market Price.
If the Securities are convertible into Common Stock, and the Company issues
to all holders of Common Stock rights, options or warrants to subscribe for or
purchase shares of Common Stock, or any securities convertible into or
exchangeable for shares of Common Stock, or rights, options or warrants to
subscribe for or purchase such convertible or exchangeable securities at a Price
Per Share (as defined and determined according to the formula given below) lower
than the current Market Price on the date of such issuance, the Conversion Rate
shall be adjusted in accordance with the following formula:
AC = CC . (O + N)
-----
O.R
-
M
where:
AC = the adjusted Conversion Rate.
CC = the then current Conversion Rate.
O = the number of shares of Common Stock outstanding immediately prior to
such issuance (which number shall include shares owned or held by or
for the account of the Company).
N = the "Number of Shares," which (i) in the case of rights, options or
warrants to subscribe for or purchase shares of Common Stock or of
securities convertible into or exchangeable for shares of Common
Stock, is the maximum number of shares of Common Stock initially
issuable upon exercise, conversion or exchange thereof; and (ii) in
the case of rights, options or warrants to subscribe for or purchase
convertible or exchangeable securities, is the maximum number of
shares of Common Stock initially issuable upon the conversion or
exchange of the convertible or exchangeable securities issuable upon
the exercise of such rights, options or warrants.
R = the proceeds received or receivable by the Company, which (i) in the
case of rights, options or warrants to subscribe for or purchase
shares of Common Stock or of securities convertible into or
exchangeable for shares of Common Stock, is the aggregate amount
received or receivable by the Company in consideration for the sale
and issuance of such rights, options, warrants or convertible or
exchangeable securities, plus the minimum aggregate amount of
additional consideration, other than the convertible or
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<PAGE>
exchangeable securities, payable to the Company upon exercise,
conversion or exchange thereof; and (ii) in the case of rights,
options or warrants to subscribe for or purchase convertible or
exchangeable securities, is the aggregate amount received or
receivable by the Company in consideration for the sale and issuance
of such rights, options or warrants, plus the minimum aggregate
consideration payable to the Company upon the exercise thereof, plus
the minimum aggregate amount of additional consideration, other than
the convertible or exchangeable securities, payable upon the
conversion or exchange of the convertible or exchangeable securities;
provided, that in each case the proceeds received or receivable by
the Company shall be deemed to be the amount of gross cash proceeds
without deducting therefrom any compensation paid or discount allowed
in the sale, underwriting or purchase thereof by underwriters or
dealers or others performing similar services or any expenses
incurred in connection therewith.
M = the current Market Price per share of Common Stock on the date of
issue of the rights, options or warrants to subscribe for or purchase
shares of Common Stock or the securities convertible into or
exchangeable for shares of Common Stock or the rights, options or
warrants to subscribe for or purchase convertible or exchangeable
securities.
"PRICE PER SHARE" shall be defined and determined according to the
following formula:
P = R
-
N
where:
P = Price Per Share
and R and N have the meanings assigned above.
If the Company shall issue rights, options, warrants or convertible or
exchangeable securities with respect to its Common Stock for a consideration
consisting, in whole or in part, of property other than cash the amount of such
consideration shall be determined in good faith by the Board of Directors whose
determination shall be conclusive and evidenced by a resolution of the Board of
Directors filed with the Trustee.
The adjustment shall be made successively whenever any such additional
rights, options, warrants or convertible or exchangeable securities with respect
to its Common Stock are issued, and shall become effective immediately after the
date of issue of such shares, rights, options, warrants or convertible or
exchangeable securities.
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<PAGE>
To the extent that such rights, options or warrants to acquire Common Stock
expire unexercised or to the extent any convertible or exchangeable securities
with respect to its Common Stock are redeemed by the Company or otherwise cease
to be convertible or exchangeable into shares of Common Stock, the Conversion
Rate shall be readjusted to the Conversion Rate which would then be in effect
had the adjustment made upon the date of issuance of such rights, options,
warrants or convertible or exchangeable securities been made upon the basis of
the issuance of rights, options or warrants to subscribe for or purchase only
the number of shares of Common Stock as to which such rights, options or
warrants were actually exercised and the number of shares of Common Stock that
were actually issued upon the conversion or exchange of the convertible or
exchangeable securities.
If the Securities are convertible into securities other than the Common
Stock, any adjustment in the Conversion Rate required for the issuance or sale
of the securities into which the Securities are convertible shall be made as set
forth in the Securities Resolution.
SECTION 9.10. Adjustment for Other Distributions.
If the Securities are initially convertible into Common Stock and the
Company distributes to all holders of its Common Stock any of its assets or debt
securities or any rights or warrants to purchase assets or debt securities of
the Company, the Conversion Rate shall be adjusted in accordance with the
following formula:
AC = CC . (O . M)
-------
((O . M) - F)
where:
AC = the adjusted Conversion Rate.
CC = the then current Conversion Rate.
O = the number of shares of Common Stock outstanding on the record date
mentioned below (which number shall include shares owned or held by
or for the account of the Company).
M = the current Market Price per share of Common Stock on the record
date mentioned below.
F = the fair market value on the record date of the assets, securities,
rights or warrants distributed. The Board of Directors of the
Company shall determine the fair market value.
The adjustment shall become effective immediately after the record date for
the determination of stockholders entitled to receive the distribution.
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<PAGE>
If the securities into which the Securities are convertible are other than
Common Stock, any adjustments for such other distribution shall be made as set
forth in the Securities Resolution.
This Section does not apply to cash dividends or distributions or to
reclassifications or distributions referred to in Section 9.08. Also, this
Section does not apply to shares issued below Market Price referred to in
Section 9.09.
SECTION 9.11. Voluntary Adjustment.
The Company at any time may increase the Conversion Rate, temporarily or
otherwise, by any amount but in no event shall such Conversion Rate result in
the issuance of Capital Stock at a price less than the par value of such Capital
Stock at the time such increase is made.
SECTION 9.12. When Adjustment May Be Deferred.
No adjustment in the Conversion Rate need be made unless the adjustment
would require a change of at least 1% in the Conversion Rate. Any adjustments
that are not made due to the immediately preceding sentence shall be carried
forward and taken into account in any subsequent adjustment; provided, that any
adjustment carried forward shall be deferred not in excess of three years,
whereupon any adjustment to the Conversion Rate will be effected.
All calculations under this Article 9 shall be made to the nearest cent or
to the nearest 1/100th of a share, as the case may be.
SECTION 9.13. When No Adjustment Required.
Except as set forth in Section 9.09, no adjustment in the Conversion Rate
shall be made because the Company issues, in exchange for cash, property or
services, shares of Common Stock, or any securities convertible into shares of
Common Stock, or securities carrying the right to purchase shares of Common
Stock or such convertible securities.
No adjustment in the Conversion Rate need be made for rights to purchase or
the sale of Common Stock pursuant to a Company plan providing for reinvestment
of dividends or interest.
No adjustment in the Conversion Rate need be made for a change in the par
value of the Common Stock or other securities having a par value.
No adjustment need be made for a transaction referred to in Section 9.08,
9.09 or 9.10 if Securityholders are to participate in the transaction on a basis
and with notice that the Board of Directors determines to be fair and
appropriate in light of the basis and notice on which holders of Common Stock or
other securities into which the Securities are convertible participate in the
transaction.
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<PAGE>
SECTION 9.14. Notice of Adjustment.
Whenever the Conversion Rate is adjusted, the Company shall promptly mail
to Holders of Securities affected a notice of the adjustment. The Company shall
file with the Trustee an Officers' Certificate or a certificate from the
Company's independent public accountants stating the facts requiring the
adjustment and the manner of computing it. The certificate shall be conclusive
evidence that the adjustment is correct, absent manifest error.
SECTION 9.15. Notice of Certain Transactions.
If:
(1) the Company proposes to take any action that would require an
adjustment in the Conversion Rate,
(2) the Company proposes to take any action that would require a
supplemental indenture pursuant to Section 9.16, or
(3) there is a proposed liquidation or dissolution of the Company or of
the issuer of any other security into which the Securities are
convertible,
the Company shall mail to registered Holders of Securities of any affected
series a notice stating the proposed record date for a dividend or distribution
or the proposed effective date of a subdivision, combination, reclassification,
consolidation, merger, transfer, lease, liquidation or dissolution. The Company
shall mail the notice at least 15 days before such date. Failure to mail the
notice or any defect in it shall not affect the validity of the transaction.
SECTION 9.16. Reorganization of the Company.
If the Company is a party to a transaction subject to Section 5.01, the
successor corporation (if other than the Company) shall enter into a
supplemental indenture which shall provide that the Holder of a Security may
convert it into the kind and amount of securities, cash or other assets which he
would have owned immediately after the consolidation, merger or transfer if he
had converted the Security immediately before the effective date of the
transaction. The supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practical to the adjustments provided
for in this Article. The successor company shall mail to Holders of Securities
of any affected series a notice briefly describing the supplemental indenture.
If this Section applies, Sections 9.08, 9.09 and 9.10 do not apply.
37
<PAGE>
ARTICLE 10 -- AMENDMENTS
SECTION 10.01. Without Consent of Holders.
The Company and the Trustee may amend this Indenture or the Securities
without the consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5 or Section 9.16;
(3) to provide that specific provisions of this Indenture shall not
apply to a series not previously issued;
(4) to create a series and establish its terms;
(5) to provide for a separate Trustee for one or more series; or
(6) to make any change that does not materially adversely affect the
rights of any Securityholder.
SECTION 10.02. With Consent of Holders.
Unless the Securities Resolution otherwise provides, the Company and the
Trustee may amend this Indenture, the Securities and any coupons with the
written consent of the Holders of a majority in principal amount of the
Securities of all series affected by the amendment voting as one class; provided
that, in the case of a series issued to an EAST WEST TRUST, so long as any of
the related preferred securities of such EAST WEST TRUST remains outstanding,
no such amendment shall be made that adversely affects the holders of such
preferred securities in any material respect, and no termination of this
Indenture shall occur, without the prior consent of the holders of not less than
a majority in aggregate liquidation amount of such preferred securities then
outstanding unless and until the principal (and premium, if any) of the
Securities of such series and all accrued and unpaid interest thereon have been
paid in full; and provided further that, in the case a series issued to an EAST
WEST TRUST, so long as any of the related preferred securities of such EAST WEST
TRUST remain outstanding, no amendment shall be made to the third paragraph of
Section 6.06 of this Indenture without the prior written consent of the holders
of each such preferred security then outstanding unless and until the principal
(and premium, if any) of the Securities of such series and all accrued and
unpaid interest thereon have been paid in full. However, without the consent of
each Securityholder affected, an amendment under this Section may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment;
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<PAGE>
(2) reduce the interest on or change the time for payment of interest
on any Security (except an election to defer interest in accordance
with the applicable Securities Resolutions and Section 2.01(30)
hereof);
(3) change the fixed maturity of any Security;
(4) reduce the principal of any non-Discounted Debt Security or reduce
the amount of principal of any Discounted Debt Security that would
be due upon an acceleration thereof;
(5) change the currency in which principal or interest on a Security is
payable;
(6) make any change that materially adversely affects the right to
convert or exchange any Security; or
(7) make any change in Section 6.04 or 10.02, except to increase the
amount of Securities whose Holders must consent to an amendment or
waiver or to provide that other provisions of this Indenture cannot
be amended or waived without the consent of each Securityholder
affected thereby.
An amendment of a provision included solely for the benefit of one or more
series does not affect Securityholders of any other series.
Securityholders need not consent to the exact text of a proposed amendment
or waiver; it is sufficient if they consent to the substance thereof.
SECTION 10.03. Compliance with Trust Indenture Act.
Every amendment pursuant to Section 10.01 or 10.02 shall be set forth in a
supplemental indenture (except any amendment pursuant to Section 10.01(4), which
may be set forth in a Securities Resolution) that complies with the TIA.
If a provision of the TIA requires or permits a provision of this Indenture
and the TIA provision is amended, then the Indenture provision shall be
automatically amended to like effect.
SECTION 10.04. Effect of Consents.
An amendment or waiver becomes effective in accordance with its terms and
thereafter binds every Securityholder entitled to consent to it.
A consent to an amendment or waiver by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a Security that
evidences the same debt as the consenting Holder's Security. Any Holder or
subsequent Holder may revoke the consent as to his Security if the Trustee
receives notice of the revocation before the amendment or waiver becomes
effective.
39
<PAGE>
The Company may fix a record date for the determination of Holders of
Registered Securities entitled to give a consent. The record date shall not be
less than 10 nor more than 60 days prior to the first written solicitation of
Securityholders.
SECTION 10.05. Notation on or Exchange of Securities.
The Company or the Trustee may place an appropriate notation about an
amendment or waiver on any Security thereafter authenticated. The Company may
issue in exchange for affected Securities new Securities that reflect the
amendment or waiver.
SECTION 10.06. Trustee Protected.
The Trustee need not sign any supplemental indenture that adversely affects
its rights. The Trustee shall be provided with, and shall be fully protected in
relying upon, an Opinion of Counsel and an Officers' Certificate each stating
that the execution of any amendment or supplement or waiver is authorized or
permitted by this Indenture, and that such amendment or supplement or waiver
constitutes the legal, valid and binding obligation of the Company.
ARTICLE 11 -- MISCELLANEOUS
SECTION 11.01. Trust Indenture Act.
The provisions of TIA Sections 310 through 317 that impose duties on any
person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not expressly set forth herein.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or excluded, as the case may be.
SECTION 11.02. Notices.
Any notice by one party to another is duly given if in writing and
delivered in person, sent by facsimile transmission confirmed by mail or mailed
by first-class mail to the other's address shown below:
40
<PAGE>
Company:
East West Bancorp, Inc.
415 Huntington Drive
San Marino, California 91108
Fax: (626) 799-2799
Attention: Julia Gouw
Trustee:
_______________
_______________
_______________
_______________
Fax:
Attention:
A party by notice to the other parties may designate additional or
different addresses for subsequent notices.
Any notice mailed to a Securityholder shall be mailed to his address shown
on the register kept by the Transfer Agent or on the list referred to in Section
2.06. Failure to mail a notice to a Securityholder or any defect in a notice
mailed to a Securityholder shall not affect the sufficiency of the notice mailed
to other Securityholders or the sufficiency of any published notice.
If a notice is mailed or sent in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it, provided
however, that notices mailed or sent to the Trustee shall be duly given upon the
Trustee's receipt of such notice.
If the Company mails a notice to Securityholders, it shall mail a copy to
the Trustee and each Agent at the same time.
If in the Company's opinion it is impractical to mail a notice required to
be mailed or to publish a notice required to be published, the Company may give
such substitute notice as the Trustee approves. Failure to publish a notice as
required or any defect in it shall not affect the sufficiency of any mailed
notice.
All notices shall be in the English language, except that any published
notice may be in an official language of the country of publication.
A "notice" includes any communication required by this Indenture.
41
<PAGE>
SECTION 11.03. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and
(2) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 11.04. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
SECTION 11.05. Rules by Company and Agents.
The Company may make reasonable rules for action by or a meeting of
Securityholders. An Agent may make reasonable rules and set reasonable
requirements for its functions.
SECTION 11.06. Legal Holidays.
A "LEGAL HOLIDAY" is a Saturday, a Sunday or a day on which banking
institutions in San Marino, California or New York, New York are not permitted
or not required to be open or a day on which the Federal Reserve Bank of New
York is not open. If a payment date is a Legal Holiday at a place of payment,
unless the Securities Resolution establishing a series otherwise provides with
respect to Securities of the series, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
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<PAGE>
SECTION 11.07. No Recourse Against Others.
All liability described in the Securities of any director, officer,
employee or stockholder, as such, of the Company is waived and released.
SECTION 11.08. Duplicate Originals.
The parties may sign any number of copies of this Indenture. One signed
copy is enough to prove this Indenture.
SECTION 11.09. Governing Law.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE, THE
SECURITIES AND ANY COUPONS, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF.
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<PAGE>
S-1
SIGNATURES
Dated: EAST WEST BANCORP, INC.
By: ___________________________________________
Name:
Title:
Dated: ________________________, as Trustee
By: ___________________________________________
Name:
Title:
<PAGE>
EXHIBIT A
A Form of Registered Security
No. $______
EAST WEST BANCORP, INC.
[Title of Security]
EAST WEST BANCORP, INC. promises to pay to ____________________________________
or registered assigns the principal sum of ___________________Dollars on
__________ __, ______
Interest Payment Dates:
Record Dates:
______________________________
Transfer Agent and Paying Agent
EAST WEST BANCORP, INC.
By ___________________________________________
[Title of Authorized Officer]
By ___________________________________________
[Title of the Authorized Officer]
(SEAL)
Authenticated:
Dated:
______________________________,
as Trustee
By ___________________________________________
Authorized Signatory
A-1
<PAGE>
EAST WEST BANCORP, INC.
[Title of Security]
[Explanatory Notes follow Exhibit B]
1. INTEREST./1/
East West Bancorp, Inc. ("Company"), a Delaware corporation, promises to
pay interest on the principal amount of this Security at the rate per annum
shown above. The Company will pay interest on and ______________ of each
year commencing _______ __, _____ . Interest on the Securities will accrue
from the most recent date to which interest has been paid or, if no
interest has been paid, from ________ __, _____. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT.
The Company will pay interest on the Securities to the persons who are
registered Holders of Securities at the close of business on the record
date for the next interest payment date, except as otherwise provided in
the Indenture. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. The Company may pay principal and
interest by check payable in such money. It may mail an interest check to
a holder's registered address.
3. SECURITIES AGENTS.
Initially, _______________, Attention: Corporate Trust Trustee
Administration, will act as Paying Agent and Transfer Agent. The Company
may change any Paying Agent or Transfer Agent without notice or provide for
more than one such agent. The Company or any Affiliate may act in any such
capacity. Subject to certain conditions, the Company may change the
Trustee.
4. INDENTURE.
The Company issued the securities of this series ("Securities") under an
Indenture dated as of ______ __, 2000 ("Indenture") between the Company and
_______________ (the "Trustee"). The terms of the Securities include those
stated in the Indenture and in the Securities Resolution creating the
Securities and those made part of the Indenture by the Trust Indenture Act
of 1939 (15 U.S. Code Sections 77aaa-77bbbb). Securityholders are referred
to the Indenture, the Securities Resolution and the Act for a statement of
such terms.
A-2
<PAGE>
5. OPTIONAL REDEMPTION./2/
On or after ______ __, ____, the Company may redeem all the Securities at
any time or some of them from time to time at the following redemption
prices (expressed in percentages of principal amount), plus accrued
interest to the redemption date.
If redeemed during the 12-month period beginning,
Year Percentage Year Percentage
---- ---------- ---- ----------
and thereafter at 100%.
6. MANDATORY REDEMPTION./3/
The Company will redeem $___________ principal amount of Securities on and
on each ___________ thereafter through ______________ at a redemption
price of 100% of principal amount, plus accrued interest to the redemption
date./4/ The Company may reduce the principal amount of Securities to be
redeemed pursuant to this paragraph by subtracting 100% of the principal
amount (excluding premium) of any Securities (i) that the Company has
acquired or that the Company has redeemed other than pursuant to this
paragraph and (ii) that the Company has delivered to the Registrar for
cancellation. The Company may so subtract the same Security only once.
7. ADDITIONAL OPTIONAL REDEMPTION./5/
In addition to redemptions pursuant to the above paragraph(s), the Company
may redeem not more than $_________ principal amount of Securities
on____________ __, ____ and on each ________ thereafter through ______at a
redemption price of 100% of principal amount, plus accrued interest to the
redemption date.
8. NOTICE OF REDEMPTION./6/
Notice of redemption will be mailed at least 30 but not more than 60 days
before the redemption date to each holder of Securities to be redeemed at
his registered address.
A notice of redemption may provide that it is subject to the occurrence of
any event before the date fixed for such redemption as described in such
notice ("Conditional Redemption") and such notice of Conditional Redemption
shall be of no effect unless all such conditions to the redemption have
occurred before such date or have been waived by the Company.
A-3
<PAGE>
9. CONVERSION./7/
A Holder of a Security may convert it into Common Stock of the Company or
cash, or a combination thereof, at the Company's option, at any time before
the close of business on ___________, or, if the Security is called for
redemption, the Holder may convert it at any time before the close of
business on the redemption date. The initial Conversion Rate is
____________ (or an equivalent amount in cash) per $1,000 principal amount
of the Securities, subject to adjustment as provided in Article 9 of the
Indenture./8/ The Company will deliver a check in lieu of any fractional
share. On conversion no payment or adjustment for interest accrued on the
Securities will be made nor for dividends on the Common Stock issued on
conversion. If any Security is converted between the record date for the
payment of interest and the next succeeding interest payment date, such
Security must be accompanied by funds equal to the interest payable on such
succeeding interest payment date on the principal amount so converted
(unless such Security shall have been called for redemption, in which case
no such payment shall be required). A Security converted on an interest
payment date need not be accompanied by any payment, and the interest on
the principal amount of the Security being converted will be paid on such
interest payment date to the registered holder of such Security on the
immediately preceding record date. To convert a Security a Holder must (1)
complete and sign the conversion notice on the back of the Security, (2)
surrender the Security to a Conversion Agent, (3) furnish appropriate
endorsements and transfer documents if required by the Registrar or
Conversion Agent and (4) pay any transfer or similar tax if required. A
Holder may convert a portion of a Security if the portion is $1,000 or an
integral multiple of $1,000.
10. DENOMINATIONS, TRANSFER, EXCHANGE.
The Securities are in registered form without coupons in denominations of
$1,000/9/ and whole multiples of $1,000. The transfer of Securities may be
registered and Securities may be exchanged as provided in the Indenture.
The Transfer Agent may require a holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or the Indenture. The Transfer Agent need not exchange
or register the transfer of any Security or portion of a Security selected
for redemption. Also, it need not exchange or register the transfer of any
Securities for a period of 15 days before a selection of Securities to be
redeemed.
11. PERSONS DEEMED OWNERS.
The registered holder of a Security may be treated as its owner for all
purposes.
A-4
<PAGE>
12. AMENDMENTS AND WAIVERS.
Subject to certain exceptions, the Indenture or the Securities may be
amended with the consent of the holders of a majority in principal amount
of the securities of all series affected by the amendment. /10/ Subject to
certain exceptions, a default on a series may be waived with the consent of
the holders of a majority in principal amount of the series.
Without the consent of any Securityholder, the Indenture or the Securities
may be amended, among other things, to cure any ambiguity, omission, defect
or inconsistency; to provide for assumption of Company obligations to
Securityholders; or to make any change that does not materially adversely
affect the rights of any Securityholder.
13. RESTRICTIVE COVENANTS./11/
The Securities are unsecured general obligations of the Company limited to
$________ principal amount. The Indenture does not limit other unsecured
debt.
14. SUCCESSORS.
When a successor assumes all the obligations of the Company under the
Securities and the Indenture, the Company will be released from those
obligations.
15. DEFEASANCE PRIOR TO REDEMPTION OR MATURITY./12/
Subject to certain conditions, the Company at any time may terminate some
or all of its obligations under the Securities and the Indenture if the
Company deposits with the Trustee money or U.S. Government Obligations for
the payment of principal and interest on the Securities to redemption or
maturity. U.S. Government Obligations are securities backed by the full
faith and credit of the United States of America or certificates
representing an ownership interest in such Obligations.
16. DEFAULTS AND REMEDIES.
An Event of Default/13/ includes: default for 60 days in payment of
interest on the Securities; default in payment of principal on the
Securities; default in payment or satisfaction of any sinking fund
obligation; default by the Company for a specified period after notice to
it in the performance of any of its other agreements applicable to the
Securities; certain events of bankruptcy or insolvency; and any other Event
of Default provided for in the series. If an Event of Default occurs and
is continuing, the Trustee or the holders of at least 25% in principal
amount of the Securities may declare the principal/14/ of all the
Securities to be due and payable immediately.
A-5
<PAGE>
Securityholders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may require indemnity satisfactory
to it before it enforces the Indenture or the Securities. Subject to
certain limitations, holders of a majority in principal amount of the
Securities may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Securityholders notice of any continuing
default (except a default in payment of principal or interest) if it
determines that withholding notice is in their interests. The Company must
furnish an annual compliance certificate to the Trustee.
17. TRUSTEE DEALINGS WITH COMPANY.
_______________, the Trustee under the Indenture, in its individual or any
other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
18. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the Company shall
not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
19. AUTHENTICATION.
This Security shall not be valid until authenticated by a manual signature
of the Registrar.
20. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants by the
entirety), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), U/G/M/A (=Uniform Gifts to Minors
Act) and U/T/M/A (=Uniform Transfers to Minors Act).
A-6
<PAGE>
EXHIBIT B
A Form of Bearer Security
No. $__________
EAST WEST BANCORP, INC.
[Title of Security]
EAST WEST BANCORP, INC. promises to pay to____________________________________
bearer the principal sum of _________________ Dollars on _______ __ , ______
Interest Payment Dates:
Record Dates:
______________________________
Transfer Agent and Paying Agent
EAST WEST BANCORP, INC.
By ___________________________________________
[Title of Authorized Officer]
By ___________________________________________
[Title of the Authorized Officer]
(SEAL)
Authenticated:
Dated:
______________________________
Trustee
By ___________________________________________
Authorized Signatory
B-1
<PAGE>
EAST WEST BANCORP, INC.
[Title of Security]
[Explanatory Notes follow Exhibit B]
1. INTEREST./1/
EAST WEST BANCORP, INC. ("Company"), a Delaware corporation, promises to
pay to bearer interest on the principal amount of this Security at the rate
per annum shown above. The Company will pay interest on ______ __, ____
and ______ __ of each year commencing _____ __,_____. Interest on the
Securities will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from ______ __,____. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT.
Holders must surrender Securities and any coupons to a Paying Agent to
collect principal and interest payments. The Company will pay principal
and interest in money of the United States that at the time of payment is
legal tender for payment of public and private debts. The Company may pay
principal and interest by check payable in such money.
3. SECURITIES AGENTS.
Initially, _______________, Attention: Corporate Trust Trustee
Administration, will act as Transfer Agent, Paying Agent and Registrar.
The Company may change any Paying Agent or Transfer Agent without notice or
provide for more than one such agent. The Company or any Affiliate may act
in any such capacity. Subject to certain conditions, the Company may
change the Trustee.
4. INDENTURE.
The Company issued the securities of this series ("Securities") under an
Indenture dated as of ________ __, _____ ("Indenture") between the Company
and _______________ (the "Trustee"). The terms of the Securities include
those stated in the Indenture and the Securities Resolution and those made
part of the Indenture by the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb). Securityholders are referred to the Indenture, the
Securities Resolution and the Act for a statement of such terms.
B-2
<PAGE>
5. OPTIONAL REDEMPTION./2/
On or after _______ __, ____, the Company may redeem all the Securities at
any time or some of them from time to time at the following redemption
prices (expressed in percentages of principal amount), plus accrued
interest to the redemption date. If redeemed during the 12-month period
beginning ________ __,
Year Percentage Year Percentage
---- ---------- ---- -----------
and thereafter 100%.
6. MANDATORY REDEMPTION./3/
The Company will redeem $_________ principal amount of Securities on and on
each thereafter through at a redemption price of 100% of principal amount,
plus accrued interest to the redemption date./4/ The Company may reduce the
principal amount of Securities to be redeemed pursuant to this paragraph by
subtracting 100% of the principal amount (excluding premium) of any
Securities (i) that the Company has acquired or that the Company has
redeemed other than pursuant to this paragraph and (ii) that the Company
has delivered to the Registrar for cancellation. The Company may so
subtract the same Security only once.
7. ADDITIONAL OPTIONAL REDEMPTION./5/
In addition to redemptions pursuant to the above paragraph(s), the Company
may redeem not more than $__________ principal amount of Securities on
_______ __ and on each _______ thereafter through at a redemption price of
100% of principal amount, plus accrued interest to the redemption date.
8. NOTICE OF REDEMPTION./6/
Notice of redemption will be published once in an Authorized Newspaper in
the City of New York and if the Securities are listed on any stock exchange
located outside the United States and such stock exchange so requires, in
any other required city outside the United States at least 30 but not more
than 60 days before the redemption date. Notice of redemption also will be
mailed to holders who have filed their names and addresses with the
Transfer Agent within the two preceding years. A holder of Securities may
miss important notices if he fails to maintain his name and address with
the Transfer Agent.
A notice of redemption may provide that it is subject to the occurrence of
any event before the date fixed for such redemption as described in such
notice ("Conditional Redemption")
B-3
<PAGE>
and such notice of Conditional Redemption shall be of no effect unless all
such conditions to the redemption have occurred before such date or have
been waived by the Company.
B-4
<PAGE>
9. CONVERSION./7/
A Holder of a Security may convert it into Common Stock of the Company or
cash, or a combination thereof, at the Company's option, at any time before
the close of business on __________ , ____ or, if the Security is called
for redemption, the Holder may convert it at any time before the close of
business on the redemption date. The initial Conversion Rate is
____________ (or an equivalent amount in cash) per $1,000 principal amount
of the Securities, subject to adjustment as provided in Article 9 of the
Indenture./8/ The Company will deliver a check in lieu of any fractional
share. On conversion no payment or adjustment for interest accrued on the
Securities will be made nor for dividends on the Common Stock issued on
conversion. If any Security is converted between the record date for the
payment of interest and the next succeeding interest payment date, such
Security must be accompanied by funds equal to the interest payable on such
succeeding interest payment date on the principal amount so converted
(unless such Security shall have been called for redemption, in which case
no such payment shall be required). A Security converted on an interest
payment date need not be accompanied by any payment, and the interest on
the principal amount of the Security being converted will be paid on such
interest payment date to the registered holder of such Security on the
immediately preceding record date.
To convert a Security a Holder must (1) complete and sign the conversion
notice on the back of the Security, (2) surrender the Security to a
Conversion Agent, (3) furnish appropriate endorsements and transfer
documents if required by the Registrar or Conversion Agent and (4) pay any
transfer or similar tax if required. A Holder may convert a portion of a
Security if the portion is $1,000 or an integral multiple of $1,000.
10. DENOMINATIONS, TRANSFER, EXCHANGE.
The Securities are in bearer form with coupons in denominations of
$5,000/9/ and whole multiples of $5,000. The Securities may be transferred
by delivery and exchanged as provided in the Indenture. Upon an exchange,
the Transfer Agent may require a holder, among other things, to furnish
appropriate documents and to pay any taxes and fees required by law or the
Indenture. The Transfer Agent need not exchange any Security or portion of
a Security selected for redemption. Also, it need not exchange any
Securities for a period of 15 days before a selection of Securities to be
redeemed.
11. PERSONS DEEMED OWNERS.
The holder of a Security or coupon may be treated as its owner for all
purposes.
B-5
<PAGE>
12. AMENDMENTS AND WAIVERS.
Subject to certain exceptions, the Indenture or the Securities may be
amended with the consent of the holders of a majority in principal amount
of the securities of all series affected by the amendment./10/ Subject to
certain exceptions, a default on a series may be waived with the consent of
the holders of a majority in principal amount of the series.
Without the consent of any Securityholder, the Indenture or the Securities
may be amended, among other things, to cure any ambiguity, omission, defect
or inconsistency; to provide for assumption of Company obligations to
Securityholders; or to make any change that does not materially adversely
affect the rights of any Securityholder.
13. RESTRICTIVE COVENANTS./11/
The Securities are unsecured general obligations of the Company limited to
$_________ principal amount. The Indenture does not limit other unsecured
debt.
14. SUCCESSORS.
When a successor assumes all the obligations of the Company under the
Securities, any coupons and the Indenture, the Company will be released
from those obligations.
15. DEFEASANCE PRIOR TO REDEMPTION OR MATURITY./12/
Subject to certain conditions, the Company at any time may terminate some
or all of its obligations under the Securities, any coupons and the
Indenture if the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest on the Securities to
redemption or maturity. U.S. Government Obligations are securities backed
by the full faith and credit of the United States of America or
certificates representing an ownership interest in such Obligations.
16. DEFAULTS AND REMEDIES.
An Event of Default/13/ includes: default for 60 days in payment of
interest on the Securities; default in payment of principal on the
Securities; default in payment or satisfaction of any sinking fund
obligation; default by the Company for a specified period after notice to
it in the performance of any of its other agreements applicable to the
Securities; certain events of bankruptcy or insolvency; and any other Event
of Default provided for in the series. If an Event of Default occurs and
is continuing, the Trustee or the holders of at least 25% in principal
amount of the Securities may declare the principal/14/ of all the
Securities to be due and payable immediately. Securityholders may not
enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Securities. Subject to certain limitations,
holders of a majority in principal amount of the Securities may direct the
B-7
<PAGE>
Trustee in its exercise of any trust or power. The Trustee may withhold
from Securityholders notice of any continuing default (except a default in
payment of principal or interest) if it determines that withholding notice
is in their interests. The Company must furnish annual compliance
certificates to the Trustee.
17. TRUSTEE DEALINGS WITH COMPANY.
_______________, the Trustee under the Indenture, in its individual or any
other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
18. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the Company shall
not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by
accepting a Security waives and releases all such liability. The waiver
and release are part of the consideration for the issue of the Securities.
19. AUTHENTICATION.
This Security shall not be valid until authenticated by a manual signature
of the Registrar.
20. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as: TEN COM (=tenants in common), TEN ENT (=tenants by the
entirety), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), U/G/M/A (=Uniform Gifts to Minors
Act) and U/T/M/A (=Uniform Transfers to Minors Act).
B-7
<PAGE>
$_____________
$_____________
Due __________
EAST WEST BANCORP, INC.
[Title of Security]
Unless the Security attached to this coupon has been called for redemption,
East West Bancorp, Inc. ("Company") will pay to bearer, upon surrender, the
amount shown hereon when due. This coupon may be surrendered for payment to any
Paying Agent listed on the back of this coupon unless the Company has replaced
such Agent. Payment may be made by check. This coupon represents months'
interest.
EAST WEST BANCORP, INC.
By _____________________________________
[REVERSE OF COUPON]
PAYING AGENTS
B-8
<PAGE>
NOTES TO EXHIBITS A AND B
1 If the Security is not to bear interest at a fixed rate per annum, insert a
description of the manner in which the rate of interest is to be
determined. If the Security is not to bear interest prior to maturity, so
state.
2 If applicable. If the Security is to be subject to a nonrefunding
restriction, insert a brief summary thereof. If the redemption is to be
subject to a condition, insert a brief summary thereof.
3 Such provisions as are applicable, if any.
4 If the Security is a Discounted Debt Security, insert amount to be redeemed
or method of calculating such amount.
5 If applicable. Also insert, if applicable, provisions for repayment of
Securities at the option of the Securityholder.
6 If applicable.
7 If applicable. If convertible into securities other than Common Stock,
insert appropriate summary.
8 If additional or different adjustment provisions apply so specify.
9 If applicable. Insert additional or different denominations and terms as
appropriate.
10 If different terms apply, insert a brief summary thereof.
11 If applicable. If additional or different covenants apply, insert a brief
summary thereof.
12 If applicable. If different defeasance terms apply, insert a brief summary
thereof.
13 If additional or different Events of Default apply, insert a brief summary
thereof.
14 If the Security is a Discounted Debt Security, set forth the amount due and
payable upon an Event of Default.
Note: U.S. tax law may require certain legends on Discounted Debt and Bearer
Securities.
B-9
<PAGE>
EXHIBIT C
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
_________________________________________
_________________________________:________________________ :
_______________ :________________________________________ :
(Insert assignee's soc. sec. or tax I.D. no.)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________ agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
Date: _______________ Your Signature: ________________________
____________________________________________________
(Sign exactly as your name(s) appear(s) on the other
side of this Security)
Signature(s) guaranteed by: _______________________________________________
(All signatures must be guaranteed by an "eligible
guarantor institution" as defined by Rule 17Ad-15
of the Securities Exchange Act of 1934, as amended)
C-1
<PAGE>
EXHIBIT D
CONVERSION NOTICE
To convert this Security, check the box:
[_]
To convert only part of this Security, state the amount (must be in integral
multiples of $1,000);
$_____________________________
If you want the securities delivered upon conversion made out in another
person's name, fill in the form below:
(Insert other person's Social Security or Tax I.D. Number)
______________________________
______________________________
______________________________
______________________________
(Print or type other person's name, address and zip code)
Date: ____________ Signature(s): ____________________________
_____________________________________________
(Sign exactly as your name(s) appear(s) on the other
side of this Security)
Signature(s) guaranteed by: ___________________________________________________
(All signatures must be guaranteed by an "eligible
guarantor institution" as defined by Rule 17Ad-15
of the Securities Exchange Act of 1934, as amended)
D-1
<PAGE>
Exhibit 4.2
================================================================================
_______________________
EAST WEST BANCORP, INC.
_______________________
INDENTURE
Dated as of _________ __, 2000
_______________________
_______________
as Trustee
_______________________
JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURES
================================================================================
<PAGE>
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as of
_______ __, 2000 between East West Bancorp, Inc. and _______________, Trustee:
<TABLE>
<CAPTION>
ACT SECTION INDENTURE SECTION
<S> <C>
310(a)(1)..........................................................6.09
310(a)(2)..........................................................6.09
310(a)(3)...........................................................N/A
310(a)(4)...........................................................N/A
310(a)(5)..............................................6.09, 6.10, 6.11
310(b).............................................................6.08
310(c)..............................................................N/A
311(a) and (b).....................................................6.13
311(c)..............................................................N/A
312(a).......................................................4.01, 4.02(a)
312(b) and (c).....................................................4.02
313(a).............................................................4.04
313(b)(1)..........................................................4.04
313(b)(2)..........................................................4.04
313(c).............................................................4.04
313(d).............................................................4.04
314(a).............................................................4.03
314(b)..............................................................N/A
314(c)(1) and (2)..................................................6.07
314(c)(3)...........................................................N/A
314(d)..............................................................N/A
314(e).............................................................6.07
314(f)..............................................................N/A
315(a)(c) and (d)............................................6.01, 6.02
315(b).............................................................5.08
315(e).............................................................5.09
316(a)(1)..........................................................5.07
316(a)(2)...........................................................N/A
316(a) last sentence...............................................1.01
316(b).............................................................9.02
317(a).......................................................5.02, 5.05
317(b).............................................................6.05
318(a)............................................................13.08
</TABLE>
- ---------------------------------------------
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
<PAGE>
TABLE OF CONTENTS/*/
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I DEFINITIONS
SECTION 1.01. Definitions.................................... 1
Additional Sums.................................................... 1
Affiliate.......................................................... 1
Allocable Amounts.................................................. 1
Authenticating Agent............................................... 2
Bankruptcy Law..................................................... 2
Board of Directors................................................. 2
Board Resolution................................................... 2
Business Day....................................................... 2
Commission......................................................... 2
Common Securities.................................................. 2
Common Securities Guarantee........................................ 2
Common Stock....................................................... 3
Company............................................................ 3
Company Request.................................................... 3
Compounded Interest................................................ 3
Custodian.......................................................... 3
Declaration........................................................ 3
Default............................................................ 3
Defaulted Interest................................................. 3
Deferred Interest.................................................. 3
Definitive Securities.............................................. 3
Depository......................................................... 3
Dissolution Event.................................................. 3
East West Bancorp Capital Trust I or the Trust..................... 3
Event of Default................................................... 4
Exchange Act....................................................... 4
Extended Interest Payment Period................................... 4
Global Security.................................................... 4
Indebtedness....................................................... 4
Indenture.......................................................... 4
Interest Payment Date.............................................. 4
Investment Company Event........................................... 4
</TABLE>
/*/ THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART
OF THE INDENTURE.
i
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Maturity Date...................................................... 5
Mortgage........................................................... 5
Non Book-Entry Preferred Securities................................ 5
Officers........................................................... 5
Officers' Certificate.............................................. 5
Opinion of Counsel................................................. 5
Other Debentures................................................... 5
Other Guarantees................................................... 5
Outstanding........................................................ 5
Person............................................................. 6
Predecessor Security............................................... 6
Preferred Securities............................................... 6
Preferred Securities Guarantee..................................... 7
Principal Office of the Trustee.................................... 7
Property Trustee................................................... 7
Redemption Date.................................................... 7
Redemption Price................................................... 7
Regulatory Capital Event........................................... 7
Responsible Officer................................................ 7
Securities or Security............................................. 7
Securities Act..................................................... 7
Securityholder or holder of Securities............................. 7
Security Register.................................................. 8
Senior and Subordinated Indebtedness............................... 8
Special Event...................................................... 8
Subsidiary......................................................... 8
Tax Event.......................................................... 8
Trust Indenture Act of 1939........................................ 9
Trustee............................................................ 9
Trust Securities................................................... 9
Underwriting Agreement............................................. 9
U.S. Government Obligations........................................ 9
ARTICLE II SECURITIES
SECTION 2.01. Forms Generally................................. 10
SECTION 2.02. Execution and Authentication.................... 10
SECTION 2.03. Form and Payment................................ 10
SECTION 2.04. Global Security................................. 11
SECTION 2.05 Interest........................................ 12
SECTION 2.06. Transfer and Exchange........................... 13
SECTION 2.07. Replacement Securities.......................... 14
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 2.08. Temporary Securities...................................... 14
SECTION 2.09. Cancellation.............................................. 15
SECTION 2.10. Defaulted Interest........................................ 15
SECTION 2.11. CUSIP Numbers............................................. 16
ARTICLE III PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal and Interest......................... 16
SECTION 3.02. Offices for Notices and Payments, etc..................... 17
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office........ 17
SECTION 3.04. Provision as to Paying Agent.............................. 17
SECTION 3.05. Certificate to Trustee.................................... 19
SECTION 3.06. Compliance with Consolidation Provisions.................. 19
SECTION 3.07. Limitation on Dividends................................... 19
SECTION 3.08. Covenants as to East West Bancorp Capital Trust I......... 20
SECTION 3.09. Payment of Expenses....................................... 20
SECTION 3.10. Payment Upon Resignation or Removal....................... 21
SECTION 3.11. Corporate Existence....................................... 21
SECTION 3.12. Notice of Default......................................... 21
SECTION 3.13. Listing on an Exchange.................................... 21
ARTICLE IV SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists.................................... 22
SECTION 4.02. Preservation and Disclosure of Lists...................... 22
SECTION 4.03. Reports by Company........................................ 24
SECTION 4.04. Reports by the Trustee.................................... 25
ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.01. Events of Default......................................... 25
SECTION 5.02. Payment of Securities on Default; Suit Therefor........... 27
SECTION 5.03. Application of Moneys Collected by Trustee................ 29
SECTION 5.04. Proceedings by Securityholders............................ 29
SECTION 5.05. Proceedings by Trustee.................................... 30
SECTION 5.06. Remedies Cumulative and Continuing........................ 30
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders............................... 31
SECTION 5.08. Notice of Defaults........................................ 31
SECTION 5.09. Undertaking to Pay Costs.................................. 32
</TABLE>
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SECTION 5.10. Waiver of Stay, Extension or Usury Laws................... 32
ARTICLE VI CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee.................... 32
SECTION 6.02. Reliance on Documents, Opinions, etc...................... 34
SECTION 6.03. No Responsibility for Recitals, etc....................... 36
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Securities.................... 36
SECTION 6.05. Moneys to be Held in Trust................................ 36
SECTION 6.06. Compensation and Expenses of Trustee...................... 36
SECTION 6.07. Officers' Certificate as Evidence......................... 37
SECTION 6.08. Conflicting Interest of Trustee........................... 37
SECTION 6.09. Eligibility of Trustee.................................... 37
SECTION 6.10. Resignation or Removal of Trustee......................... 38
SECTION 6.11. Acceptance by Successor Trustee........................... 40
SECTION 6.12. Succession by Merger, etc................................. 40
SECTION 6.13. Limitation on Rights of Trustee as a Creditor............. 41
SECTION 6.14. Authenticating Agents..................................... 41
ARTICLE VII CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders................................. 42
SECTION 7.02. Proof of Execution by Securityholders..................... 43
SECTION 7.03. Who Are Deemed Absolute Owners............................ 43
SECTION 7.04. Securities Owned by Company Deemed Not Outstanding........ 44
SECTION 7.05. Revocation of Consents; Future Holders Bound.............. 44
ARTICLE VIII SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings...................................... 44
SECTION 8.02. Call of Meetings by Trustee............................... 45
SECTION 8.03. Call of Meetings by Company or Securityholders............ 45
SECTION 8.04. Qualifications for Voting................................. 45
SECTION 8.05. Regulations............................................... 46
SECTION 8.06. Voting.................................................... 46
ARTICLE IX AMENDMENTS
SECTION 9.01. Without Consent of Securityholders........................ 47
SECTION 9.02. With Consent of Securityholders........................... 48
</TABLE>
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SECTION 9.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures................................... 49
SECTION 9.04. Notation on Securities.................................... 49
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to
be Furnished Trustee...................................... 50
ARTICLE X CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain Terms.......... 50
SECTION 10.02. Successor Corporation to be Substituted for Company...... 51
SECTION 10.03. Opinion of Counsel to be Given Trustee................... 51
ARTICLE XI SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture................................... 51
SECTION 11.02. Deposited Moneys and U.S. Government Obligations to
be Held in Trust by Trustee.............................. 52
SECTION 11.03. Paying Agent to Repay Moneys Held........................ 52
SECTION 11.04. Return of Unclaimed Moneys............................... 53
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations.............................................. 53
ARTICLE XII IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Securities Solely Corporate Obligation.......... 55
ARTICLE XIII MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors............................................... 55
SECTION 13.02. Official Acts by Successor Corporation................... 55
SECTION 13.03. Surrender of Company Powers.............................. 56
SECTION 13.04. Addresses for Notices, etc............................... 56
SECTION 13.05. Governing Law............................................ 56
SECTION 13.06. Evidence of Compliance with Conditions Precedent......... 56
SECTION 13.07. Business Days............................................ 57
SECTION 13.08. Trust Indenture Act to Control........................... 57
SECTION 13.09. Table of Contents, Headings, etc......................... 57
SECTION 13.10. Execution in Counterparts................................ 57
SECTION 13.11. Separability............................................. 57
SECTION 13.12. Assignment............................................... 58
SECTION 13.13. Acknowledgment of Rights................................. 58
</TABLE>
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ARTICLE XIV REDEMPTION OF SECURITIES
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SECTION 14.01. Special Event Redemption........................... 58
SECTION 14.02. Optional Redemption by Company..................... 59
SECTION 14.03. No Sinking Fund.................................... 59
SECTION 14.04. Notice of Redemption; Selection of Securities...... 59
SECTION 14.05. Payment of Securities Called for Redemption........ 60
ARTICLE XV SUBORDINATION OF SECURITIES
SECTION 15.01. Agreement to Subordinate........................... 61
SECTION 15.02. Default on Senior and Subordinated Indebtedness.... 61
SECTION 15.03. Liquidation; Dissolution; Bankruptcy............... 62
SECTION 15.04. Subrogation........................................ 63
SECTION 15.05. Trustee to Effectuate Subordination................ 64
SECTION 15.06. Notice by the Company.............................. 64
SECTION 15.07. Rights of the Trustee; Holders of Senior
and Subordinated Indebtedness...................... 65
SECTION 15.08. Subordination May Not Be Impaired.................. 66
ARTICLE XVI EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.01. Extension of Interest Payment Period............... 67
SECTION 16.02. Notice of Extension................................ 67
EXHIBIT A................................................................... A-1
</TABLE>
Testimonium
Signatures
Acknowledgements
vi
<PAGE>
THIS INDENTURE, dated as of __________ __, 2000, between East West
Bancorp, Inc., a Delaware corporation (hereinafter sometimes called the
"Company"), and _______________, a ___________ banking corporation, as trustee
(hereinafter sometimes called the "Trustee"),
W I T N E S S E T H :
In consideration of the premises, and the purchase of the Securities
by the holders thereof, the Company covenants and agrees with the Trustee for
the equal and proportionate benefit of the respective holders from time to time
of the Securities, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture shall have the respective meanings specified in this Section
1.01. All other terms used in this Indenture which are defined in the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), or which are by
reference therein defined in the Securities Act, shall (except as herein
otherwise expressly provided or unless the context otherwise requires) have the
meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of this Indenture as originally executed.
The following terms have the meanings given to them in the Declaration: (i)
Clearing Agency; (ii) Delaware Trustee; (iii) Property Trustee; (iv)
Administrative Trustees; (v) Direct Action; and (vi) Distributions. All
accounting terms used herein and not expressly defined shall have the meanings
assigned to such terms in accordance with generally accepted accounting
principles and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of any computation.
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. Headings are used for convenience of reference only and do
not affect interpretation. The singular includes the plural and vice versa.
" Additional Sums" shall have the meaning set forth in Section
2.05(c).
" Affiliate" shall have the meaning given to that term in Rule 405
under the Securities Act or any successor rule thereunder.
" Allocable Amounts" when used with respect to any Senior and
Subordinated Indebtedness, means all amounts due or to become due on such Senior
and Subordinated Indebtedness less, if applicable, any amount which would have
been paid to, and retained by, the holders of such Senior and Subordinated
Indebtedness (whether as a result of the receipt of payments by the holders of
such Senior and Subordinated Indebtedness from the Company or any other obligor
<PAGE>
thereon or from any holders of, or trustee in respect of, other indebtedness
that is subordinate and junior in right of payment to such Senior and
Subordinated Indebtedness pursuant to any provision of such indebtedness for the
payment over of amounts received on account of such indebtedness to the holders
of such Senior and Subordinated Indebtedness or otherwise) but for the fact that
such Senior and Subordinated Indebtedness is subordinated or junior in right of
payment to (or subject to a requirement that amounts received on such Senior and
Subordinated Indebtedness be paid over to obligees on) trade accounts payable or
accrued liabilities arising in the ordinary course of business.
"Authenticating Agent" shall mean any agent or agents of the Trustee
which at the time shall be appointed and acting pursuant to Section 6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" shall mean either the Board of Directors of the
Company or any duly authorized committee of that board.
"Board Resolution" shall mean 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 and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" shall mean, with respect to any series of Securities,
any day other than a Saturday or a Sunday or a day on which banking institutions
in the cities of New York, New York or San Marino, California are authorized or
required by law or executive order to close.
"Commission" shall mean the Securities and Exchange Commission, as
from time to time constituted or created under the Exchange Act, or if at any
time after the execution of this Indenture 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" shall mean undivided beneficial interests in the
assets of East West Bancorp Capital Trust I which rank pari passu with Preferred
Securities issued by East West Bancorp Capital Trust I; provided, however, that
-------- -------
if an Event of Default has occurred and is continuing, no payments in respect of
Distributions on, or payments upon liquidation, redemption or otherwise with
respect to, the Common Securities shall be made until the holders of the
Preferred Securities shall be paid in full the Distributions and the
liquidation, redemption and other payments to which they are entitled.
"Common Securities Guarantee" shall mean any guarantee that the
Company may enter into with any Person or Persons that operates directly or
indirectly for the benefit of holders of Common Securities of East West Bancorp
Capital Trust I.
2
<PAGE>
" Common Stock" shall mean the Common Stock, par value $0.001 per
share, of the Company or any other class of stock resulting from changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value.
" Company" shall mean East West Bancorp, Inc., a Delaware corporation,
and, subject to the provisions of Article X, shall include its successors and
assigns.
" Company Request" or "Company Order" shall mean a written request or
order signed in the name of the Company by an Officer of the Company, and
delivered to the Trustee.
" Compounded Interest" shall have the meaning set forth in Section
16.01.
" Custodian" shall mean any receiver, trustee, assignee, liquidator,
or similar official under any Bankruptcy Law.
" Declaration" means the Amended and Restated Declaration of Trust of
East West Bancorp Capital Trust I, dated as of __________ __, 2000, as amended
from time to time.
" Default" means any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Defaulted Interest" shall have the same meaning set forth in Section
2.10.
" Deferred Interest" shall have the meaning set forth in Section
16.01.
" Definitive Securities" shall mean those securities issued in fully
registered certificated form not otherwise in global form.
" Depository" shall mean, with respect to Securities, for which the
Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, New York, New York, another clearing
agency, or any successor registered as a clearing agency under the Exchange Act
or other applicable statute or regulation, which, in each case, shall be
designated by the Company pursuant to Section 2.04(d).
" Dissolution Event" means the liquidation of East West Bancorp
Capital Trust pursuant to the Declaration, and the distribution of the
Securities held by the Property Trustee to the holders of the Trust Securities
issued by East West Bancorp Capital Trust pro rata in accordance with the
--- ----
Declaration.
"East West Bancorp Capital Trust" or the "Trust" shall mean East West
Bancorp Capital Trust I, a Delaware business trust created for the purpose of
issuing its undivided beneficial interests in connection with the issuance of
Securities under this Indenture.
3
<PAGE>
" Event of Default" shall mean any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of the notice, if
any, therein designated.
" Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
" Extended Interest Payment Period" shall have the meaning set forth
in Section 16.01.
" Global Security" means, with respect to the Securities, a Security
executed by the Company and delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction, all in accordance with the Indenture,
which shall be registered in the name of the Depositary or its nominee.
"Indebtedness" shall mean 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;
(vi) all indebtedness of such Person whether incurred on or prior to the date of
the Indenture or thereafter incurred, for claims in respect of derivative
products, including interest rate, foreign exchange rate and commodity forward
contracts, options and swaps and similar arrangements; and (vii) every
obligation of the type referred to in clauses (i) through (vi) 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, directly or indirectly, as
obligor or otherwise.
" Indenture" shall mean this instrument as originally executed or, if
amended as herein provided, as so amended.
" Interest Payment Date" shall have the meaning set forth in Section
2.05(a).
" Investment Company Event" means the receipt by East West Bancorp
Capital Trust and the Company of an Opinion of Counsel, rendered by a law firm
experienced in such matters, to the effect that, as a result of 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, East
West Bancorp Capital Trust is or will be considered an "investment company" that
is required to be registered under the Investment Company Act of 1940, as
amended, which change becomes effective on or after the date of original
issuance of the Preferred Securities of East West Bancorp Capital Trust.
4
<PAGE>
" Maturity Date" shall mean _________ __, 2030.
" Mortgage" shall mean and include any mortgage, pledge, lien,
security interest, conditional sale or other title retention agreement or other
similar encumbrance.
" Non Book-Entry Preferred Securities" shall have the meaning set
forth in Section 2.04(a)(ii).
" Officer" shall mean any of the Chairman, a Vice Chairman, the Chief
Executive Officer, the President, the Chief Financial Officer, a Vice President,
the Comptroller, the Secretary or an Assistant Secretary of the Company.
" Officers' Certificate" shall mean a certificate signed by two
Officers and delivered to the Trustee.
" Opinion of Counsel" shall mean a written opinion of counsel, who may
be an employee of the Company unless otherwise provided herein, and who shall be
acceptable to the Trustee.
" Other Debentures" means all junior subordinated debentures issued by
the Company from time to time and sold to trusts established or to be
established by the Company, in each case similar to the Trust.
" Other Guarantees" means all guarantees issued or to be issued by the
Company with respect to preferred securities and issued to other trusts to be
established by the Company, in each case similar to the Trust.
" Outstanding", when used with reference to Securities, shall, subject
to the provisions of Section 7.04, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee or the Authenticating
Agent under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or the
Authenticating Agent or delivered to the Trustee for
cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the
Company) or shall have been set aside and segregated in trust by
the Company (if the Company shall act as its own paying agent);
provided that, if such Securities, or portions thereof, are to be
redeemed prior to maturity thereof, notice of such redemption
shall have been given as in Article XIV provided or provision
satisfactory to the Trustee shall have been made for giving such
notice; and
5
<PAGE>
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant
to the terms of Section 2.08 unless proof satisfactory to the
Company and the Trustee is presented that any such Securities are
held by bona fide holders in due course;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities 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 Securities which the Trustee actually knows to be so
owned shall be so disregarded. Securities 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
Securities and that the pledgee is not the Company or any other obligor upon the
Securities 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 Securities, 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 Securities or any Affiliate of the Company
or such obligor, and, subject to the provisions of Section 6.01, 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 Securities not listed
therein are Outstanding for the purpose of any such determination.
" Person" shall mean any individual, corporation, estate, partnership,
joint venture, association, joint-stock company, limited liability company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
" Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 2.07 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
" Preferred Securities" shall mean undivided beneficial interests in
the assets of East West Bancorp Capital Trust which rank pari passu with the
Common Securities issued by East West Bancorp Capital Trust; provided, however,
-------- -------
that if an Event of Default has occurred and is continuing, no payments in
respect of Distributions on, or payments upon liquidation, redemption or
otherwise with respect to, the Common Securities shall be made until the holders
of the Preferred Securities shall be paid in full the Distributions and the
liquidation, redemption and other payments to which they are entitled.
6
<PAGE>
" Preferred Securities Guarantee" shall mean any guarantee that the
Company may enter into with _______________ as trustee or other Persons that
operates directly or indirectly for the benefit of holders of Preferred
Securities.
" Principal Office of the Trustee", or other similar term, shall mean
the office of the Trustee, at which at any particular time its corporate trust
business shall be principally administered.
" Property Trustee" shall have the same meaning as set forth in the
Declaration.
" Redemption Date" when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
" Redemption Price" when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to Section
14.01 of this Indenture.
"Regulatory Capital Event" means that the Company shall have received
an opinion of bank regulatory counsel (who shall not be an employee of the
Company) experienced in such matters to the effect that, as a result of (a) any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any rules,
guidelines or policies of applicable regulatory agencies or (b) any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or such
pronouncement or decision is announced on or after the date of this Indenture,
the Preferred Securities do not constitute, or within 90 days of the date
thereof, will not constitute, Tier I Capital (or its then equivalent) for
purposes of the capital adequacy guidelines of the Board of Governors of the
Federal Reserve (or any successor regulatory authority with jurisdiction over
bank holding companies), or any capital adequacy guidelines as then in effect
and applicable to the Company; provided, however, that the distribution of the
-------- -------
Junior Subordinated Debentures in connection with a termination of the Trust by
the Company shall not in and of itself constitute a Regulatory Capital Event.
" Responsible Officer" shall mean any officer in the corporate trust
department of the Trustee with direct responsibility for the administration of
the Indenture and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
" Securities" or "Security" mean, any debt securities or debt
security, as the case may be, authenticated and delivered under this Indenture.
" Securities Act" shall mean the Securities Act of 1933, as amended.
" Securityholder", " holder of Securities", or other similar terms,
shall mean any Person in whose name at the time a particular Security is
registered on the register kept by the Company or the Trustee for that purpose
in accordance with the terms hereof.
7
<PAGE>
" Security Register" shall have the meaning specified in Section 2.06.
"Senior and Subordinated Indebtedness" 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 Indebtedness of the Company, 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
Securities or other Indebtedness which is pari passu with, or subordinated to,
the Securities, provided, however, that Senior and Subordinated Indebtedness
-------- -------
shall not be deemed to include (a) any Indebtedness of the Company which, when
incurred and without respect to any election under Section 1111(b) of the
Bankruptcy Reform Act of 1978, as amended, was without recourse to the Company,
(b) any Indebtedness of the Company to any of its Subsidiaries, (c) Indebtedness
to any employee of the Company, and (d) any Securities.
" Special Event" means either an Investment Company Event, a
Regulatory Capital Event or a Tax Event.
" Subsidiary" shall mean with respect to any Person, (i) any
corporation at least a majority of the outstanding voting stock of which is
owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of
whose outstanding partnership or similar interests shall at the time be owned by
such Person, or by one or more of its Subsidiaries, or by such Person and one or
more of its Subsidiaries and (iii) any limited partnership of which such Person
or any of its Subsidiaries is a general partner. For the purposes of this
definition, "voting stock" means shares, interests, participation or other
equivalents in the equity interest (however designated) in such Person having
ordinary voting power for the election of a majority of the directors (or the
equivalent) of such Person, other than shares, interests, participation or other
equivalents having such power only by reason of the occurrence of a contingency.
" Tax Event" shall mean the receipt by East West Bancorp Capital Trust
and 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 or taxing authority thereof or therein or as
a result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronounce ment or decision is announced on or after the date
of this Indenture, there is more than an insubstantial risk that (i) East West
Bancorp Capital Trust is, or will be within 90 days of the date of such opinion,
subject to United States Federal income tax with respect to income received or
accrued on the Securities, (ii) interest payable by the Company on the
Securities is not, or within 90 days of the date of such opinion, will not be,
deductible by the Company, in whole or in part, for United States Federal income
tax purposes or (iii) East West Bancorp Capital Trust is, or will be
8
<PAGE>
within 90 days of the date of such opinion, subject to more than a de minimis
amount of other taxes, duties or other governmental charges.
" Trust Indenture Act of 1939" shall mean the Trust Indenture Act of
1939 as in force at the date of execution of this Indenture; provided, however,
-------- -------
that, in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act of 1939" shall mean, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
" Trustee" shall mean the Person identified as "Trustee" in the first
paragraph hereof, and, subject to the provisions of Article VI hereof, shall
also include its successors and assigns as Trustee hereunder. The term
"Trustee" as used with respect to a particular series of the Securities shall
mean the trustee with respect to that series.
" Trust Securities" shall mean the Preferred Securities and the Common
Securities, collectively.
"Underwriting Agreement" shall mean the Underwriting Agreement dated
___________ __, 2000 among the Company, East West Bancorp Capital Trust and the
underwriters named therein.
" U.S. Government Obligations" shall mean securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged 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 as a full faith and
credit obligation by the United States of America, which, in either case under
clauses (i) or (ii) are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a 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
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
9
<PAGE>
ARTICLE II
SECURITIES
SECTION 2.01. Forms Generally.
The Securities and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A, the terms of which are incorporated
----------
in and made a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule, agreements to
which the Company is subject or usage. Each Security shall be dated the date of
its authentication. The Securities shall be issued in denominations of $__ and
integral multiples thereof.
SECTION 2.02. Execution and Authentication.
The Securities shall be executed on behalf of the Company by a duly
authorized Officer and attested by a Secretary or an Assistant Secretary. The
signature of any such person on the Securities may be manual or facsimile. If
an Officer whose signature is on a Security no longer holds that office at the
time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature of the Trustee shall be conclusive
evidence that the Security has been authenticated under this Indenture. The
form of Trustee's certificate of authentication to be borne by the Securities
shall be substantially as set forth in Exhibit A hereto.
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The Trustee shall, upon a Company Order, authenticate for original
issue up to, and the aggregate principal amount of Securities outstanding at any
time may not exceed $__________ aggregate principal amount of the Securities,
except as provided in Sections 2.06, 2.07, 2.08 and 14.05.
SECTION 2.03. Form and Payment.
Except as provided in Section 2.04, the Securities shall be issued in
fully registered certificated form without interest coupons. Principal of and
interest on the Securities issued in certificated form will be payable, the
transfer of such Securities will be registrable and such Securities will be
exchangeable for Securities bearing identical terms and provisions at the office
or agency of the Company maintained for such purpose under Section 3.02;
provided, however, that payment of interest with respect to Securities (other
- -------- -------
than a Global Security) may be made at the option of the Company (i) by check
mailed to the holder at such address as shall appear in the Security Register or
(ii) by transfer to an account maintained by the Person entitled thereto,
provided that proper transfer instructions have been received in writing by the
relevant record date.
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SECTION 2.04. Global Security.
(a) In connection with a Dissolution Event,
(i) if any Preferred Securities are held in book-entry form, the
related Definitive Securities shall be presented to the Trustee (if an
arrangement with the Depositary has been maintained) by the Property
Trustee in exchange for one or more Global Securities (as may be required
pursuant to Section 2.06) in an aggregate principal amount equal to the
aggregate principal amount of all outstanding Securities, to be registered
in the name of the Depositary, or its nominee, and delivered by the Trustee
to the Depositary for crediting to the accounts of its participants
pursuant to the instructions of the Administrative Trustees; the Company
upon any such presentation shall execute one or more Global Securities in
such aggregate principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with this Indenture; and payments
on the Securities issued as a Global Security will be made to the
Depositary; and
(ii) if any Preferred Securities are held in certificated form,
the related Definitive Securities may be presented to the Trustee by the
Property Trustee and any Preferred Security certificate which represents
Preferred Securities other than Preferred Securities in book-entry form
("Non Book-Entry Preferred Securities") will be deemed to represent
beneficial interests in Securities presented to the Trustee by the Property
Trustee having an aggregate principal amount equal to the aggregate
liquidation amount of the Non Book-Entry Preferred Securities until such
Preferred Security certificates are presented to the Security Registrar for
transfer or reissuance, at which time such Preferred Security certificates
will be cancelled and a Security, registered in the name of the holder of
the Preferred Security certificate or the transferee of the holder of such
Preferred Security certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Security certificate cancelled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance with
this Indenture. Upon the issuance of such Securities, Securities with an
equivalent aggregate principal amount that were presented by the Property
Trustee to the Trustee will be cancelled.
(b) The Global Securities shall represent the aggregate amount of
outstanding Securities from time to time endorsed thereon; provided, that the
--------
aggregate amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Security to reflect the amount of any
increase or decrease in the amount of outstanding Securities represented thereby
shall be made by the Trustee, in accordance with instructions given by the
Company as required by this Section 2.04.
(c) The Global Securities may be transferred, in whole but not in
part, only to the Depositary, another nominee of the Depositary, or to a
successor Depositary selected or approved by the Company or to a nominee of such
successor Depositary.
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(d) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or the Depositary has ceased to be
a clearing agency registered under the Exchange Act, and a successor Depositary
is not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, the Company will
execute, and the Trustee, upon receipt of a Company Order, will authenticate and
make available for delivery the Definitive Securities, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global Security. If there is
an Event of Default, the Depositary shall have the right to exchange the Global
Securities for Definitive Securities. In addition, the Company may at any time
determine that the Securities shall no longer be represented by a Global
Security. In the event of such an Event of Default or such a determination, the
Company shall execute, and subject to Section 2.06, the Trustee, upon receipt of
an Officers' Certificate evidencing such determination by the Company and a
Company Order, will authenticate and make available for delivery the Definitive
Securities, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of the Global Security in exchange for such Global
Security. Upon the exchange of the Global Security for such Definitive
Securities, in authorized denominations, the Global Security shall be cancelled
by the Trustee. Such Definitive Securities issued in exchange for the Global
Security shall be registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Definitive Securities to the Depositary for delivery to the Persons
in whose names such Definitive Securities are so registered.
SECTION 2.05 Interest.
(a) Each Security will bear interest at the rate of ___% per annum
(the "Coupon Rate") from the most recent date to which interest has been paid or
duly provided for or, if no interest has been paid or duly provided for, from
________ __, 2000, until the principal thereof becomes due and payable on the
next succeeding Interest Payment Date (as defined below), and at the Coupon Rate
on any overdue principal and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest,
compounded quarterly payable (subject to the provisions of Article XVI)
quarterly in arrears on the last day of March, June, September and December of
each year (each, an "Interest Payment Date") commencing on __________ __, 2000,
to the Person in whose name such Security or any predecessor Security is
registered, at the close of business on the regular record date for such
interest installment, which shall be the Business Day next preceding such
Interest Payment Date; provided, however, that in the event that the Preferred
Securities are no longer in book-entry only form or this Security (or one or
more predecessor Securities) are not represented by a Global Security, the
record date for such payment shall be the fifteenth day of the month in which
such payment is due.
(b) Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months and, for any period of less than a full
calendar quarter, the number of days lapsed in such quarter based upon 30-day
months. In the event that any Interest Payment Date falls on a day that is not
a Business Day, then payment of interest payable on such date will be made on
the next
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succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that if such next succeeding
Business Day falls in the next succeeding calendar year, then such payment shall
be made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date.
(c) During such time as the Property Trustee is the holder of any
Securities, the Company shall pay any additional amounts on the Securities as
may be necessary in order that the amount of Distributions then due and payable
by the Trust on the outstanding Trust Securities shall not be reduced as a
result of any additional taxes, duties, assessments and other governmental
charges to which East West Bancorp Capital Trust or the Property Trustee has
become subject as a result of a Tax Event ("Additional Sums"). Whenever in this
Indenture or the Securities there is a reference in any context to the payment
of principal of or interest on the Securities, 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,
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that the deferral of the payment of interest pursuant to Section 16.01 or the
Securities shall not defer the payment of any Additional Sums that may be due
and payable.
SECTION 2.06. Transfer and Exchange.
The Company shall cause to be kept at the Principal Office of the
Trustee a register in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. Such register is herein sometimes referred to as the
"Securities Register."
To permit registrations of transfers, the Company shall execute and
the Trustee shall authenticate Definitive Securities and Global Securities at
the Security Registrar's request. All Definitive Securities and Global
Securities issued upon any registration of transfer or exchange of Definitive
Securities or Global Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Definitive Securities or Global Securities surrendered upon
such registration of transfer or exchange.
Upon surrender for registration of transfer of any Security at the
office or agency of the Company designated for that purpose the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
series of any authorized denominations, of a like aggregate principal amount, of
the same original issue date and Stated Maturity Date and having the same terms.
At the option of the holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of a like
aggregate principal amount, of the same original issue date and Stated Maturity
Date and having the same terms, upon surrender of the
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Securities to be exchanged at such office or agency. Whenever any securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the holder making the exchange is
entitled to receive.
No service charge shall be made to a holder for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith.
The Company shall not be required to (i) issue, register the transfer
of or exchange Securities during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption or any notice of
selection of Securities for redemption under Article XIV hereof and ending at
the close of business on the day of such mailing; or (ii) register the transfer
of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
Prior to due presentment for the registration of a transfer of any
Security, the Trustee, the Company and any agent of the Trustee or the Company
may deem and treat the Person in whose name any Security is registered as the
absolute owner of such Security for the purpose of receiving payment of
principal of and interest on such Securities, neither the Trustee, nor the
Company nor any agent of the Trustee or the Company shall be affected by notice
to the contrary.
SECTION 2.07. Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, the Company shall issue and the
Trustee shall authenticate a replacement Security if the Trustee's requirements
for replacements of Securities are met. An indemnity bond must be supplied by
the holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any agent thereof or any authenticating agent
from any loss that any of them may suffer if a Security is replaced. The
Company or the Trustee may charge for its expenses in replacing a Security.
Every replacement Security is an obligation of the Company and shall
be entitled to all of the benefits of this Indenture equally and proportionately
with all other Securities duly issued hereunder.
SECTION 2.08. Temporary Securities.
Pending the preparation of Definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Securities that are printed, lithographed,
typewritten, mimeographed or otherwise reproduced, in any authorized
denomination, substantially of the tenor of the Definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers
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executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company shall cause Definitive
Securities to be prepared without unreasonable delay. The Definitive Securities
shall be printed, lithographed or engraved, or provided by any combination
thereof, or in any other manner permitted by the rules and regulations of any
applicable securities exchange, all as determined by the officers executing such
Definitive Securities. After the preparation of Definitive Securities, the
temporary Securities shall be exchangeable for Definitive Securities upon
surrender of the temporary Securities at the office or agency maintained by the
Company for such purpose pursuant to Section 3.02 hereof, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, in exchange therefor the same aggregate principal
amount of Definitive Securities of authorized denominations. Until so
exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as Definitive Securities.
SECTION 2.09. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Trustee and no one else shall cancel all Securities
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall retain or dispose of cancelled Securities in accordance
with its normal practices (subject to the record retention requirement of the
Exchange Act) unless the Company directs them to be returned to it. The Company
may not issue new Securities to replace Securities that have been redeemed or
paid or that have been delivered to the Trustee for cancellation.
SECTION 2.10. Defaulted Interest.
Any interest on any Security that is payable, but is not punctually
paid or duly provided for, 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 holder; and such
Defaulted Interest shall be paid by the Company, at its election, as provided in
clause (a) or clause (b) below:
(a) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their
respective Predecessor Securities) 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 such Security 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
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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 not be more
than 15 nor 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 Securityholder at his or her address as it appears in the Security
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 mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered on such special record
date and shall be no longer payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed practicable by the
Trustee.
SECTION 2.11. CUSIP Numbers.
The Company in issuing the Securities 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 Securityholders; provided that any such notice
--------
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal and Interest.
The Company covenants and agrees for the benefit of the holders of the
Securities that it will duly and punctually pay or cause to be paid the
principal of and interest on the Securities at the place, at the respective
times and in the manner provided herein. Except as provided in Section 2.03,
each installment of interest on the Securities may be paid by mailing checks for
such interest payable to the order of the holder of Security entitled thereto as
they appear in the Security Register. The Company further covenants to pay any
and all amounts, including, without limitation,
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Additional Sums, as may be required pursuant to Section 2.05(c), and Compounded
Interest, as may be required pursuant to Section 16.01.
By 10:00 a.m. New York time on the date specified herein for the
payment of principal and interest, the Company will deposit with the Trustee or
with one or more paying agents an amount of money sufficient to cover the
required payment with respect to the Securities.
SECTION 3.02. Offices for Notices and Payments, etc.
So long as any of the Securities remain outstanding, the Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where the Securities may be presented for payment, an office or agency where the
Securities may be presented for registration of transfer and for exchange as in
this Indenture provided and an office or agency where notices and demands to or
upon the Company in respect of the Securities or of this Indenture may be
served. The Company will give to the Trustee written notice of the location of
any such office or agency and of any change of location thereof. Until
otherwise designated from time to time by the Company in a notice to the
Trustee, any such office or agency for all of the above purposes shall be the
Principal Office of the Trustee. In case the Company shall fail to maintain any
such office or agency in the Borough of Manhattan, The City of New York, or
shall fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
Principal Office of the Trustee.
In addition to any such office or agency, the Company may from time to
time designate one or more offices or agencies outside the Borough of Manhattan,
The City of New York, where the Securities may be presented for payment,
registration of transfer and for exchange in the manner provided in this
Indenture, and the Company may from time to time rescind such designation, as
the Company may deem desirable or expedient; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain any such office or agency in the Borough of Manhattan,
The City of New York, for the purposes above mentioned. The Company will give
to the Trustee prompt written notice of any such designation or rescission
thereof.
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 3.04. Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent other than the
Trustee with respect to the Securities, it will cause such paying
agent to execute and
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deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provision of this Section
3.04,
(1) that it will hold all sums held by it as such agent for the
payment of the principal of or interest (including
Additional Sums and Com pounded Interest, if any) on the
Securities (whether such sums have been paid to it by the
Company or by any other obligor on the Securities) in trust
for the benefit of the holders of the Securities; and
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities) to make
any payment of the principal of or interest (including
Additional Sums and Compounded Interest, if any) on the
Securities when the same shall be due and payable.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of or interest (including
Additional Sums and Compounded Interest, if any) on the
Securities, set aside, segregate and hold in trust for the
benefit of the holders of the Securities a sum sufficient to pay
such principal or interest (including Additional Sums and
Compounded Interest, if any) so becoming due and will notify the
Trustee of any failure to take such action and of any failure by
the Company (or by any other obligor under the Securities) to
make any payment of the principal of or interest (including
Additional Sums and Compounded Interest, if any) on the
Securities when the same shall become due and payable. Whenever
the Company shall have one or more paying agents for the
Securities, it will, on or prior to each due date of the
principal of or interest (including Additional Sums and
Compounded Interest, if any) on the Securities, deposit with the
paying agent a sum sufficient to pay the principal or interest
(including Additional Sums and Compounded Interest, if any) so
becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal or interest (including
Additional Sums and Compounded Interest, if any) and (unless such
paying agent is the Trustee) the Company will promptly notify the
Trustee of this action or failure so to act.
(c) Anything in this Section 3.04 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a
satisfaction and discharge with respect to the Securities
hereunder, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust for such Securities by the
Trustee or any paying agent hereunder, as required by this
Section 3.04, such sums to be held by the Trustee upon the trusts
herein contained.
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(d) Anything in this Section 3.04 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section
3.04 is subject to Sections 11.03 and 11.04.
SECTION 3.05. Certificate to Trustee.
The Company will deliver to the Trustee on or before 120 days after
the end of each fiscal year in each year, commencing with the first fiscal year
ending after the date hereof, so long as Securities are outstanding hereunder,
an Officers' Certificate, one of the signers of which shall be the principal
executive, principal financial or principal accounting officer of the Company,
stating that in the course of the performance by the signers of their duties as
officers of the Company they would normally have knowledge of any default by the
Company in the performance of any covenants and conditions contained herein,
stating whether or not they have knowledge of any such default and, if so,
specifying each such default of which the signers have knowledge and the nature
thereof. For purposes of this section such default shall be determined without
regard to any period of grace or requirement of notice.
SECTION 3.06. Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain outstanding,
consolidate with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other Person unless the provisions of
Article X hereof are complied with.
SECTION 3.07. Limitation on Dividends.
The Company will not (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 capital stock (which includes common and preferred stock),
(ii) make any payment of principal, premium, if any, or interest on or repay or
repurchase or redeem any debt securities of the Company (including Other
Debentures) that rank pari passu with or junior in right of payment to the
Securities or (iii) make any guarantee payments with respect to any guarantee by
the Company of the debt securities of any Subsidiary of the Company (including
Other Guarantees) if such guarantee ranks pari passu or junior in right of
payment to the Securities (other than (a) dividends or distributions in shares
of, or options, warrants or rights to subscribe for or purchase shares of,
Common Stock of the Company, (b) any declaration of a dividend in connection
with the implementation of a stockholder's rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, (c) payments under the Preferred Securities Guarantee,
(d) the purchase of fractional shares resulting from a reclassification of the
Company's capital stock, (e) the purchase of fractional interests in shares of
the Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged and (f)
purchases of Common Stock related to the issuance of Common Stock or rights
under any of the Company's benefit plans for its directors, officers or
employees or any of the Company's dividend reinvestment plans), if at such
time(1) there shall have occurred any event that would constitute an
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Event of Default, (2) if such Securities are held by the Property Trustee and
the Company shall be in default with respect to its payment obligations under
the Preferred Securities Guarantee or (3) the Company shall have given notice of
its election of the exercise of its right to extend the interest payment period
pursuant to Section 16.01 and any such extension shall be continuing.
SECTION 3.08. Covenants as to East West Bancorp Capital Trust
In the event Securities are issued to East West Bancorp Capital Trust
or a trustee of such Trust in connection with the issuance of Trust Securities
by East West Bancorp Capital Trust, for so long as such Trust Securities remain
outstanding, the Company (i) will maintain 100% direct or indirect ownership of
the Common Securities of East West Bancorp Capital Trust; provided, however,
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that any successor of the Company, permitted pursuant to Article X, may succeed
to the Company's ownership of such Common Securities, (ii) will not cause, as
Sponsor of the Trust, or permit, as holder of the Common Securities, the
dissolution or winding-up of the Trust, except in connection with the
distribution of the Junior Subordinated Debentures or certain mergers,
consolidations or amalgamation, each as permitted by the Declaration, (iii) will
timely perform its duties as Sponsor of the Trust, (iv) will use its reasonable
best efforts to cause East West Bancorp Capital Trust (a) to remain a business
trust, except in connection with a distribution of Securities to the holders of
Trust Securities in liquidation of the Trust, the redemption of all of the Trust
Securities of East West Bancorp Capital Trust or certain mergers, consolidations
or amalgamations, each as permitted by the Declaration, and (b) to otherwise
continue to be treated as a grantor trust and not an association taxable as a
corporation for United States federal income tax purposes and (v) will use its
reasonable best efforts to cause each holder of Trust Securities to be treated
as owning an undivided beneficial interest in the Securities.
SECTION 3.09. Payment of Expenses.
In connection with the offering, sale and issuance of the Securities
to East West Bancorp Capital Trust and in connection with the sale of the Trust
Securities by East West Bancorp Capital Trust, the Company, in its capacity as
borrower with respect to the Securities, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Securities, including commissions to the underwriters payable
pursuant to the Underwriting Agreement and compensation of the Trustee in
accordance with the provisions of Section 6.06;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of East West Bancorp
Capital Trust, the offering, sale and issuance of the Trust Securities
(including commissions to the underwriters in connection therewith), the fees
and expenses of the Property Trustee and the Delaware Trustee, the costs and
expenses relating to the operation of East West Bancorp Capital Trust, including
without limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses
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incurred in connection with the acquisition, financing, and disposition of
assets of East West Bancorp Capital Trust;
(c) be primarily and fully liable for any indemnification obligations
arising with respect to the Declaration;
(d) pay any and all taxes (other than United States withholding taxes
attributable to East West Bancorp Capital Trust or its assets) and all
liabilities, costs and expenses with respect to such taxes of the Trust; and
(e) pay all other fees, expenses, debts and obligations (other than
in respect of principal and interest on the Trust Securities) related to East
West Bancorp Capital Trust.
SECTION 3.10. Payment Upon Resignation or Removal.
Upon termination of this Indenture or the removal or resignation of
the Trustee, unless otherwise stated, the Company shall pay to the Trustee all
amounts accrued and owing to the date of such termination, removal or
resignation. Upon termination of the Declaration or the removal or resignation
of the Delaware Trustee or the Property Trustee, as the case may be, pursuant to
Section 5.7 of the Declaration, the Company shall pay to the Delaware Trustee or
the Property Trustee, as the case may be, all amounts accrued and owing to the
date of such termination, removal or resignation.
SECTION 3.11. Corporate Existence.
The Company will, subject to the provisions of Article X, at all times
maintain its corporate existence and right to carry on business and will duly
procure all renewals and extensions thereof, and , to the extent necessary or
desirable in the operation of its business, will use its best efforts to
maintain, preserve and renew all of its rights, powers, privileges and
franchises.
SECTION 3.12. Notice of Default.
The Company shall file with the Trustee written notice of any Event of
Default within 30 days of its becoming aware of such Event of Default or an
event which, with notice or the lapse of time or both, would constitute an Event
of Default.
SECTION 3.13. Listing on an Exchange.
If the Securities are to be distributed to the holders of the
Preferred Securities in connection with a Dissolution Event, the Company will,
if the Securities are not already so listed, use its best efforts to list such
Securities on the NASDAQ National Market or on such other exchange or other
organizations as the Preferred Securities are then listed.
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ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists.
The Company covenants and agrees that it will furnish or cause to be
furnished to the Trustee:
(a) on a quarterly basis on each regular record date for the
Securities, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Securityholders as of
such record date; 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,
except that, no such lists need be furnished so long as the Trustee is
in possession thereof by reason of its acting as Security registrar.
SECTION 4.02. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the
holders of the Securities (1) contained in the most recent list
furnished to it as provided in Section 4.01 or (2) received by it
in the capacity of Securities registrar (if so acting) hereunder.
The Trustee may destroy any list furnished to it as provided in
Section 4.01 upon receipt of a new list so furnished.
(b) In case three or more holders of Securities (hereinafter referred
to as "applicants") apply in writing to the Trustee and furnish
to the Trustee reasonable proof that each such applicant has
owned a Security for a period of at least six months preceding
the date of such application, and such application states that
the applicants desire to communicate with other holders of
Securities or with holders of all Securities with respect to
their rights under this Indenture and is accompanied by a copy of
the form of proxy or other communication which such applicants
propose to transmit, then the Trustee shall within five Business
Days after the receipt of such application, at its election,
either:
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(1) afford such applicants access to the information preserved at the
time by the Trustee in accordance with the provisions of
subsection (a) of this Section 4.02, or
(2) inform such applicants as to the approximate number of holders of
all Securities, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance
with the provisions of subsection (a) of this Section 4.02, and
as to the approximate cost of mailing to such Securityholders the
form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written
request of such applicants, mail to each Securityholder whose
name and address appear in the information preserved at the time
by the Trustee in accordance with the provisions of subsection
(a) of this Section 4.02 a copy of the form of proxy or other
communication which is specified in such request with reasonable
promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file
with the Commission, together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests
of the holders of Securities of such series or all Securities, as
the case may be, or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections
specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall
enter an order so declaring, the Trustee shall mail copies of
such material to all such Securityholders with reasonable
promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation
or duty to such applicants respecting their application.
(c) Each and every holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any paying agent shall be held
accountable by reason of the disclosure of any such information
as to the names and addresses of the holders of Securities in
accordance with the provisions of subsection (b) of this Section
4.02, regardless of the source from which such information was
23
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derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under
said subsection (b).
SECTION 4.03. Reports by Company.
(a) The Company covenants and agrees to file with the Trustee, within
15 days after the date on which the Company is required to file
the same with the Commission, copies of the annual reports and of
the information, documents and other reports (or copies of such
portions of any of the foregoing as said Commission may from time
to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to
either of such sections, then to file with the Trustee and the
Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in respect of
a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations. The Company also covenants and agrees to comply with
the provisions of Section 314(a) of the Trust Indenture Act.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations
prescribed from time to time by said Commission, such additional
information, documents and reports with respect to compliance by
the Company with the conditions and covenants provided for in
this Indenture as may be required from time to time by such rules
and regulations.
(c) The Company covenants and agrees to transmit by mail to all
holders of Securities, as the names and addresses of such holders
appear upon the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the
Company pursuant to subsections (a) and (b) of this Section 4.03
as may be required by rules and regulations prescribed from time
to time by the Commission.
(d) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information
contained therein, including the Company's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers' Certificates).
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SECTION 4.04. Reports by the Trustee.
(a) The Trustee shall transmit to Securityholders such reports
concerning the Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto. If required by
Section 313(a) of the Trust Indenture Act, the Trustee shall,
within sixty days after each May 15 following the date of this
Indenture, commencing May 15, 2000, deliver to Securityholders a
brief report, dated as of such May 15, which complies with the
provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with
each stock exchange, if any, upon which the Securities are
listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when the Securities are listed
on any stock exchange or any delisting thereof.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.01. Events of Default.
One or more of the following events of default shall constitute an
Event of Default hereunder:
(a) default in the payment of any interest (including Compounded
Interest or Additional Sums, if any) upon any Security or any
Other Debentures when it becomes due and payable, and continuance
of such default for a period of 30 days; provided, however, that
--------
a valid extension of an interest payment period by the Company in
accordance with the terms hereof shall not constitute a default
in the payment of interest for this purpose; or
(b) default in the payment of all or any part of the principal of any
Security or any Other Debentures as and when the same shall
become due and payable either at maturity, upon redemption, by
declaration of acceleration of maturity or otherwise; or
(c) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant
or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 60 days
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after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by
the holders of at least 25% in aggregate principal amount of the
outstanding 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
(d) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company in an involuntary
case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Company or for any substantial part of
its property, or ordering the winding-up or liquidation of its
affairs and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(e) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the
appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar
official) of the Company or of any substantial part of its
property, or shall make any general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they
become due.
If an Event of Default with respect to Securities at the time
outstanding occurs and is continuing (other than an Event of Default specified
in Section 5.01(d) or 5.01(e)), then in every such case the Trustee or the
holders of not less than 25% in aggregate principal amount of the Securities
then outstanding may declare the principal amount of all Securities to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the holders of the outstanding Securities), and upon any
such declaration the same shall become immediately due and payable. If the
Trustee or Securityholders fail to declare the principal of all of the
Securities due and payable upon such an Event of Default, so long as the
Property Trustee is holding the Debentures on behalf of East West Bancorp
Capital Trust, the holders of at least 25% in liquidation amount of the
Preferred Securities then outstanding will have the right to declare the
Securities immediately due and payable. If an Event of Default specified in
Section 5.01(d) or 5.01(e) occurs and is continuing, the principal amount of all
Securities shall become immediately due and payable without any declaration or
other act on the part of the Trustee or the holders of Securities.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal of the Securities shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, (i)
the Company shall pay or shall deposit with the Trustee a sum sufficient to pay
(A) all matured installments of interest (including Compounded Interest and
Additional Sums, if any) upon all the Securities and the principal of any and
all Securities which shall have become
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due otherwise than by acceleration (with interest upon such principal and, to
the extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate as the rate of interest
specified in the Securities to the date of such payment or deposit) and (B) such
amount as shall be sufficient to cover compensation due to the Trustee and each
predecessor Trustee, their respective agents, attorneys and counsel, pursuant to
Section 6.06, and (ii) any and all Events of Default under the Indenture, other
than the non-payment of the principal of the Securities which shall have become
due solely by such declaration of acceleration, shall have been cured, waived or
otherwise remedied as provided herein, then, in every such case, the holders of
a majority in aggregate principal amount of the Securities then outstanding, by
written notice to the Company and to the Trustee, may rescind and annul such
declaration and its consequences, but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the Trustee and the holders of the Securities shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the Trustee and the holders of the
Securities shall continue as though no such proceeding had been taken.
SECTION 5.02. Payment of Securities on Default; Suit Therefor.
The Company covenants that (a) in case default shall be made in the
payment of any installment of interest (including Compounded Interest and
Additional Sums, if any) upon any of the Securities as and when the same shall
become due and payable, and such default shall have continued for a period of 30
days, or (b) in case default shall be made in the payment of the principal on
any of the Securities as and when the same shall have become due and payable,
whether at maturity of the Securities or upon redemption or by declaration or
otherwise, then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Securities, the whole amount that
then shall have become due and payable on all such Securities for principal or
interest (including Compounded Interest and Additional Sums, if any) or both, as
the case may be, with interest upon the overdue principal and (to the extent
that payment of such interest is enforceable under applicable law and, if the
Securities are held by East West Bancorp Capital Trust or a trustee of such
trust, without duplication of any other amounts paid by East West Bancorp
Capital Trust or a trustee in respect thereof) upon the overdue installments of
interest (including Compounded Interest and Additional Sums, if any) at the rate
borne by the Securities; and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection, including a
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
any other amount due to the Trustee pursuant to Section 6.06.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to
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institute any actions or proceedings at law or in equity for the collection of
the sums so due and unpaid, and may prosecute any such action or proceeding to
judgment or final decree, and may enforce any such judgment or final decree
against the Company or any other obligor on the Securities and collect in the
manner provided by law out of the property of the Company or any other obligor
on the Securities wherever situated the moneys adjudged or decreed to be
payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Securities under
Title 11, United States Code, or any other applicable law, or in case a receiver
or trustee shall have been appointed for the property of the Company or such
other obligor, or in the case of any other similar judicial proceedings relative
to the Company or other obligor upon the Securities, or to the creditors or
property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of the Securities 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 pursuant to the provisions of this Section 5.02,
shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of principal
and interest owing and unpaid in respect of the Securities and, in case of any
judicial proceedings, to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for amounts due to the Trustee pursuant to 6.06) and of the
Securityholders allowed in such judicial proceedings relative to the Company or
any other obligor on the Securities, or to the creditors or property of the
Company or such other obligor, unless prohibited by applicable law and
regulations, to vote on behalf of the holders of the Securities in any election
of a trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and to collect and receive any moneys or
other property payable or deliverable on any such claims, and to distribute the
same after the deduction of its charges and expenses; and any receiver, assignee
or trustee in bankruptcy or reorganization is hereby authorized by each of the
Securityholders to make such payments to the Trustee, and, in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be sufficient to
cover reasonable compensation to the Trustee, each predecessor Trustee and their
respective agents, attorneys and counsel, and all other amounts due to the
Trustee pursuant to Section 6.06.
Nothing herein contained shall be construed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any holder thereof or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof on any trial or
other proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall be for the ratable benefit of the holders of the
Securities.
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In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Securities, and it shall not be necessary to make any holders of the
Securities parties to any such proceedings.
SECTION 5.03. Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the Securities in respect of which moneys have
been collected, and stamping thereon the payment, if only partially paid, and
upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection applicable
to the Securities and all other amounts due to the Trustee under Section 6.06;
Second: To the payment of all Senior and Subordinate Indebtedness of
the Company if and to the extent required by Article XV;
Third: To the payment of the amounts then due and unpaid upon
Securities for principal of and interest (including Compounded Interest and
Additional Sums, if any) on the Securities, in respect of which or for the
benefit of which money has been collected, ratably, without preference of
priority of any kind, according to the amounts due on such Securities for
principal and interest, respectively; and
Fourth: To the Company.
SECTION 5.04. Proceedings by Securityholders.
No holder of any Security shall have any right by virtue of or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof with respect to the
Securities specifying such Event of Default, as hereinbefore provided, and
unless also the holders of not less than 25% in aggregate principal amount of
the Securities then outstanding shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such action,
suit or proceeding, it being understood and intended, and being expressly
covenanted by the taker and holder of every Security with every other taker and
holder and the Trustee, that no one or more holders of Securities shall have any
right in any manner whatever by virtue of or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of any other holder of
Securities,
29
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or to obtain or seek to obtain priority over or preference to any other such
holder, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all holders of
Securities.
Notwithstanding any other provisions in this Indenture, however, the
right of any holder of any Security to receive payment of the principal of and
interest (including Compounded Interest and Additional Sums, if any) on such
Security, on or after the same shall have become due and payable, or to
institute suit for the enforcement of any such payment, shall not be impaired or
affected without the consent of such holder. For the protection and enforcement
of the provisions of this Section, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
The Company and the Trustee acknowledge that pursuant to the
Declaration, the holders of Preferred Securities are entitled, in the
circumstances and subject to the limitations set forth therein, to commence a
Direct Action with respect to any Event of Default under this Indenture and the
Securities.
SECTION 5.05. Proceedings by Trustee.
In case an Event of Default occurs with respect to Securities and is
continuing, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 5.06. Remedies Cumulative and Continuing.
All powers and remedies given by this Article V to the Trustee or to
the Securityholders shall, to the extent permitted by law, be deemed cumulative
and not exclusive of any other powers and remedies available to the Trustee or
the holders of the Securities, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to the Securities, and no delay
or omission of the Trustee or of any holder of any of the Securities to exercise
any right or power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 5.04, every power and remedy given by this Article V or by
law to the Trustee or to the Securityholders may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
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SECTION 5.07. Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders.
The holders of a majority in aggregate principal amount of the
Securities at the time outstanding 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,
--------
however, that (subject to the provisions of Section 6.01) the Trustee shall have
- -------
the right to decline to follow any such direction if the Trustee shall determine
that the action so directed would be unjustly prejudicial to the holders not
taking part in such direction or if the Trustee being advised by counsel
determines that the action or proceeding so directed may not lawfully be taken
or if the Trustee in good faith by its board of directors or trustees, executive
committee, or a trust committee of directors or trustees and/or Responsible
Officers shall determine that the action or proceedings so directed would
involve the Trustee in personal liability. Prior to any declaration
accelerating the maturity of the Securities, the holders of a majority in
aggregate principal amount of the Securities at the time outstanding may on
behalf of the holders of all of the Securities waive any past default or Event
of Default and its consequences except a default (a) in the payment of principal
of or interest (including Compounded Interest and Additional Sums, if any) on
any of the Securities or (b) in respect of covenants or provisions hereof which
cannot be modified or amended without the consent of the holder of each Security
affected; provided, however, that if the Securities are held by the Property
-------- -------
Trustee, such waiver or modification to such waiver shall not be effective until
the holders of a majority in aggregate liquidation amount of Trust Securities
shall have consented to such waiver or modification to such waiver; provided
--------
further, that if the consent of the holder of each outstanding Security is
- -------
required, such waiver shall not be effective until each holder of the Trust
Securities shall have consented to such waiver. Upon any such waiver, the
default covered thereby shall be deemed to be cured for all purposes of this
Indenture and the Company, the Trustee and the holders of the Securities shall
be restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon. Whenever any default or Event of Default hereunder shall
have been waived as permitted by this Section 5.07, said default or Event of
Default shall for all purposes of the Securities and this Indenture be deemed to
have been cured and to be not continuing.
SECTION 5.08. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence of a default
with respect to the Securities known to a Responsible Officer of the Trustee,
mail to all Securityholders, as the names and addresses of such holders appear
upon the Security Register, notice of all defaults known to the Trustee, unless
such defaults shall have been cured before the giving of such notice; and
provided that, except in the case of default in the payment of the principal of
or interest (including Compounded Interest or Additional Sums, if any) on any of
the Securities, 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 determines
that the withholding of such notice is in the interests of the Securityholders;
and provided further, that in the case of any default of the character specified
in Section 5.01(c) no such notice to
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Securityholders shall be given until at least 60 days after the occurrence
thereof but shall be given within 90 days after such occurrence.
SECTION 5.09. Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Security
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, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 5.09 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than 10% in aggregate principal
amount of the Securities outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or
interest (including Compounded Interest and Additional Sums, if any) on any
Security against the Company on or after the same shall have become due and
payable.
SECTION 5.10. Waiver of Stay, Extension or Usury 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 stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, which would
prohibit or forgive the Company from paying all or any portion of the principal
or any interest on (including Additional Sums and Compounded Interest, if any)
any such amounts, as contemplated herein, or 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
laws and covenants that 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.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee.
With respect to the holders of the Securities issued hereunder, the
Trustee, prior to the occurrence of an Event of Default and after the curing or
waiving of all Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default has occurred (which has not been cured
or
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waived) 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 man would exercise or use under the circumstances in the conduct of
his own affairs.
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
(a) prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default which may have
occurred,
(1) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for
the performance of such duties and obligations 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 the part of the Trustee, the
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
Trustee and conforming to the requirements of this
Indenture; but, in the case of any such certificates or
opinions which by any provision 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 (but
need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein);
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers, unless it shall
be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) 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 the Securityholders pursuant to Section 5.07,
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.
None of the provisions contained in this Indenture shall require the
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 there is reasonable ground for believing that
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the repayment of such funds or liability is not reasonably assured to it under
the terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
SECTION 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, note, debenture 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) any request, direction, order or demand of the Company mentioned
herein may be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically
prescribed); and any Board Resolution may be evidenced to the
Trustee by a copy thereof certified by the Secretary or an
Assistant Secretary of the Company;
(c) the Trustee may consult with counsel of its selection and any
advice or 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
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders, pursuant to the
provisions of this Indenture, unless such Securityholders shall
have offered to the Trustee reasonable and sufficient security or
indemnity against the costs, expenses and liabilities which may
be incurred therein or thereby; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default with respect to the Securities
(that has not been cured or waived) to exercise with respect to
the Securities 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 man would exercise or use under the
circumstances in the conduct of his own affairs.
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this
Indenture; nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of
Default (that has not been cured or waived), to exercise such of
the rights and powers vested in it by this Indenture, and to use
the same degree
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of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own
affairs;
(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, consent,
order, approval, bond, debenture, coupon or other paper or
document, unless requested in writing to do so by the holders of
a majority in aggregate principal amount of the outstanding
Securities; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the
terms of this Indenture, the Trustee may require reasonable
indemnity against such expense or liability as a condition to so
proceeding;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through
agents (including any Authenticating Agent) or attorneys, and the
Trustee shall not be responsible for any misconduct or negligence
on the part of any such agent or attorney appointed by it with
due care;
(h) the Trustee shall not be charged with knowledge of any Default or
Event of Default with respect to the Securities unless (1) such
default is a default under Sections 5.01(a) (other than a default
with respect to the payment of Compounded Interest or Additional
Sums) and 5.01(b) of the Indenture and the Trustee is the paying
agent hereunder, (2) a Responsible Officer shall have actual
knowledge of such Default or Event of Default or (3) written
notice of such Default or Event of Default shall have been given
to the Trustee at the Principal Office of the Trustee by the
Company or any other obligor on the Securities or by any holder
of the Securities and such notice references the Securities and
this Indenture;
(i) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith, without negligence or willful
misconduct and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Indenture; and
(j) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
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SECTION 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities (except in the
certificate of authentication of the Trustee or the Authenticating Agent) shall
be taken as the statements of the Company and the Trustee and the Authenticating
Agent assume no responsibility for the correctness of the same. The Trustee and
the Authenticating Agent make no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee and the
Authenticating Agent shall not be accountable for the use or application by the
Company of any Securities or the proceeds of any Securities authenticated and
delivered by the Trustee or the Authenticating Agent in conformity with the
provisions of this Indenture.
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Securities.
The Trustee or any Authenticating Agent or any paying agent or any
transfer agent or any Security registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights it
would have if it were not Trustee, Authenticating Agent, paying agent, transfer
agent or Security registrar.
SECTION 6.05. Moneys to be Held in Trust.
Subject to the provisions of Section 11.04, all moneys received by the
Trustee or any paying agent shall, until used or applied as herein provided, be
held in trust for the purpose for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
and any paying agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
So long as no Event of Default shall have occurred and be continuing, all
interest allowed on any such moneys shall be paid from time to time upon the
written order of the Company, signed by the Chairman of the Board of Directors,
the President, a Vice President, the Treasurer or an Assistant Treasurer of the
Company.
SECTION 6.06. Compensation and Expenses of Trustee.
The Company, as issuer of Securities under this Indenture, covenants
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, such compensation as shall be agreed to in writing between the
Company and the Trustee (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust), and the Company
will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ) except any such expense, disbursement or advance as may
arise from its negligence or bad faith. The Company also covenants to indemnify
each of the Trustee or any predecessor Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against, any and all loss,
damage, claim, liability or expense including taxes (other than
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taxes based on the income of the Trustee) incurred without negligence or bad
faith on the part of the Trustee and arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim of liability in the
premises. The obligations of the Company under this Section 6.06 to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular
Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.01(d) or Section 5.01(e), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the resignation or
removal of the Trustee and the defeasance or other termination of this
Indenture.
SECTION 6.07. Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and 6.02, whenever in
the administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
omitting any action hereunder, such matter (unless other evidence in respect
thereof is herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken or omitted by
it under the provisions of this Indenture upon the faith thereof.
SECTION 6.08. Conflicting Interest of Trustee.
If the Trustee has or shall acquire any "conflicting interest" within
the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
SECTION 6.09. Eligibility of Trustee.
The Trustee hereunder shall at all times be a corporation organized
and doing business under the laws of the United States of America or any state
or territory thereof or of the District of Columbia or a corporation or other
Person permitted to act as trustee by the Commission authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000) and subject to supervision or
examination by federal, state, territorial, or District of Columbia authority.
If such corporation publishes reports of
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condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 6.09 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.
The Company may not, nor may any Person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as
Trustee.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
SECTION 6.10. Resignation or Removal of Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign by giving written notice of such resignation
to the Company and by mailing notice thereof to the holders of
the Securities at their addresses as they shall appear on the
Security register. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee or trustees by
written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 60 days after the
mailing of such notice of resignation to the affected
Securityholders, the resigning Trustee, at the expense of the
Company, may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Securityholder who has
been a bona fide holder of a Security for at least six months
may, subject to the provisions of Section 5.09, on behalf of
himself and all others similarly situated, petition any such
court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
Section 6.08 after written request therefor by the Company
or by any Securityholder who has been a bona fide holder of
a Security or Securities for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.09 and shall fail to resign
after written request therefor by the Company or by any such
Securityholder, or
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(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, or
(4) the Trustee shall commence a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or
any other applicable Federal or state bankruptcy, insolvency
or similar law or shall consent to the appointment of or
taking possession by a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or similar official) of the
Trustee or its property or affairs, or shall make an
assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they
become due, or shall take corporate action in furtherance of
any such action.
then, in any such case, the Company may remove the Trustee and
appoint a successor trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the
provisions of Section 5.09, any Securityholder who has been a
bona fide holder of a Security 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. Such court may
thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities at the time outstanding may at any time remove the
Trustee and nominate a successor trustee, which shall be deemed
appointed as successor trustee unless within 10 days after such
nomination the Company objects thereto or if no successor trustee
shall have been so appointed and shall have accepted appointment
within 30 days after such removal, in which case the Trustee so
removed or any Securityholder, upon the terms and conditions and
otherwise as in subsection (a) of this Section 6.10 provided, may
petition any court of competent jurisdiction for an appointment
of a successor trustee. If a successor trustee shall not have
accepted appointment within 30 days after the removal of the
Trustee, the Trustee, at the expense of the Company, may petition
any court of competent jurisdiction for the appointment of a
successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this
Section 6.10 shall become
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effective upon acceptance of appointment by the successor trustee
as provided in Section 6.11.
(e) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities and each
appointment of a successor Trustee with respect to the Securities
to all holders of Securities. Each notice shall include the name
of the successor Trustee and the address of its Corporate Trust
Office.
SECTION 6.11. Acceptance by Successor Trustee.
Any successor trustee appointed as provided in Section 6.10 shall
execute, acknowledge and deliver to the Company and to its predecessor trustee
an instrument accepting such appointment hereunder, 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, duties and obligations of its predecessor
hereunder, with like effect as if originally named as trustee herein; but,
nevertheless, on the written request of the Company or of the successor trustee,
the trustee ceasing to act shall, upon payment of any amounts then due it
pursuant to the provisions of Section 6.06, execute and deliver an instrument
transferring to such successor trustee all the rights and powers of the trustee
so ceasing to act and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such retiring trustee thereunder. Upon
request of any such successor trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.06.
No successor trustee shall accept appointment as provided in this
Section 6.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 6.08 and eligible under the
provisions of Section 6.09.
Upon acceptance of appointment by a successor trustee as provided in
this Section 6.11, the Company shall mail notice of the succession of such
trustee hereunder to the holders of Securities at their addresses as they shall
appear on the Security register. If the Company fails to mail such notice
within 10 days after the acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Company.
SECTION 6.12. Succession by Merger, etc.
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 of the
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corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any Securities shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor trustee; and in all such cases such certificates shall have the full
force which the Securities or this Indenture elsewhere provides that the
certificate of the Trustee shall have; provided, however, that the right to
adopt the certificate of authentication of any predecessor Trustee or
authenticate Securities in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
SECTION 6.13. Limitation on Rights of Trustee as a Creditor.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent included
therein.
SECTION 6.14. Authenticating Agents.
There may be one or more Authenticating Agents appointed by the
Trustee upon the request of the Company with power to act on its behalf and
subject to its direction in the authentication and delivery of Securities issued
upon exchange or transfer thereof as fully to all intents and purposes as though
any such Authenticating Agent had been expressly authorized to authenticate and
deliver Securities; provided, that the Trustee shall have no liability to the
--------
Company for any acts or omissions of the Authenticating Agent with respect to
the authentication and delivery of Securities. Any such Authenticating Agent
shall at all times be a corporation organized and doing business under the laws
of the United States or of any state or territory thereof or of the District of
Columbia authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of at least $50,000,000 and being subject to
supervision or examination by federal, state, territorial or District of
Columbia authority. If such corporation publishes reports of condition at least
annually pursuant to law or the requirements of such authority, then for the
purposes of this Section 6.14 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. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect herein specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to
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the corporate trust business of any Authenticating Agent, shall be the successor
of such Authenticating Agent hereunder, if such successor corporation is
otherwise eligible under this Section 6.14 without the execution or filing of
any paper or any further act on the part of the parties hereto or such
Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any Authenticating Agent by giving written notice
of termination 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
any Authenticating Agent shall cease to be eligible under this Section 6.14, the
Trustee may, and upon the request of the Company shall, promptly appoint a
successor Authenticating Agent eligible under this Section 6.14, shall give
written notice of such appointment to the Company and shall mail notice of such
appointment to all Securityholders as the names and addresses of such holders
appear on the Security Register. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent herein.
The Company, as borrower, agrees to pay to any Authenticating Agent
from time to time reasonable compensation for its services. Any Authenticating
Agent shall have no responsibility or liability for any action taken by it as
such in accordance with the directions of the Trustee.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a
specified percentage in aggregate principal amount of the Securities may take
any action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action) the fact that at
the time of taking any such action the holders of such specified percentage have
joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by such Securityholders in person or by
agent or proxy appointed in writing, or (b) by the record of such holders of
Securities voting in favor thereof at any meeting of such Securityholders duly
called and held in accordance with the provisions of Article VIII, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of such Securityholders.
If the Company shall solicit from the Securityholders any request,
demand, authorization, direction, notice, consent, waiver or other action, the
Company may, at its option, as evidenced by an Officers' Certificate, fix in
advance a record date for the determination of
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Securityholders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other action, but the Company shall have no
obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
action, and for that purpose the outstanding Securities shall be computed as of
the record date; provided, however, that no such authorization, agreement or
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consent by such Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.
SECTION 7.02. Proof of Execution by Securityholders.
Subject to the provisions of Section 6.01, 6.02 and 8.05, proof of the
execution of any instrument by a Securityholder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee. The ownership of Securities shall be proved by the Security
Register or by a certificate of the Security registrar. The Trustee may require
such additional proof of any matter referred to in this Section as it shall deem
necessary.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 8.06.
SECTION 7.03. Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any Security,
the Company, the Trustee, any Authenticating Agent, any paying agent, any
transfer agent and any Security registrar may deem the person in whose name such
Security shall be registered upon the Security Register to be, and may treat him
as, the absolute owner of such Security (whether or not such Security shall be
overdue) for the purpose of receiving payment of or on account of the principal
of and (subject to Section 2.05) interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any Authenticating Agent
nor any paying agent nor any transfer agent nor any Security registrar shall be
affected by any notice to the contrary. All such payments so made to any holder
for the time being or upon his order shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Security.
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SECTION 7.04. Securities Owned by Company Deemed Not Outstanding.
In determining whether the holders of the requisite aggregate
principal amount of Securities have concurred in any direction, consent or
waiver under this Indenture, Securities which are owned by the Company or any
other obligor on the Securities or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any other obligor on the Securities shall be disregarded and deemed
not to be outstanding for the purpose of any such determination; provided that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Securities which a
Responsible Officer of the Trustee actually knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as outstanding for the purposes of this Section 7.04 if the pledgee
shall establish to the satisfaction of the Trustee the pledgee's right to vote
such Securities and that the pledgee is not the Company or any such other
obligor or Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any such other obligor.
In the case of a dispute as to such right, any decision by the Trustee taken
upon the advice of counsel shall be full protection to the Trustee.
SECTION 7.05. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 7.01, of the taking of any action by the holders of the
percentage in aggregate principal amount of the Securities specified in this
Indenture in connection with such action, any holder of a Security (or any
Security issued in whole or in part in exchange or substitution therefor),
subject to Section 7.01, the serial number of which is shown by the evidence to
be included in the Securities the holders of which have consented to such action
may, by filing written notice with the Trustee at its principal corporate trust
office and upon proof of holding as provided in Section 7.02, revoke such action
so far as concerns such Security (or so far as concerns the principal amount
represented by any exchanged or substituted Security). Except as aforesaid any
such action taken by the holder of any Security shall be conclusive and binding
upon such holder and upon all future holders and owners of such Security, and of
any Security issued in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon such Security or any
Security issued in exchange or substitution therefor.
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.
A meeting of Securityholders may be called at any time and from time
to time pursuant to the provisions of this Article VIII for any of the following
purposes:
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(a) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of
any default hereunder and its consequences, or to take any other
action authorized to be taken by Securityholders pursuant to any
of the provisions of Article V;
(b) to remove the Trustee and nominate a successor trustee pursuant
to the provisions of Article VI;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.02;
or
(d) to take any other action authorized to be taken by or on behalf
of the holders of any specified aggregate principal amount of
such Securities under any other provision of this Indenture or
under applicable law.
SECTION 8.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Securityholders to take
any action specified in Section 8.01, to be held at such time and at such place
in the Borough of Manhattan, The City of New York, as the Trustee shall
determine. Notice of every meeting of the Securityholders, setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be mailed to holders of Securities at their
addresses as they shall appear on the Securities Register. Such notice shall be
mailed not less than 20 nor more than 180 days prior to the date fixed for the
meeting.
SECTION 8.03. Call of Meetings by Company or Securityholders.
In case at any time the Company pursuant to a resolution of the Board
of Directors, or the holders of at least 10% in aggregate principal amount of
the Securities then outstanding, shall have requested the Trustee to call a
meeting of Securityholders, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have mailed the notice of such meeting within 20 days after receipt of such
request, then the Company or such Securityholders may determine the time and the
place in said Borough of Manhattan for such meeting and may call such meeting to
take any action authorized in Section 8.01, by mailing notice thereof as
provided in Section 8.02.
SECTION 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders a Person
shall (a) be a holder of one or more Securities or (b) a Person appointed by an
instrument in writing as proxy by a holder of one or more Securities. The only
Persons who shall be entitled to be present or to speak at any meeting of
Securityholders shall be the Persons entitled to vote at such meeting and their
counsel
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and any representatives of the Trustee and its counsel and any representatives
of the Company and its counsel.
SECTION 8.05. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 8.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 8.04, at any meeting each holder
of Securities or proxy therefor shall be entitled to one vote for each $____
principal amount of Securities held or represented by him; provided, however,
-------- -------
that no vote shall be cast or counted at any meeting in respect of any Security
challenged as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of Securities held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other Securityholders. Any
meeting of Securityholders duly called pursuant to the provisions of Section
8.02 or 8.03 may be adjourned from time to time by a majority of those present,
and the meeting may be held as so adjourned without further notice.
SECTION 8.06. Voting.
The vote upon any resolution submitted to any meeting of holders of
Securities shall be by written ballots on which shall be subscribed the
signatures of such holders or of their representatives by proxy and the serial
number or numbers of the Securities held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
triplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was mailed as
provided in Section 8.02. The record shall show the serial numbers of the
Securities voting in favor of or against any resolution. The record shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one of the duplicates shall be delivered
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to the Company and the other to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Securityholders.
The Company, when authorized by a Board Resolution, and the Trustee
may from time to time and at any time amend the Indenture, without the consent
of the Securityholders, for one or more of the following purposes:
(a) to evidence the succession of another Person to the Company, or
successive successions, and the assumption by the successor
Person of the covenants, agreements and obligations of the
Company pursuant to Article X hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the
Securityholders as the Board of Directors shall consider to be
for the protection of the Securityholders, and to make the
occurrence, or the occurrence and continuance, of a default in
any of such additional covenants, restrictions or conditions a
default or an Event of Default permitting the enforcement of all
or any of the remedies provided in this Indenture as herein set
forth; provided, however, that in respect of any such additional
covenant, restriction or condition such amendment may provide for
a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such
default or may limit the remedies available to the Trustee upon
such default;
(c) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be
defective or inconsis tent with any other provision contained
herein or in any supplemental indenture, or to make such other
provisions in regard to matters or questions arising under this
Indenture; provided that any such action shall not adversely
-------- ----
affect the interests of the holders of the Securities;
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(d) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities;
(e) to make provision for transfer procedures, certification, book-
entry provisions and all other matters required pursuant to
Section 2.06 or otherwise necessary, desirable or appropriate in
connection with the issuance of Securities to holders of
Preferred Securities in the event of a distribution of Securities
by East West Bancorp Capital Trust following a Dissolution Event;
(f) to qualify or maintain qualification of this Indenture under the
Trust Indenture Act; and
(g) to make any change that does not adversely affect the rights of
any Securityholder.
The Trustee is hereby authorized to join with the Company in the
execution of any supplemental indenture to effect such amendment, to make any
further appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer and assignment of any property
thereunder, but the Trustee shall not be obligated to, but may in its
discretion, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any amendment to the Indenture authorized by the provisions of this
Section 9.01 may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time outstanding, notwithstanding
any of the provisions of Section 9.02.
SECTION 9.02. With Consent of Securityholders.
With the consent (evidenced as provided in Section 7.01) of the
holders of a majority in aggregate principal amount of the Securities at the
time outstanding, the Company, when authorized by a Board Resolution, and the
Trustee may from time to time and at any time amend the Indenture 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 the rights of
the holders of the Securities; provided, however, that no such amendment shall
without the consent of the holders of each Security then outstanding and
affected thereby (i) change the Maturity Date of any Security, or reduce the
rate or extend the time of payment of interest thereon (except as contemplated
by Article XVI), or reduce the principal amount thereof, or reduce any amount
payable on redemption thereof, or make the principal thereof or any interest
thereon payable in any coin or currency other than that provided in the
Securities, or impair or affect the right of any Securityholder to institute
suit for payment thereof, or (ii) reduce the aforesaid percentage of Securities
the holders of which are required to consent to any such amendment to the
Indenture, provided, however, that if the Securities are held by East West
-------- -------
Bancorp Capital Trust, such amendment shall not be effective until the holders
of a majority in liquidation amount of Trust Securities shall have consented to
such amendment;
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provided, further, that if the consent of the holder of each outstanding
- -------- -------
Security is required, such amendment shall not be effective until each holder of
the Trust Securities shall have consented to such amendment.
Upon the request of the Company accompanied by a copy of a resolution
of the Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any supplemental indenture affecting such
amendment, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, prepared by the
Company, setting forth in general terms the substance of such supplemental
indenture, to the Securityholders as their names and addresses appear upon the
Security Register. Any failure of the Trustee to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures.
Any supplemental indenture executed pursuant to the provisions of this
Article IX shall comply with the Trust Indenture Act. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article IX, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders
of Securities shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 9.04. Notation on Securities.
Securities authenticated and delivered after the execution of any
supplemental indenture affecting such series pursuant to the provisions of this
Article IX may bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or the Trustee
shall so determine, new Securities so modified as to conform, in the opinion of
the Trustee and the Board of Directors, to any modification of this Indenture
contained in any such
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supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee or the Authenticating Agent and delivered in
exchange for the Securities then outstanding.
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive and rely upon, in addition to the document required by Section 13.06, an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant hereto complies with the requirements
of this Article IX.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other Person
(whether or not affiliated with the Company, as the case may be), or successive
consolidations or mergers in which the Company or its successor or successors,
as the case may be, shall be a party or parties, or shall prevent any sale,
conveyance, transfer or lease of the property of the Company, or its successor
or successors as the case may be, as an entirety, or substantially as an
entirety, to any other Person (whether or not affiliated with the Company, or
its successor or successors, as the case may be) authorized to acquire and
operate the same; provided, that (a) the Company is the surviving Person, or the
--------
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, conveyance, transfer or lease of property is
made is a Person organized and existing under the laws of the United States or
any State thereof or the District of Columbia, and (b) upon any such
consolidation, merger, sale, conveyance, transfer or lease, the due and punctual
payment of the principal of and interest on the Securities according to their
tenor and the due and punctual performance and observance of all the covenants
and conditions of this Indenture to be kept or performed by the Company shall be
expressly assumed, by supplemental indenture (which shall conform to the
provisions of the Trust Indenture Act, as then in effect) satisfactory in form
to the Trustee executed and delivered to the Trustee by the Person formed by
such consolidation, or into which the Company shall have been merged, or by the
Person which shall have acquired such property, as the case may be and (c) after
giving effect to such consolidation, merger, sale, conveyance, transfer or
lease, no Default or Event of Default, or any event which, after notice or lapse
of time or both, would become a Default or an Event of Default, shall have
occurred and be continuing.
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SECTION 10.02. Successor Corporation to be Substituted for
Company.
In case of any such consolidation, merger, conveyance or transfer and
upon the assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the due and punctual payment of the principal of and interest on all of the
Securities and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed or observed by the
Company, such successor Person shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the party of the
first part, and the Company thereupon shall be relieved of any further liability
or obligation hereunder or upon the Securities. Such successor Person thereupon
may cause to be signed, and may issue either in its own name or in the name of
East West Bancorp Capital Trust, any or all of the Securities issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Trustee or the Authenticating Agent; 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 or the Authenticating
Agent shall authenticate and deliver any Securities which previously shall have
been signed and delivered by the officers of the Company to the Trustee or the
Authenticating Agent for authentication, and any Securities which such successor
Person thereafter shall cause to be signed and delivered to the Trustee or the
Authenticating Agent for that purpose. All the Securities so issued shall in
all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Indentures had been issued at the date of the
execution hereof.
SECTION 10.03. Opinion of Counsel to be Given Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Opinion of Counsel as conclusive evidence that any consolidation,
merger, sale, conveyance, transfer or lease, and any assumption, permitted or
required by the terms of this Article X complies with the provisions of this
Article X.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture.
When (a) the Company shall deliver to the Trustee for cancellation all
Securities theretofore authenticated (other than any Securities which shall have
been destroyed, lost or stolen and which shall have been replaced as provided in
Section 2.07) and not theretofore cancelled, or (b) all the Securities not
theretofore cancelled or delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the
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giving of notice of redemption, and the Company shall deposit with the Trustee,
in trust, funds sufficient to pay on the Maturity Date or upon redemption all of
the Securities (other than any Securities which shall have been destroyed, lost
or stolen and which shall have been replaced as provided in Section 2.07) not
theretofore cancelled or delivered to the Trustee for cancellation, including
principal and interest (including Compounded Interest and Additional Sums, if
any) due or to become due to the Maturity Date or redemption date, as the case
may be, but excluding, however, the amount of any moneys for the payment of
principal of or interest (including Compounded Interest and Additional Sums, if
any) on the Securities (1) theretofore repaid to the Company in accordance with
the provisions of Section 11.04, or (2) paid to any State or to the District of
Columbia pursuant to its unclaimed property or similar laws, and if in either
case the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company, then this Indenture shall cease to be of further
effect except for the provisions of Sections 2.02, 2.06, 2.07, 3.01, 3.02, 3.04,
6.06, 6.10 and 11.04 hereof, which shall survive until such Securities shall
mature and be paid. Thereafter, Sections 6.06, 6.10 and 11.04 shall survive, and
the Trustee, on demand of the Company accompanied by any Officers' Certificate
and an Opinion of Counsel and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging this
Indenture, the Company, however, hereby agreeing to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred by the Trustee
in connection with this Indenture or the Securities.
SECTION 11.02. Deposited Moneys and U.S. Government Obligations
to be Held in Trust by Trustee.
Subject to the provisions of Section 11.04, all moneys and U.S.
Government Obligations deposited with the Trustee pursuant to Sections 11.01 or
11.05 shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the Company if acting as its own paying
agent), to the holders of the particular Securities for the payment of which
such moneys or U.S. Government Obligations have been deposited with the Trustee,
of all sums due and to become due thereon for principal and interest (including
Additional Sums and Compounded Interest, if any).
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 11.05 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the holders of outstanding Securities.
SECTION 11.03. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys then
held by any paying agent of the Securities (other than the Trustee) shall, upon
written demand of the Company, be repaid to it or paid to the Trustee, and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
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SECTION 11.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any paying agent
for payment of the principal of or interest on Securities and not applied but
remaining unclaimed by the holders of Securities for two years after the date
upon which the principal of or interest (including Compounded Interest and
Additional Sums, if any) on such Securities, as the case may be, shall have
become due and payable, shall be repaid to the Company by the Trustee or such
paying agent on written demand; and the holder of any of the Securities shall
thereafter look only to the Company for any payment which such holder may be
entitled to collect and all liability of the Trustee or such paying agent with
respect to such moneys shall thereupon cease.
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S.
Government Obligations.
The Company shall be deemed to have been Discharged (as defined below)
from its obligations with respect to the Securities on the 91st day after the
applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee or the Defeasance Agent (as defined
below) as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the holders of the
Securities (i) money in an amount, or (ii) U.S. Government
Obligations which through the payment of interest and principal
in respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment, money
in an amount, or (iii) a combina tion of (i) and (ii),
sufficient, in the opinion (with respect to (ii) and (iii)) of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee and the Defeasance Agent, if any, to pay and discharge
each installment of principal of and interest on the outstanding
Securities on the dates such installments of principal and
interest are due;
(2) if the Securities are then listed on any national securities
exchange, the Company shall have delivered to the Trustee and the
Defeasance Agent, if any, an Opinion of Counsel to the effect
that the exercise of the option under this Section 11.05 would
not cause such Securities to be delisted from such exchange;
(3) no Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such
deposit;
(4) the Company shall have delivered to the Trustee and the
Defeasance Agent, if any, an Opinion of Counsel to the effect
that holders of the Securities will
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not recognize income, gain or loss for United States federal
income tax purposes as a result of the exercise of the option
under this Section 11.05 and will be subject to United States
federal income tax on the same amount and in the same manner and
at the same times as would have been the case if such option had
not been exercised, and such opinion shall be based on a statute
so providing or be accompanied by a private letter ruling to that
effect received from the United States Internal Revenue Service
or a revenue ruling pertaining to a comparable form of
transaction to that effect published by the United States
Internal Revenue Service;
(5) the Trustee will not have a conflicting interest within the
meaning of the Trust Indenture Act;
(6) a breach or violation of, or default under, any other agreement
or intrument to which the Company is a party or by which it is
bound will not result;
(7) a trust arising from such deposit will not result which
constitutes an investment company within the meaning of the
Investment Company Act of 1940, as amended, unless such trust
shall be qualified or exempt from regulation thereunder; and
(8) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Discharge have been
complied with.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities and to have satisfied all the obligations under this Indenture
relating to the Securities (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except (A) the rights
of holders of Securities to receive, from the trust fund described in clause (1)
above, payment of the principal of and the interest on the Securities when such
payments are due; (B) the Company's obligations with respect to the Securities
under Sections 2.06, 2.07, 5.02 and 11.04; and (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder.
"Defeasance Agent" means another financial institution which is
eligible to act as Trustee hereunder and which assumes all of the obligations of
the Trustee necessary to enable the Trustee to act hereunder. In the event such
a Defeasance Agent is appointed pursuant to this Section, the following
conditions shall apply:
(1) The Trustee shall have approval rights over the document
appointing such Defeasance Agent and the document setting forth
such Defeasance Agent's rights and responsibilities;
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(2) The Defeasance Agent shall provide verification to the Trustee
acknowledging receipt of sufficient money and/or U. S.
Government Obligations to meet the applicable conditions set
forth in this Section 11.05.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Securities Solely Corporate
Obligations.
No recourse for the payment of the principal of or interest on any
Security, or for any claim based thereon or otherwise in respect thereof, and no
recourse under or upon any obligation, covenant or agreement of the Company in
this Indenture, or in any Security, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor Person to the Company, either directly or through
the Company or any successor Person to the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issue of the Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.
All the covenants, stipulations, promises and agreements in this
Indenture contained by the Company shall bind its successors and assigns whether
so expressed or not.
SECTION 13.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any corporation that shall at the time be
the lawful sole successor of the Company.
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SECTION 13.03. Surrender of Company Powers.
The Company by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company, and thereupon such power so
surrendered shall terminate both as to the Company, as the case may be, and as
to any successor Person.
SECTION 13.04. Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the holders of
Securities on the Company may be given or served by being deposited postage
prepaid by first class mail, registered or certified mail, overnight courier
service or conformed telecopy addressed (until another address is filed by the
Company with the Trustee for the purpose) to the Company at 415 Huntington
Drive, San marino, California 91108, Attention: Julia Gouw, Chief Financial
Officer. Any notice, direction, request or demand by any Securityholder to or
upon the Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made in writing (which may be by facsimile) at the
office of the Trustee, _______________________________, ______________________,
Attention: Corporate Trust Trustee Administration, facsimile: ____________
(unless another address is provided by the Trustee to the Company for such
purpose). Any notice or communication to a Securityholder shall be mailed by
first class mail to his or her address shown on the register kept by the
Security Registrar. Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its sufficiency with respect
to other Securityholders.
SECTION 13.05. Governing Law.
THIS INDENTURE AND EACH SECURITY SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 13.06. Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Company to the Trustee to take
any action under any of the provisions of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that in the opinion of
the signers all conditions 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 such conditions
precedent have been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (except certificates delivered pursuant to
Section 3.05) shall include (1) a statement that the Person making
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such certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 13.07. Business Days.
In any case where the date of payment of principal of or interest on
the Securities will not be a Business Day, the payment of such principal of or
interest on the Securities need not be made on such date but may be made on the
next succeeding Business Day, with the same force and effect as if made on the
date of payment and no interest shall accrue for the period from and after such
date, except that if such next succeeding Business Day falls in the next
succeeding calendar year, then such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
SECTION 13.08. Trust Indenture Act to Control.
This Indenture is subject to and shall be governed by the provisions
of the Trust Indenture Act that are required to be a part of this Indenture. If
any provision hereof limits, qualifies or conflicts with a provision of the
Trust Indenture Act that is required under such act to be a part of and govern
this Indenture, the Trust Indenture Act 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, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
SECTION 13.09. Table of Contents, Headings, etc.
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
SECTION 13.10. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one and the same instrument.
SECTION 13.11. Separability.
In case any one or more of the provisions contained in this Indenture
or in the Securities shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Indenture or of
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the Securities, but this Indenture and the Securities shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
SECTION 13.12. Assignment.
The Company will have the right at all times to assign any of its
respective 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 primarily liable for all such obligations.
Subject to the foregoing, the Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors and assigns.
This Indenture may not otherwise be assigned by the parties thereto.
SECTION 13.13. Acknowledgment of Rights.
The Company acknowledges that, with respect to any Securities held by
East West Bancorp Capital Trust or a trustee of such trust, if the Property
Trustee of such Trust fails to enforce its rights under this Indenture as the
holder of the Securities held as the assets of East West Bancorp Capital Trust,
any holder of Preferred Securities may institute legal proceedings directly
against the Company to enforce such Property Trustee's rights under this
Indenture without first instituting any legal proceedings against such Property
Trustee or any other person or entity. Notwithstanding the foregoing, if an
Event of Default has occurred and is continuing and such event is attributable
to the failure of the Company to pay principal of or interest on the Securities
when due, the Company acknowledges that a holder of Preferred Securities may
directly institute a proceeding for enforcement of payment to such holder of the
principal of or interest on the Securities having a principal amount equal to
the aggregate liquidation amount of the Preferred Securities of such holder on
or after the respective due date specified in the Securities.
ARTICLE XIV
REDEMPTION OF SECURITIES
SECTION 14.01. Special Event Redemption.
If a Special Event has occurred and is continuing then,
notwithstanding Section 14.02(a) but subject to Section 14.02(c), the Company
shall have the right, at any time within 90 days following the occurrence of
such Special Event, upon (i) not less than 45 days written notice to the Trustee
and (ii) not less than 30 days nor more than 60 days written notice to the
Securityholders, to redeem the Securities, in whole (but not in part), a
redemption price equal to the accrued and unpaid interest on the Security
(including Compounded Interest and Additional Sums, if any) to be so redeemed to
the date fixed for redemption, plus 100% of the principal amount thereof (the
"Redemption Price"). The Redemption Price shall be paid prior to 12:00 noon,
New York time, on the date of such redemption or such earlier time as the
Company determines, provided that the
--------
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Company shall deposit with the Trustee an amount sufficient to pay the
Redemption Price by 10:00 a.m., New York time, on the date such Redemption Price
is to be paid.
SECTION 14.02. Optional Redemption by Company.
(a) Subject to the provisions of this Article XIV, the Company shall
have the right to redeem the Securities, in whole or in part, from time to time,
on or after _________ __, 2005, at the Redemption Price.
If the Securities are only partially redeemed pursuant to this Section
14.02, the Securities to be redeemed shall be selected on a pro rata basis, by
lot or by such other method that the Trustee shall deem appropriate not more
than 60 days prior to the date fixed for redemption from the outstanding
Securities not previously called for redemption, provided, however, that any
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such method of selection may be made on the basis of the aggregate principal
amount of Securities held by each Securityholder and may be made by making such
adjustments as the Company deems fair and appropriate in order that only
Securities in denominations of $__or integral multiples thereof shall be
redeemed. The Redemption Price shall be paid prior to 12:00 noon, New York
time, on the date of such redemption or at such earlier time as the Company
determines, provided that the Company shall deposit with the Trustee an amount
--------
sufficient to pay the Redemption Price by 10:00 a.m., New York time, on the date
such Redemption Price is to be paid.
(b) Notwithstanding the first sentence of Section 14.02, upon the
entry of an order for dissolution of the East West Bancorp Capital Trust by a
court of competent jurisdiction, the Securities thereafter will be subject to
optional redemption, in whole only, but not in part, on or after _________ __,
2005, at the Redemption Price, and otherwise in accordance with this Article
XIV.
(c) Any redemption of Securities pursuant to Section 14.01 or Section
14.02 shall be subject to the receipt by the Company of any required regulatory
approval.
(d) The Company shall not effect a partial redemption of the
Securities if such partial redemption would result in a delisting of the
Preferred Securities from the NASDAQ National Market or such other exchange or
organization as the Preferred Securities are then listed.
SECTION 14.03. No Sinking Fund.
The Securities are not entitled to the benefit of any sinking fund.
SECTION 14.04. Notice of Redemption; Selection of Securities.
In case the Company shall desire to exercise the right to redeem all,
or, as the case may be, any part of the Securities in accordance with their
terms, it shall fix a date for redemption and shall mail a notice of such
redemption at least 30 and not more than 60 days prior to the date fixed for
redemption to the holders of Securities so to be redeemed as a whole or in part
at their last
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addresses as the same appear on the Security Register. Such mailing shall be by
first class mail. 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, failure to give such notice by mail or any
defect in the notice to the holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
Each such notice of redemption shall specify the CUSIP number of the
Securities to be redeemed, the date fixed for redemption, the redemption price
at which the Securities are to be redeemed (or the method by which such
redemption price is to be calculated), the place or places of payment that
payment will be made upon presentation and surrender of the Securities, that
interest accrued to the date fixed for redemption will be paid as specified in
said notice, and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. If less than all the Securities
are to be redeemed the notice of redemption shall specify the numbers of the
Securities to be redeemed. In case any Security is to be redeemed in part only,
the notice of redemption shall state the portion of the principal amount thereof
to be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities in principal
amount equal to the unredeemed portion thereof will be issued.
By 10:00 a.m. New York time on the redemption date specified in the
notice of redemption given as provided in this Section, the Company will deposit
with the Trustee or with one or more paying agents an amount of money sufficient
to redeem on the redemption date all the Securities so called for redemption at
the appropriate Redemption Price, together with accrued interest to the date
fixed for redemption.
The Company will give the Trustee notice not less than 45 days prior
to the redemption date as to the aggregate principal amount of Securities to be
redeemed and the Trustee shall select, in such manner as in its sole discretion
it shall deem appropriate and fair, the Securities or portions thereof (in
integral multiples of $___, except as otherwise set forth in the applicable form
of Security) to be redeemed.
SECTION 14.05. Payment of Securities Called for Redemption.
If notice of redemption has been given as provided in Section 14.04,
the Securities or portions of Securities with respect to which such notice has
been given shall become due and payable on the date and at the place or places
stated in such notice at the Redemption Price, together with interest accrued to
the date fixed for redemption (subject to the rights of holders of Securities on
the close of business on a regular record date in respect of an Interest Payment
Date occurring on or prior to the redemption date), and on and after said date
(unless the Company shall default in the payment of such Securities at the
Redemption Price, together with interest accrued to said date) interest
(including Compounded Interest and Additional Sums, if any) on the Securities or
portions of Securities so called for redemption shall cease to accrue. On
presentation and surrender of such Securities at a place of payment specified in
said notice, the said Securities or the specified portions thereof shall be paid
and redeemed by the Company at the Redemption Price, together with interest
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(including Compounded Interest and Additional Sums, if any) accrued thereon to
the date fixed for redemption (subject to the rights of holders of Securities on
the close of business on a regular record date in respect of an Interest Payment
Date occurring on or prior to the redemption date).
Upon presentation of any Security redeemed in part only, the Company
shall execute and the Trustee shall authenticate and make available for delivery
to the holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01. Agreement to Subordinate.
The Company covenants and agrees, and each holder of Securities issued
hereunder likewise covenants and agrees, that the Securities shall be issued
subject to the provisions of this Article XV; and each holder of a Security,
whether upon original issue or upon transfer or assignment thereof, accepts and
agrees to be bound by such provisions.
The payment by the Company of the principal of and interest (including
Compounded Interest and Additional Sums, if any) on all Securities issued
hereunder shall, to the extent and in the manner hereinafter set forth, be
subordinated and junior in right of payment in full of principal of all
Allocable Amounts on such Senior and Subordinated Indebtedness, whether
outstanding at the date of this Indenture or thereafter incurred.
No provision of this Article XV shall prevent the occurrence of any
Default or Event of Default hereunder.
SECTION 15.02. Default on Senior and Subordinated Indebtedness.
In the event and during the continuation of any default by the Company
in the payment of principal, interest or any other payment due on any Senior and
Subordinated Indebtedness (after any grace period with respect to such default
has expired and such default has not been cured or waived or ceased to exist),
or in the event that the maturity of any Senior and Subordinated Indebtedness
has been accelerated because of a default, then, in either case, no payment
shall be made by the Company with respect to the principal (including redemption
payments) of or interest on the Securities.
In the event of the acceleration of the maturity of the Securities,
then no payment shall be made by the Company with respect to the principal
(including redemption payments) of or interest on the Securities until the
holders of all Senior and Subordinated Indebtedness outstanding at the
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time of such acceleration shall receive payment in full of such Senior and
Subordinated Indebtedness (including any amounts due upon acceleration).
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraphs of this Section 15.02, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior and
Subordinated Indebtedness or their respective representatives, or to the trustee
or trustees under any indenture pursuant to which any of such Senior and
Subordinated Indebtedness may have been issued, as their respective interests
may appear, but only to the extent that the holders of the Senior and
Subordinated Indebtedness (or their representative or representatives or a
trustee) notify the Trustee in writing, within 90 days of such payment of the
amounts then due and owing on such Senior and Subordinated Indebtedness and only
the amounts specified in such notice to the Trustee shall be paid to the holders
of such Senior and Subordinated Indebtedness.
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all Senior and Subordinated Indebtedness of
the Company shall first be paid in full, or payment thereof provided for in
money in accordance with its terms, before any payment is made by the Company on
account of the principal or interest (including Compounded Interest and
Additional Sums, if any) on the Securities; and upon any such dissolution or
winding-up or liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to which the Securityholders or the Trustee would be
entitled to receive from the Company, except for the provisions of this Article
XV, shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
or by the Securityholders or by the Trustee under the Indenture if received by
them or it, directly to the holders of Senior and Subordinated Indebtedness of
the Company (pro rata to such holders on the basis of the respective amounts of
--- ----
Senior and Subordinated Indebtedness held by such holders, as calculated by the
Company) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Senior and Subordinated Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay all such Senior and
Subordinated Indebtedness in full, in money or money's worth, after giving
effect to any concurrent payment or distribution to or for the holders of such
Senior and Subordinated Indebtedness, before any payment or distribution is made
to the Securityholders or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee before all Senior and Subordinated Indebtedness is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment
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or distribution shall be held in trust for the benefit of and shall be paid over
or delivered to the holders of such Senior and Subordinated Indebtedness or
their representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior and
Subordinated Indebtedness may have been issued, as their respective interests
may appear, as calculated by the Company, for application to the payment of all
Senior and Subordinated Indebtedness remaining unpaid to the extent necessary to
pay all such Senior and Subordinated Indebtedness in full in money in accordance
with its terms, after giving effect to any concurrent payment or distribution to
or for the benefit of the holders of such Senior and Subordinated Indebtedness.
For purposes of this Article XV, the words "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, the payment of which
is subordinated at least to the extent provided in this Article XV with respect
to the Securities to the payment of Senior and Subordinated Indebtedness that
may at the time be outstanding, provided that (i) such Senior and Subordinated
Indebtedness is assumed by the new corporation, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of such
Senior and Subordinated Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment. 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, conveyance,
transfer or lease of its property as an entirety, or substantially as an
entirety, to another Person upon the terms and conditions provided for in
Article X of this Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 15.03 if such
other Person shall, as a part of such consolidation, merger, sale, conveyance,
transfer or lease, comply with the conditions stated in Article X of this
Indenture. Nothing in Section 15.02 or in this Section 15.03 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 6.06 of this
Indenture.
SECTION 15.04. Subrogation.
Subject to the payment in full of all Senior and Subordinated
Indebtedness, the rights of the Securityholders shall be subrogated to the
rights of the holders of such Senior and Subordinated Indebtedness to receive
payments or distributions of cash, property or securities of the Company, as the
case may be, applicable to such Senior and Subordinated Indebtedness until the
principal of and interest on the Securities shall be paid in full; and, for the
purposes of such subrogation, no payments or distributions to the holders of
such Senior and Subordinated Indebtedness of any cash, property or securities to
which the Securityholders or the Trustee would be entitled except for the
provisions of this Article XV, and no payment pursuant to the provisions of this
Article XV to or for the benefit of the holders of such Senior and Subordinated
Indebtedness by Securityholders or the Trustee, shall, as between the Company,
its creditors other than holders of Senior and Subordinated Indebtedness of the
Company, and the holders of the Securities, be deemed to be a payment by the
Company to or on account of such Senior and Subordinated Indebtedness. It is
understood that the provisions of this Article XV are and are intended solely
for
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the purposes of defining the relative rights of the holders of the Securities,
on the one hand, and the holders of such Senior and Subordinated Indebtedness on
the other hand.
Nothing contained in this Article XV or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior and Subordinated Indebtedness of the
Company, and the holders of the Securities, the obligation of the Company, which
is absolute and unconditional, to pay to the holders of the Securities the
principal of and interest (including Compounded Interest and Additional Sums, if
any) on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the holders of the Securities and creditors of the Company, as the
case may be, other than the holders of Senior and Subordinated Indebtedness of
the Company, as the case may be, nor shall anything herein or therein prevent
the Trustee or the holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under the Indenture, subject to the
rights, if any, under this Article XV of the holders of such Senior and
Subordinated Indebtedness in respect of cash, property or securities of the
Company, as the case may be, received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article XV, the Trustee, subject to the provisions of Article VI of this
Indenture, and the Securityholders shall be entitled to conclusively rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Securityholders, for the purposes of ascertaining the Persons
entitled to participate in such distribution, the holders of Senior and
Subordinated Indebtedness and other indebtedness of the Company, as the case may
be, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article XV.
SECTION 15.05. Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's acceptance thereof
authorizes and directs the Trustee on such Securityholder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article XV and appoints the Trustee such Securityholder's
attorney-in-fact for any and all such purposes.
SECTION 15.06. Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article XV. Notwithstanding the provisions of
this Article XV 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 of monies to or by the Trustee in respect of the
Securities pursuant to the
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provisions of this Article XV, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof from the Company or a holder
or holders of Senior and Subordinated Indebtedness or from any trustee therefor;
and before the receipt of any such written notice, the Trustee, subject to the
provisions of Article VI of this Indenture, shall be entitled in all respects to
assume that no such facts exist; provided, however, that if the Trustee shall
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not have received the notice provided for in this Section 15.06 at least two
Business Days prior to the date upon which by the terms hereof any money may
become payable for any purpose (including, without limitation, the payment of
the principal of or interest (including Compounded Interest and Additional Sums,
if any) on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purposes for which they were received, and
shall not be affected by any notice to the contrary that may be received by it
within two Business Days prior to such date.
The Trustee, subject to the provisions of Article VI of this
Indenture, shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior and
Subordinated Indebtedness of the Company (or a trustee on behalf of such
holder), as the case may be, to establish that such notice has been given by a
holder of such Senior and Subordinated Indebtedness or a trustee on behalf of
any such holder or holders. 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 such Senior and Subordinated Indebtedness to participate in any
payment or distribution pursuant to this Article XV, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of such Senior and Subordinated Indebtedness 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 XV, 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.
Upon any payment or distribution of assets of the Company referred to
in this Article XV, the Trustee and the Securityholders shall be entitled to
rely upon any order or decree entered by any court of competent jurisdiction in
which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, custodian,
receiver, assignee for the benefit of creditors, agent or other person making
such payment or distribution, delivered to the Trustee or to the
Securityholders, for the purpose of ascertaining the persons entitled to
participate in such payment or distribution, the holders of Senior and
Subordinated Indebtedness 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 XV.
SECTION 15.07. Rights of the Trustee; Holders of Senior and
Subordinated Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XV in respect of any Senior and Subordinated
Indebtedness at any time held by it, to the
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same extent as any other holder of Senior and Subordinated Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder.
With respect to the holders of Senior and Subordinated Indebtedness of
the Company, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article XV, and
no implied covenants or obligations with respect to the holders of such Senior
and Subordinated Indebtedness shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of such Senior and Subordinated Indebtedness and, subject to the
provisions of Article VI of this Indenture, the Trustee shall not be liable to
any holder of such Senior and Subordinated Indebtedness if it shall pay over or
deliver to Securityholders, the Company or any other Person money or assets to
which any holder of such Senior and Subordinated Indebtedness shall be entitled
by virtue of this Article XV or otherwise.
Nothing in this Article XV shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.06.
SECTION 15.08. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior and
Subordinated Indebtedness of the Company 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, as the case may be, or by any act or
failure to act, in good faith, by any such holder, or by any noncompliance by
the Company, as the case may be, 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 foregoing paragraph,
the holders of Senior and Subordinated Indebtedness of the Company may, at any
time and from time to time, without the consent of or notice to the Trustee or
the Securityholders, without incurring responsibil ity to the Securityholders
and without impairing or releasing the subordination provided in this Article XV
or the obligations hereunder of the holders of the Securities to the holders of
such Senior and Subordinated Indebtedness, 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, such Senior and Subordinated Indebtedness, or otherwise
amend or supplement in any manner such Senior and Subordinated Indebtedness or
any instrument evidencing the same or any agreement under which such Senior and
Subordinated Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Senior and Subordinated Indebtedness; (iii) release any Person liable in any
manner for the collection of such Senior and Subordinated Indebtedness; and (iv)
exercise or refrain from exercising any rights against the Company, as the case
may be, and any other Person.
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ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.01. Extension of Interest Payment Period.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time and from time to time during the term
of the Securities, to defer payments of interest by extending the interest
payment period of such Securities for a period not exceeding 20 consecutive
quarterly periods, including the first such quarterly period during such
extension period (the "Extended Interest Payment Period"), during which Extended
Interest Payment Period no interest shall be due and payable; provided that no
-------- ----
Extended Interest Payment Period shall end on a date other than an Interest
Payment Date or extend beyond the Maturity Date. To the extent permitted by
applicable law, interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to this Section 16.01, will
bear interest thereon at the Coupon Rate compounded quarterly for each quarterly
period of the Extended Interest Payment Period ("Compounded Interest"). At the
end of the Extended Interest Payment Period, the Company shall pay all interest
accrued and unpaid on the Securities, including any Additional Sums and
Compounded Interest (together, "Deferred Interest") that shall be payable to the
holders of the Securities in whose names the Securities are registered in the
Security Register on the first record date preceding the end of the Extended
Interest Payment Period. Before the termination of any Extended Interest
Payment Period, the Company may further defer payments of interest by further
extending such period, provided that such period, together with all such
--------
previous and further extensions within such Extended Interest Payment Period,
shall not exceed 20 consecutive quarterly periods, including the first such
quarterly period during such Extended Interest Payment Period, end on a date
other than an Interest Payment Date or extend beyond the Maturity Date of the
Securities. Upon the termination of any Extended Interest Payment Period and the
payment of all Deferred Interest then due, the Company may commence a new
Extended Interest Payment Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extended Interest Payment Period,
except at the end thereof, but the Company may prepay at any time all or any
portion of the interest accrued during an Extended Interest Payment Period.
SECTION 16.02. Notice of Extension.
(a) If the Property Trustee is the only registered holder of the
Securities at the time the Company selects an Extended Interest Payment Period,
the Company shall give written notice to the Administrative Trustees, the
Property Trustee and the Trustee of its selection of such Extended Interest
Payment Period five Business Days before the earlier of (i) the next succeeding
date on which Distributions on the Trust Securities issued by the Trust are
payable, or (ii) the date the Trust is required to give notice of the record
date, or the date such Distributions are payable, to any national securities
exchange or to holders of the Preferred Securities issued by the Trust, but in
any event at least five Business Days before such record date.
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(b) If the Property Trustee is not the only holder of the Securities
at the time the Company selects an Extended Interest Payment Period, the Company
shall give the holders of the Securities and the Trustee written notice of its
selection of such Extended Interest Payment Period at least five Business Days
before the earlier of (i) the next succeeding Interest Payment Date, or (ii) the
date the Company is required to give notice of the record or payment date of
such interest payment to any national securities exchange.
(c) The quarterly period in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 16.02 shall be counted as one of the 20
quarterly periods permitted in the maximum Extended Interest Payment Period
permitted under Section 16.01.
_______________ hereby accepts the trusts in this Indenture declared
and provided, upon the terms and conditions hereinabove set forth.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed by their respective officers thereunto duly authorized, as of
the day and year first above written.
EAST WEST BANCORP, INC.
By ____________________________________
Name: Julia Gouw
Title: Chief Financial Officer
_______________,
as Trustee
By ____________________________________
Name:
Title:
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EXHIBIT A
---------
(FORM OF FACE OF SECURITY)
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS SECURITY IS EX CHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUM STANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY.
UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED REPRESEN TATIVE OF THE
DEPOSITORY TO THE TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY PREFERRED SECURITY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF THE CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY), 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.]
Principal Amount: $
No. 1 CUSIP No.
East West Bancorp Capital Trust I
____% JUNIOR SUBORDINATED DEFERRABLE INTEREST
DEBENTURE DUE ________ __, 2030
East West Bancorp, Inc., a Delaware corporation (the "Company", which
term includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to _______________, as Property
Trustee for East West Bancorp Capital Trust I or registered assigns, the
principal sum of $__________ , on _________ __, 2030 (the "Maturity Date");
provided that the Company may redeem this Security on a date not earlier than
_________ __, 2005, and to pay interest on the outstanding principal amount
hereof from ________ __, 2000, 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 the last day of March, June, September and December of each year,
commencing ________ __, 2000, at the rate of ____% per annum until the principal
hereof shall have become due and payable,
A-1
<PAGE>
and on any overdue principal and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum compounded quarterly. The
amount of interest payable on any Interest Payment Date shall be computed on the
basis of a 360-day year of twelve 30-day months and, for any period less than a
full calendar quarter, the number of days elapsed in such quarter based upon 30-
day months. In the event that any date on which the principal of or interest on
this Security is payable is not a Business Day, then the payment payable on such
date will be made on the next succeeding Business Day (and without any interest
or other payment in respect of any such delay), except that if such next
succeeding Business Day falls in the next calendar year, then such payment shall
be made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date. Pursuant to the Indenture, in certain
circumstances the Company will be required to pay Additional Sums and Compounded
Interest (each as defined in the Indenture) with respect to this Security.
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 Security (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of business
on the regular record date for such interest installment, which shall be at the
close of business on the Business Day next preceding such Interest Payment Date;
provided, however, that in the event that the Preferred Securities are no longer
- -------- -------
in book-entry only form or this Security (or one or more predecessor Securities)
are not represented by a Global Security, the record date for such payment shall
be the fifteenth day of the month in which such payment is due. Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the holders on such regular record date and may be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a special record date to
be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the holders of Securities not less than 10 days prior
to such special record date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture.
The principal of and interest (including Compounded Interest and
Additional Sums, if any) on this Security shall be payable at the office or
agency of the Trustee maintained for that purpose in any coin or currency of the
United States of America that at the time of payment is legal tender for payment
of public and private debts; provided, however, that, payment of interest may be
-------- -------
made at the option of the Company by (i) check mailed to the holder at such
address as shall appear in the Security Register or (ii) by transfer to an
account maintained by the Person entitled thereto, provided that proper written
transfer instructions have been received by the relevant record date.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior and Subordinated Indebtedness, and this Security
is issued subject to the provisions of the Indenture with respect thereto. Each
holder of this Security, by accepting the same, (a) agrees to and shall be bound
A-2
<PAGE>
by such provisions, (b) 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 so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior and Subordinated Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
This Security shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Security are continued on the reverse side
hereof and such provisions shall for all purposes have the same effect as though
fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed and sealed.
Dated:
EAST WEST BANCORP, INC.
By: ______________________________
Name: Julia Gouw
Title: Chief Financial Officer
Attest:
By: _______________________
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
_______________,
as Trustee
By: ____________________ Dated:
Authorized Signatory
A-3
<PAGE>
(FORM OF REVERSE OF SECURITY)
This Security is one of the Securities of the Company (herein
sometimes referred to as the "Securities"), specified in the Indenture, all
issued or to be issued under and pursuant to an Indenture, dated as of _________
__, 2000 (the "Indenture"), duly executed and delivered between the Company and
_______________, as Trustee (the "Trustee"), to which Indenture reference is
hereby made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the holders of
the Securities.
Upon the occurrence and continuation of a Special Event, as defined in
the Indenture, the Company shall have the right, at any time within 90 days
following the occurrence of such Special Event, to redeem this Security in whole
(but not in part), a redemption price equal to the accrued and unpaid interest
on the Security (including Compounded Interest and Additional Sums, if any) to
be so redeemed to the date fixed for redemption, plus 100% of the principal
amount thereof (the "Redemption Price").
In addition, subject to the Company having received the prior approval
of the applicable regulatory agencies, if it is then required under applicable
regulatory requirements, the Company shall have the right to redeem this
Security, in whole or in part, at any time on or after ___________ __, 2005 at
the Redemption Price; provided, however, that the Company shall not effect a
-------- -------
partial redemption of this Security if such partial redemption would result in a
delisting of the Preferred Securities from the NASDAQ National Market or such
other exchange or organization as the Preferred Securities are then listed.
The Redemption Price shall be paid prior to 12:00 noon, New York City
time on the date of such redemption or at such earlier time as the Company
determines, provided, that the Company shall deposit with the Trustee an amount
sufficient to pay the applicable Redemption Price by 10:00 a.m., New York City
time, on the date such Redemption Price is to be paid. Any redemption pursuant
to this paragraph will be made upon not less than 30 days or more than 60 days
notice. If the Securities are only partially redeemed by the Company, the
particular Securities to be redeemed shall be selected on a pro rata basis, by
lot or such other method that the Trustee shall deem appropriate not more than
60 days prior to the date fixed for redemption from the outstanding Securities
not previously called for redemption, provided, however, that any such selection
-------- -------
may be made on the basis of the aggregate principal amount of Securities held by
each Securityholder thereof and may be made by making such adjustments as the
Company deems fair and appropriate in order that only Securities in
denominations of $___ or integral multiples thereof shall be redeemed.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof will be issued in the
name of the holder hereof upon the cancellation hereof. Notwithstanding the
foregoing, any redemption of this Security by the Company shall be subject to
the receipt of any and all required regulatory approvals.
A-4
<PAGE>
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Securities may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of a majority in aggregate principal
amount of the Securities at the time outstanding, as defined in the Indenture,
to execute supplemental indentures for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of the Indenture
or of modifying in any manner the rights of the holders of the Securities;
provided, however, that no such supplemental indenture shall, without the
consent of each holder of Securities then outstanding and affected thereby, (i)
change the Maturity Date of any Securities, or reduce the principal amount
thereof, or reduce any amount payable on redemption thereof, or reduce the rate
or extend the time of payment of interest thereon (subject to Article XVI of the
Indenture), or make the principal of, or interest on, the Securities payable in
any coin or currency other than U.S. dollars, or impair or affect the right of
any holder of Securities to institute suit for the payment thereof, or (ii)
reduce the aforesaid percentage of Securities, the holders of which are required
to consent to any such supplemental indenture. The Indenture also contains
provisions permitting the holders of a majority in aggregate principal amount of
the Securities at the time outstanding affected thereby, on behalf of all of the
holders of the Securities, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established pursuant to the
Indenture, and its consequences, except a default in the payment of the
principal of or interest on any of the Securities or a default in respect of any
covenant or provision under which the Indenture cannot be modified or amended
without the consent of each holder of Securities then outstanding. Any such
consent or waiver by the holder of this Security (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such Holder and upon all
future holders and owners of this Security and of any Security issued in
exchange herefor or in place hereof, irrespective of whether or not any notation
of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest (including
Compounded Interest and Additional Sums, if any) on this Security at the time
and place and at the rate and in the money herein prescribed.
So long as no Event of Default shall have occurred and be continuing,
the Company shall have the right, at any time and from time to time during the
term of the Securities, to defer payments of interest by extending the interest
payment period of such Securities for a period not exceeding 20 consecutive
quarterly periods, including the first such quarterly period during such
extension period, and not extending beyond the Maturity Date of the Securities
(an "Extended Interest Payment Period") or ending on a date other than an
Interest Payment Date, at the end of which period the Company shall pay all
interest then accrued and unpaid (together with interest thereon at the rate
specified for the Securities to the extent that payment of such interest is
enforceable under applicable law). Before the termination of any such Extended
Interest Payment
A-5
<PAGE>
Period, the Company may further defer payments of interest by further extending
such Extended Interest Payment Period, provided that such Extended Interest
--------
Payment Period, together with all such previous and further extensions within
such Extended Interest Payment Period, (i) shall not exceed 20 consecutive
quarterly periods, including the first quarterly period during such Extended
Interest Payment Period, (ii) shall not end on any date other than an Interest
Payment Date, and (iii) shall not extend beyond the Maturity Date of the
Securities. Upon the termination of any such Extended Interest Payment Period
and the payment of all accrued and unpaid interest and any additional amounts
then due, the Company may commence a new Extended Interest Payment Period,
subject to the foregoing requirements.
The Company has agreed that it will not (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 capital stock (which
includes common and preferred stock), (ii) make any payment of principal,
interest or premium, if any, on or repay or repurchase or redeem any debt
securities of the Company that rank pari passu with or junior in right of
payment to the Securities or (iii) make any guarantee payments with respect to
any guarantee by the Company of the debt securities of any Subsidiary of the
Company if such guarantee ranks pari passu or junior in right of payment to the
Securities (other than (a) dividends or distributions in shares of, or options,
warrants or rights to subscribe for or purchase shares of, Common Stock of the
Company, (b) any declaration of a dividend in connection with the implementation
of a stockholder's rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under the Preferred Securities Guarantee, (d) the purchase of
fractional shares resulting from a reclassification of the Company's capital
stock, (e) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the exchange or conversion of such capital stock or
the security being exchanged or converted and (f) purchases of Common Stock
related to the issuance of Common Stock or rights under any of the Company's
benefit plans for its directors, officers or employees or any of the Company's
dividend reinvestment plans) if at such time (1) there shall have occurred any
event would constitute an Event of Default, (2) if the Securities are held by
the Property Trustee, the Company shall be in default with respect to its
payment obligations under the Preferred Securities Guarantee or (3) the Company
shall have given notice of its election of the exercise of its right to extend
the interest payment period and any such extension shall be continuing.
Subject to (i) the receipt of any required regulatory approval and
(ii) the receipt by the Company of an opinion of counsel to the effect that such
distribution will not cause the holders of the Preferred Securities to recognize
gain or loss for Federal income tax purposes, the Company will have the right at
any time to liquidate the East West Bancorp Capital Trust I and cause the
Securities to be distributed to the holders of the Trust Securities in
liquidation of the Trust.
The Indenture contains provisions for satisfaction and discharge of
the entire indebtedness of this Security upon compliance by the Company with
certain conditions set forth in the Indenture.
A-6
<PAGE>
The Securities are issuable only in registered form without coupons in
denominations of $_____.00 and any integral multiple thereof. As provided in
the Indenture and subject to the transfer restrictions limitations as may be
contained herein and therein from time to time, this Security is transferable by
the holder hereof on the Security Register of the Company, upon surrender of
this Security for registration of transfer at the office or agency of the
Company in the City and State of New York accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of authorized denominations and for the
same aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such
registration of transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this
Security, the Company, the Trustee, any authenticating agent, any paying agent,
any transfer agent and the registrar may deem and treat the holder hereof as the
absolute owner hereof (whether or not this Security shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone other
than the Security Registrar) for the purpose of receiving payment of or on
account of the principal hereof and (subject to the Indenture) interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any authenticating agent nor any paying agent nor any transfer agent nor any
registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
interest on this Security, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor Person, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PROVISIONS THEREOF.
A-7
<PAGE>
EXHIBIT 4.4
CERTIFICATE OF TRUST
OF
EAST WEST BANCORP CAPITAL TRUST I
This Certificate of Trust is being executed as of _____ __, 2000 for
the purposes of organizing a business trust pursuant to the Delaware Business
Trust Act, 12 Del. C. Sections 3801 et seq. (the "Act").
-------- -- ----
The undersigned hereby certifies as follows:
1. Name. The name of the business trust is "East West Bancorp
----
Capital Trust I" (the "Trust").
2. Delaware Trustee. The name and business address of the Delaware
----------------
trustee of the Trust meeting the requirements of Section 3807 of the Act are as
follows:
______________
______________
______________
______________
3. Effective. This Certificate of Trust shall be effective
---------
immediately upon filing in the Office of the Secretary of State of the State of
Delaware.
IN WITNESS WHEREOF, the undersigned being all of the trustees of the Trust,
have duly executed this Certificate of Trust as of the day and year first above
written.
_____________________________,
as Delaware Trustee
By: __________________________________
Name:_____________________________
Title:____________________________
ADMINISTRATIVE TRUSTEES
______________________
Name: Dominic Ng
_____________________
Name: Julia Gouw
_______________________
Name: Douglas Krause
<PAGE>
EXHIBIT 4.5
================================================================================
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
EAST WEST BANCORP CAPITAL TRUST I
Dated as of _______ __ , 2000
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.................................................. 1
-----------
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application............................. 8
--------------------------------
SECTION 2.2 Lists of Holders of Securities............................... 8
------------------------------
SECTION 2.3 Reports by the Property Trustee.............................. 9
-------------------------------
SECTION 2.4 Periodic Reports to Property Trustee......................... 9
------------------------------------
SECTION 2.5 Evidence of Compliance with Conditions Precedent............. 9
------------------------------------------------
SECTION 2.6 Events of Default; Waiver.................................... 9
-------------------------
SECTION 2.7 Event of Default; Notice..................................... 11
------------------------
ARTICLE III
ORGANIZATION
SECTION 3.1 Name........................................................ 11
----
SECTION 3.2 Office...................................................... 12
------
SECTION 3.3 Purpose..................................................... 12
-------
SECTION 3.4 Authority................................................... 12
---------
SECTION 3.5 Title to Property of the Trust.............................. 12
------------------------------
SECTION 3.6 Powers and Duties of the Administrative Trustees............ 13
------------------------------------------------
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees........ 15
----------------------------------------------------
SECTION 3.8 Powers and Duties of the Property Trustee................... 16
-----------------------------------------
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee. 19
-----------------------------------------------------------
SECTION 3.10 Certain Rights of Property Trustee.......................... 21
---------------------------------
SECTION 3.11 Delaware Trustee............................................ 23
----------------
SECTION 3.12 Execution of Documents...................................... 23
----------------------
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities...... 24
------------------------------------------------------
SECTION 3.14 Duration of Trust........................................... 24
-----------------
SECTION 3.15 Mergers..................................................... 24
------
SECTION 3.16 Property Trustee May File Proofs of Claim................... 26
-----------------------------------------
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities...................... 27
---------------------------------------
SECTION 4.2 Responsibilities of the Sponsor.............................. 27
------------------------------
SECTION 4.3 Right to Proceed............................................. 27
----------------
SECTION 4.4 Right to Dissolve Trust...................................... 28
-----------------------
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees: Appointment of Co-Trustee......................... 28
---------------------------------------------
SECTION 5.2 Delaware Trustee...................................................... 28
----------------
SECTION 5.3 Property Trustee; Eligibility......................................... 29
-----------------------------
SECTION 5.4 Certain Qualifications of Administrative Trustees and Delaware Trustee
----------------------------------------------------------------------
Generally......................................................... 30
---------
SECTION 5.5 Administrative Trustees............................................... 30
-----------------------
SECTION 5.6 Delaware Trustee...................................................... 31
----------------
SECTION 5.7 Appointment, Removal and Resignation of Trustees...................... 31
------------------------------------------------
SECTION 5.8 Vacancies among Trustees.............................................. 33
------------------------
SECTION 5.9 Effect of Vacancies................................................... 33
-------------------
SECTION 5.10 Meetings.............................................................. 33
--------
SECTION 5.11 Delegation of Power................................................... 34
------------------
SECTION 5.12 Merger, Conversion, Consolidation or Succession to Business........... 34
-----------------------------------------------------------
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions........................................................ 34
-------------
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.............................. 35
---------------------------------------
SECTION 7.2 Execution and Authentication......................................... 35
----------------------------
SECTION 7.3 Form and Dating...................................................... 36
---------------
SECTION 7.4 Registrar and Paying Agent........................................... 37
--------------------------
SECTION 7.5 Paying Agent to Hold Money in Trust.................................. 38
-----------------------------------
SECTION 7.6 Replacement Securities............................................... 38
----------------------
SECTION 7.7 Outstanding Preferred Securities..................................... 38
--------------------------------
SECTION 7.8 Preferred Securities in Treasury..................................... 38
--------------------------------
SECTION 7.9 Definitive Securities................................................ 39
---------------------
SECTION 7.10 Cancellation......................................................... 39
------------
SECTION 7.11 CUSIP Numbers........................................................ 40
-------------
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust................................. 40
------------------------------------
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.................................... 41
----------------------
SECTION 9.2 Transfer Procedures and Restrictions...................... 42
------------------------------------
SECTION 9.3 Deemed Security Holders................................... 45
-----------------------
SECTION 9.4 Book Entry Interests...................................... 45
--------------------
SECTION 9.5 Notices to Clearing Agency................................ 46
--------------------------
SECTION 9.6 Appointment of Successor Clearing Agency.................. 46
----------------------------------------
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability................................................ 46
--------
SECTION 10.2 Exculpation.............................................. 47
-----------
SECTION 10.3 Fiduciary Duty........................................... 47
--------------
SECTION 10.4 Indemnification.......................................... 48
---------------
SECTION 10.5 Outside Businesses....................................... 51
------------------
SECTION 10.6 Compensation; Fees....................................... 51
------------------
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.............................................. 52
----------
SECTION 11.2 Certain Accounting Matters............................... 52
--------------------------
SECTION 11.3 Banking.................................................. 52
-------
SECTION 11.4 Withholding.............................................. 52
-----------
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments............................................... 53
----------
SECTION 12.2 Meetings of the Holders; Action by Written Consent....... 55
--------------------------------------------------
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee........ 56
--------------------------------------------------
SECTION 13.2 Representations and Warranties of Delaware Trustee........ 57
--------------------------------------------------
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices................................................ 58
-------
SECTION 14.2 Governing Law.......................................... 59
-------------
SECTION 14.3 Intention of the Parties............................... 59
------------------------
SECTION 14.4 Headings............................................... 59
--------
SECTION 14.5 Successors and Assigns................................. 60
----------------------
SECTION 14.6 Partial Enforceability................................. 60
----------------------
SECTION 14.7 Counterparts........................................... 60
------------
ANNEX I TERMS OF SECURITIES.................................... I-1
EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE................. A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE.................... A2-1
EXHIBIT B SPECIMEN OF DEBENTURE.................................. B-1
EXHIBIT C UNDERWRITING AGREEMENT................................. C-1
</TABLE>
iv
<PAGE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act
of 1939, as amended Section of Declaration
------------------- ----------------------
<S> <C>
310(a)........................................... 5.3
310(b)........................................... 5.3(c), 5.3(d)
311(a)........................................... 2.2(b)
311(b)........................................... 2.2(b)
312(a)........................................... 2.2(a)
312(b)........................................... 2.2(b)
313.............................................. 2.3
314(a)........................................... 2.4; 3.6(j)
314(c)........................................... 2.5
315(a)........................................... 3.9
315(b)........................................... 2.7(a)
315(c)........................................... 3.9(a)
315(d)........................................... 3.9(b)
316(a)........................................... 2.6
316(c)........................................... 3.6(e)
317(a)........................................... 3.8(e); 3.8(h)
317(b)........................................... 3.8(i); 7.5
</TABLE>
- ---------------
* This Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
v
<PAGE>
AMENDED AND RESTATED DECLARATION OF TRUST
OF
EAST WEST BANCORP CAPITAL TRUST I
__________ __, 2000
AMENDED AND RESTATED DECLARATION OF TRUST, including Annex I and all
exhibits attached hereto (this "Declaration"), dated and effective as of
________ __, 2000, by the Trustees (as defined herein), the Sponsor (as defined
herein) and by the holders, from time to time, of undivided beneficial interests
in the assets of the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees (other than the Property Trustee (as defined
herein)) and the Sponsor established East West Bancorp Capital Trust I(the
"Trust"), a trust formed under the Business Trust Act (as defined herein)
pursuant to a Declaration of Trust dated as of _______ __, 2000 (the "Original
Declaration"), and a Certificate of Trust filed with the Secretary of State of
the State of Delaware on ________ __, 2000 (the "Certificate of Trust"), for the
sole purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain Debentures of the Debenture Issuer (each as hereinafter
defined), and engaging in only those other activities that are necessary or
incidental thereto; and
WHEREAS, as of the date hereof, no interests in the Trust have been
issued; and
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate in its entirety each and every term and provision of the
Original Declaration;
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a statutory business trust under the Business Trust Act
and that this Declaration constitute the governing instrument of such business
trust, the Trustees declare that all assets contributed to the Trust will be
held in trust for the benefit of the Holders (as defined herein), from time to
time, of the securities representing undivided beneficial interests in the
assets of the Trust issued hereunder, subject to the provisions of this
Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
-----------
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to them in this
Section 1.1;
<PAGE>
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration" are
to this Declaration as modified, supplemented or amended from time to
time;
(d) all references in this Declaration to Articles and Sections
and Annexes and Exhibits are to Articles and Sections of and Annexes and
Exhibits to this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Administrative Trustee" has the meaning set forth in Section
----------------------
5.1(b).
"Affiliate" has the same meaning as given to that term in Rule 405
---------
under the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent or Registrar.
-----
"Authorized Officer" of a Person means any other Person that is
------------------
authorized to legally bind such former Person.
"Book Entry Interest" means a beneficial interest in a Global
-------------------
Certificate registered in the name of a Clearing Agency or its nominee,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a Saturday or a Sunday or
------------
a day on which banking institutions in the cities of New York, New York, or San
Marino, California are authorized or required by law or executive order to
close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
------------------
Code, (S)3801 et seq., as it may be amended from time to time, or any successor
-- ---
legislation.
"Clearing Agency" means an organization registered as a "Clearing
---------------
Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary
for the Preferred Securities and in whose name or in the name of a nominee of
that organization shall be registered a Global Certificate and which shall
undertake to effect book entry transfers and pledges of the Preferred
Securities.
2
<PAGE>
"Clearing Agency Participant" means a broker, dealer, bank, other
---------------------------
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Time" means the "Closing Date" under the Underwriting
------------
Agreement, including pursuant to the exercise of any over-allotment option
granted to the underwriter thereunder.
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time, or any successor legislation. A reference to a specific section of the
Code refers not only to such specific section but also to any corresponding
provision of any federal tax statute enacted after the date of this Declaration,
as such specific section or corresponding provision is in effect on the date of
application of the provisions of this Declaration containing such reference.
"Commission" means the United States Securities and Exchange
----------
Commission as from time to time constituted, or if any time after the execution
of this Declaration such Commission is not existing and performing the duties
now assigned to it under applicable Federal securities laws, then the body
performing such duties at such time.
"Common Securities" has the meaning specified in Section 7.1(a).
-----------------
"Common Securities Guarantee" means the guarantee agreement dated as
---------------------------
of ________ __, 2000 of the Sponsor in respect of the Common Securities.
"Company Indemnified Person" means (a) any Administrative Trustee; (b)
--------------------------
any Affiliate of any Administrative Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Administrative Trustee; or (d) any officer, employee or agent of the Trust or
its Affiliates.
"Corporate Trust Office" means the office of the Property Trustee at
----------------------
which the corporate trust business of the Property Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Agreement is located at _______________________,
________________, _____________________.
"Covered Person" means: (a) any officer, director, shareholder,
--------------
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Debentures" means the ____% Junior Subordinated Deferrable
-----------
Interest Debentures due ________ __, ____ of the Debenture Issuer issued
pursuant to the Indenture.
"Debenture Issuer" means East West Bancorp, Inc., a Delaware
----------------
corporation, or any successor entity resulting from any consolidation,
amalgamation, merger or other business combination, in its capacity as issuer of
the Debentures under the Indenture.
3
<PAGE>
"Debenture Trustee" means _______________________, a __________
-----------------
banking corporation, as trustee under the Indenture until a successor is
appointed thereunder, and thereafter means such successor trustee.
"Default" means an event, act or condition that with notice or lapse
-------
of time, or both, would constitute an Event of Default.
"Definitive Preferred Securities" shall have the meaning set forth
-------------------------------
in Section 7.3(c).
"Delaware Trustee" has the meaning set forth in Section 5.2.
----------------
"Direct Action" shall have the meaning set forth in Section 3.8(e).
-------------
"Distribution" means a distribution payable to Holders in accordance
------------
with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing
---
Agency.
"Event of Default" in respect of the Securities means an Event of
----------------
Default (as defined in the Indenture) that has occurred and is continuing in
respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
------------
from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in Section
----------------------------
10.4(b).
"Fiscal Year" has the meaning set forth in Section 11.1.
-----------
"Global Preferred Security" has the meaning set forth in Section
-------------------------
7.3(a).
"Holder" means a Person in whose name a Security is registered, such
------
Person being a beneficial owner within the meaning of the Business Trust Act;
provided, however, that in determining whether the Holders of the requisite
liquidation amount of Preferred Securities have voted on any matter provided for
in this Declaration, then for the purpose of such determination only (and not
for any other purpose hereunder), if the Preferred Securities remain in the form
of one or more Global Certificates, the term "Holders" shall mean the holder of
the Global Certificate acting at the direction of the Preferred Security
Beneficial Owners.
"Indemnified Person" means a Company Indemnified Person or a
------------------
Fiduciary Indemnified Person.
"Indenture" means the Indenture dated, as of ___________ __, 2000,
---------
between the Debenture Issuer and the Debenture Trustee, as amended or
supplemented from time to time.
4
<PAGE>
"Investment Company" means an investment company as defined in the
------------------
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
----------------------
amended from time to time, or any successor legislation.
"Investment Company Event" has the meaning set forth in Annex I.
------------------------
"Legal Action" has the meaning set forth in Section 3.6(g).
------------
"List of Holders" has the meaning set forth in Section 2.2(a).
---------------
"Majority in liquidation amount" means, with respect to the Trust
------------------------------
Securities, except as provided in the terms of the Preferred Securities or by
the Trust Indenture Act, Holder(s) of outstanding Trust Securities voting
together as a single class or, as the context may require, Holders of
outstanding Preferred Securities or Holders of outstanding Common Securities
voting separately as a class, who are the record owners of more than 50% of the
aggregate liquidation amount of all outstanding Securities of the relevant
class.
"Officers' Certificate" means, with respect to any Person, a
---------------------
certificate signed by any two of the following: the Chairman, a Vice Chairman,
the Chief Executive Officer, the President, the Chief Financial Officer, a Vice
President, the Comptroller, the Secretary or an Assistant Secretary of such
Person. Any Officers' Certificate delivered by the Trust shall be signed by at
least one Administrative Trustee. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Declaration 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.
"Opinion of Counsel" means a written opinion of counsel, who (except
------------------
as specifically provided to the contrary herein by reference to "independent
counsel") may be an employee of the Sponsor, and who shall be acceptable to the
Property Trustee.
"Paying Agent" has the meaning specified in Section 7.4.
------------
5
<PAGE>
"Payment Amount" has the meaning specified in Section 6.1.
--------------
"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.
"Preferred Security Beneficial Owner" means, with respect to a Book
-----------------------------------
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Preferred Securities" means the _____% Cumulative Trust Preferred
--------------------
Securities.
"Preferred Securities Guarantee" means the guarantee agreement dated
------------------------------
as of ________ __, 2000 of the Sponsor in respect of the Preferred Securities.
"Property Trustee" has the meaning set forth in Section 5.3(a).
----------------
"Property Trustee Account" has the meaning set forth in Section
------------------------
3.8(c)(i).
"Prospectus" has the meaning set forth in Section 3.6(b)(i).
----------
"Quorum" means a majority of the Administrative Trustees or, if there
------
are only two Administrative Trustees, both of them.
"Registrar" has the meaning set forth in Section 7.4.
---------
"Registration Statement" has the meaning set forth in Section
----------------------
3.6(b)(i).
"Regulatory Capital Event" has the meaning set forth in Annex I.
------------------------
"Related Party" means, with respect to the Sponsor, any direct or
-------------
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means any officer within the Corporate Trust
-------------------
Office of the Property Trustee with direct responsibility for the administration
of this Declaration 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.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act, or any
---------
successor rule or regulation.
6
<PAGE>
"Securities" or "Trust Securities" means the Common Securities and
---------- ----------------
the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time, or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee and
---------------------
the Preferred Securities Guarantee.
"Special Event" has the meaning set forth in Section 4(c) of Annex I
-------------
hereto.
"Sponsor" means East West Bancorp, Inc., a Delaware corporation, or
-------
any successor entity resulting from any merger, consolidation, amalgamation or
other business combination, in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning set forth in Section
--------------------------
5.7(b)(ii).
"Successor Entity" has the meaning set forth in Section 3.15(b)(i).
----------------
"Successor Property Trustee" has the meaning set forth in Section
--------------------------
3.8(f)(ii).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
--------------
"Tax Event" has the meaning set forth in Annex I.
---------
"10% in liquidation amount" means, with respect to the Trust
-------------------------
Securities, except as provided in the terms of the Preferred Securities or by
the Trust Indenture Act, Holder(s) of outstanding Trust Securities voting
together as a single class or, as the context may require, Holders of
outstanding Preferred Securities or Holders of outstanding Common Securities
voting separately as a class, who are the record owners of 10% or more of the
aggregate liquidation amount of all outstanding Securities of the relevant
class.
"Treasury Regulations" means the income tax regulations, including
--------------------
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
-------------------
amended from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has signed this
------- --------
Declaration as a trustee, so long as such Person shall continue as a trustee in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
7
<PAGE>
"Underwriting Agreement" means the Underwriting Agreement for the
----------------------
initial offering and sale of Preferred Securities in the form of Exhibit C.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
--------------------------------
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration in order for this
Declaration to be qualified under the Trust Indenture Act 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 and to the extent that any provision of this Declaration
conflicts with the duties imposed by (S)(S) 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the Trust's classification as a grantor trust for United States
federal income tax purposes or the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
------------------------------
(a) Each of the Sponsor and the Administrative Trustees on behalf of
the Trust shall provide the Property Trustee, unless the Property Trustee is
Registrar for the Securities, (i) within 10 Business Days after each record date
for payment of Distributions, a list, in such form as the Property Trustee may
reasonably require, of the names and addresses of the Holders ("List of
Holders") as of such record date, provided that neither the Sponsor nor the
-------- ----
Administrative Trustees on behalf of the Trust shall be obligated to provide
such List of Holders at any time that the List of Holders does not differ from
the most recent List of Holders given to the Property Trustee by the Sponsor and
the Administrative Trustees on behalf of the Trust, and (ii) at any other time,
within 30 days of receipt by the Trust of a written request for a List of
Holders as of a date no more than 14 days before such List of Holders is given
to the Property Trustee. The Property Trustee shall preserve, in as current a
form as is reasonably practicable, all information contained in Lists of Holders
given to it or which it receives in the capacity as Paying Agent (if acting in
such capacity), provided that the Property Trustee may destroy any List of
-------- ----
Holders previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under
(S)(S) 311(a), 311(b) and 312(b) of the Trust Indenture Act.
8
<PAGE>
SECTION 2.3 Reports by the Property Trustee.
-------------------------------
Within 60 days after May 15 of each year, commencing May 15, 2000,
the Property Trustee shall provide to the Holders of the Preferred Securities
such reports dated as of such May 15 as are required by (S) 313 of the Trust
Indenture Act, if any, in the form and in the manner provided by (S) 313 of the
Trust Indenture Act. The Property Trustee shall also comply with the
requirements of (S) 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
------------------------------------
Each of the Sponsor and the Administrative Trustees on behalf of
the Trust shall provide to the Property Trustee such documents, reports and
information as are required by (S) 314 of the Trust Indenture Act (if any) and
the compliance certificate required by (S) 314 of the Trust Indenture Act in the
form, in the manner and at the times required by (S) 314(a)(4) of the Trust
Indenture Act, such compliance certificate to be delivered annually on or before
120 days after the end of each fiscal year of the Sponsor. Delivery of such
documents, reports and information to the Property Trustee is for informational
purposes only and the Property Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Sponsor's compliance with any of
its covenants hereunder (as to which the Property Trustee is entitled to rely
exclusively on Officers' Certificates).
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
------------------------------------------------
Each of the Sponsor and the Administrative Trustees on behalf of
the Trust shall provide to the Property Trustee such evidence of compliance with
any conditions precedent provided for in this Declaration that relate to any of
the matters set forth in (S) 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to (S) 314(c)(1) of the
Trust Indenture Act may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
-------------------------
(a) The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default in respect of the Preferred
Securities and its consequences, provided that, if the underlying Event of
-------- ----
Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default
under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority
in aggregate principal amount of the holders of the Debentures (a "Super
Majority") to be waived under the Indenture, the Event of Default under
the Declaration may only be waived by the vote of the Holders of at least
the proportion in aggregate liquidation amount of the Preferred Securities
that the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding.
9
<PAGE>
The foregoing provisions of this Section 2.6(a) shall be in lieu of (S)
316(a)(1)(B) of the Trust Indenture Act and such (S) 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote or
consent of the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
-------- ----
Default under the Indenture:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event of
Default under the Declaration as provided below in this Section 2.6(b),
the Event of Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived under the Indenture, except where the Holders of the Common
Securities are deemed to have waived such Event of Default under the
Declaration as provided below in this Section 2.6(b), the Event of Default
under the Declaration may only be waived by the vote of the Holders of at
least the proportion in aggregate liquidation amount of the Common
Securities that the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
- -------- -------
any such Event of Default and all Events of Default with respect to the Common
Securities and their consequences until Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated, and until
such Events of Default have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Preferred Securities and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee in accordance with the terms of
the Securities. The foregoing provisions of this Section 2.6(b) shall be in
lieu of (S)(S) 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
(S)(S) 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Declaration and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section
2.6(b), upon such waiver, any such default shall cease to exist and any Event of
Default with respect to the Common Securities arising therefrom shall be deemed
to have been cured for every purpose of this Declaration, but no such waiver
shall extend to any subsequent or other default or Event of Default with respect
to the Common Securities or impair any right consequent thereon.
10
<PAGE>
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee, at the direction of the Holders of the Preferred Securities,
constitutes a waiver of the corresponding Event of Default under this
Declaration. The foregoing provisions of this Section 2.6(c) shall be in lieu
of (S) 316(a)(1)(B) of the Trust Indenture Act and such (S) 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
------------------------
(a) The Property Trustee shall, within 90 days after the
occurrence of a Default (as such term is defined in the Indenture) actually
known to a Responsible Officer, transmit by mail, first class postage prepaid,
to the Holders of the Preferred Securities, the Administrative Trustees and the
Sponsor, notices of all Defaults with respect to the Securities actually known
to a Responsible Officer, unless such Defaults have been cured before the giving
of such notice; provided that, except for a default in the payment of principal
-------- ----
of or interest (including Compounded Interest and Additional Sums (as such terms
are defined in the Indenture) if any, on any of the Debentures, the Property
Trustee shall be protected in withholding such notice if and so long as a
Responsible Officer in good faith determines that the withholding of such notice
is in the interests of the Holders. The Sponsor and the Administrative Trustees
shall file annually with the Property Trustee a certification as to whether or
not they are in compliance with all the conditions and covenants applicable to
them under this Declaration.
(b) The Property Trustee shall not be deemed to have knowledge of
any default except:
(i) a default under Sections 5.01(a) (other than the payment
of Compounded Interest and Additional Sums, each as defined in the
Indenture) and 5.01(b) of the Indenture provided that the Property Trustee
is the Paying Agent under the Indenture; or
(ii) any default as to which the Property Trustee shall have
received written notice at the corporate trust office of the Property
Trustee and such notice references the Preferred Securities and this
Declaration or of which a Responsible Officer charged with the
administration of the Declaration shall have actual knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
----
The Trust is named "East West Bancorp Capital Trust I" as such name
may be modified from time to time by the Administrative Trustees following
written notice to the Delaware Trustee, the Property Trustee and the Holders.
The Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Administrative Trustees.
11
<PAGE>
SECTION 3.2 Office.
------
The address of the principal office of the Trust is c/o East West
Bancorp, Inc., 415 Huntington Drive, San Marino, California 91108. On ten
Business Days written notice to the Delaware Trustee, the Property Trustee and
the Holders of Securities, the Administrative Trustees may designate another
principal office.
SECTION 3.3 Purpose.
-------
The exclusive purposes and functions of the Trust are (a) to issue
and sell the Securities, (b) use the proceeds from the sale of the Securities to
acquire the Debentures, and (c) except as otherwise limited herein, to engage in
only those other activities that are necessary or incidental thereto. The Trust
shall not borrow money, issue debt or reinvest proceeds derived from
investments, mortgage or pledge any of its assets, or otherwise undertake (or
permit to be undertaken) any activity that would cause the Trust not to be
classified for United States federal income tax purposes as a grantor trust.
The Trust will be classified as a grantor trust for United States
federal income tax purposes under Subpart E of Subchapter J of the Code,
pursuant to which the owners of the Preferred Securities and the Common
Securities will be the owners of the Trust for United States federal income tax
purposes, and such owners will include directly in their gross income the
income, gain, deduction or loss of the Trust as if the Trust did not exist. By
the acceptance of this Trust, none of the Trustees, the Sponsor or the Holders
of the Securities will take any position which is contrary to the classification
of the Trust as a grantor trust for United States federal income tax purposes.
SECTION 3.4 Authority.
---------
Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Administrative Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Administrative Trustees in accordance with their powers
shall constitute the act of and serve to bind the Trust and an action taken by
the Property Trustee on behalf of the Trust in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of the Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Declaration.
SECTION 3.5 Title to Property of the Trust.
------------------------------
Except as may be otherwise provided in this Declaration, legal
title to all assets of the Trust shall be vested in the Property Trustee for the
benefit of the Trust and the Holders. The Holders shall not have legal title to
any part of the assets of the Trust, but shall have an undivided beneficial
interest in the assets of the Trust.
12
<PAGE>
SECTION 3.6 Powers and Duties of the Administrative Trustees.
------------------------------------------------
The Administrative Trustees shall have the exclusive power, duty
and authority to cause the Trust to engage in the following activities:
(a) to execute, enter into and deliver the Common Securities
Subscription Agreement and to execute, deliver, issue and sell the Securities in
accordance with this Declaration and pursuant to the Underwriting Agreement;
provided, however, that except as contemplated in Section 7.1(a), (i) the Trust
- -------- -------
may issue no more than one series of Preferred Securities and no more than one
series of Common Securities, (ii) there shall be no interests in the Trust other
than the Securities, and (iii) the issuance of Securities shall be limited to a
simultaneous issuance of both the Preferred Securities and Common Securities at
the Closing Time;
(b) in connection with the issuance and sale of the Preferred
Securities, to:
(i) prepare and execute a Prospectus (the "Prospectus") in
preliminary and final form prepared by the Sponsor, in relation to the
offering and sale of the Preferred Securities and to execute and file with
the Commission a registration statement on Form S-3(the "Registration
Statement"), including any amendments thereto, for the offering and sale
of the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be necessary, in order to
qualify or register all or part of the Preferred Securities in any State
in which the Sponsor has determined to qualify or register such Preferred
Securities for sale;
(iii) execute and file an application, prepared by the Sponsor,
to permit the Preferred Securities to trade or be quoted or listed in or
on the Nasdaq National Market or any other securities exchange or
quotation system.
(iv) execute and deliver letters, documents or instruments
with DTC and other Clearing Agencies relating to the Preferred Securities;
(v) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared by the
Sponsor, relating to the registration of the Preferred Securities under
Section 12(b) or (g) of the Exchange Act; and
(vi) execute and enter into the Underwriting Agreement
providing for the sale of the Preferred Securities;
(c) to execute, enter into and deliver the Debenture Subscription
Agreement and to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that the
-------- -------
Administrative Trustees shall cause legal title to the Debentures to be held of
record in the name of the Property Trustee for the benefit of the Holders;
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(d) to give the Sponsor and the Property Trustee prompt written notice
of the occurrence of a Special Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with respect
to, for the purposes of (S) 316(c) of the Trust Indenture Act, Distributions,
voting rights, redemptions and exchanges, and to issue relevant notices to the
Holders of Preferred Securities and Holders of Common Securities as to such
actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of
the Administrative Trustees pursuant to the terms of this Declaration and the
Securities;
(g) to the fullest extent permitted by law, to bring or defend, pay,
collect, compromise, arbitrate, resort to legal action, or otherwise adjust
claims or demands of or against the Trust ("Legal Action"), unless pursuant to
Section 3.8(e), the Property Trustee has the exclusive power to bring such Legal
Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants to conduct the services that the Administrative Trustees have
authority to conduct directly and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(j) to give the certificate required by (S) 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be executed by any
Administrative Trustee;
(k) to incur expenses that are necessary or incidental to carry out
any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, Registrar for the
Securities or to appoint a Paying Agent for the Securities as provided in
Section 7.4 except for such time as such power to appoint a Paying Agent is
vested in the Property Trustee;
(m) to give prompt written notice to the Property Trustee and to
Holders of any notice received from the Debenture Issuer of its election to
defer payments of interest on the Debentures by extending the interest payment
period under the Indenture;
(n) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders or to enable the Trust
to effect the purposes for which the Trust was created;
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(o) to take any action, not inconsistent with this Declaration or
with applicable law, that the Administrative Trustees determine in their
discretion to be necessary or desirable in carrying out the activities of the
Trust as set out in this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust or causing each Holder to
be treated as owning an undivided beneficial interest in the Debentures;
and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer for
United States federal income tax purposes;
provided that such action does not adversely affect the interest of the Holders;
(p) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Administrative Trustees, on
behalf of the Trust; and
(q) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
The Administrative Trustees must exercise the powers set forth in
this Section 3.6 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3, and the Administrative Trustees shall not
take any action that is inconsistent with the purposes and functions of the
Trust set forth in Section 3.3.
Subject to this Section 3.6, the Administrative Trustees shall have
none of the powers or the authority of the Property Trustee set forth in Section
3.8.
The Administrative Trustees may take all actions on behalf of the
Trust that are not specifically required by this Declaration to be taken by any
other Trustee.
Any expenses incurred by the Administrative Trustees pursuant to
this Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
----------------------------------------------------
(a) The Trust shall not, and the Trustees (including the Property
Trustee and the Delaware Trustee) shall not, engage in any activity other than
as required or authorized by this Declaration. The Trust shall not:
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(i) invest any proceeds received by the Trust from holding
the Debentures, but shall distribute all such proceeds to Holders pursuant
to the terms of this Declaration and of the Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than
loans represented by the Debentures;
(v) possess any power or otherwise act in such a way as to
vary the Trust assets or the terms of the Securities in any way
whatsoever, except as otherwise expressly provided herein;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities;
(vii) other than as provided in this Declaration or Annex I,
(A) direct the time, method and place of conducting any proceeding with
respect to any remedy available to the Debenture Trustee, or exercising
any trust or power conferred upon the Debenture Trustee with respect to
the Debentures, (B) waive any past default that is waivable under the
Indenture or (C) exercise any right to rescind or annul any declaration
that the principal of all the Debentures shall be due and payable; or
(viii) consent to any amendment, modification or termination of
the Indenture or the Debentures where such consent shall be required
unless the Trust shall have received (A) an opinion of tax counsel (who
shall not be an employee of the Sponsor or the Trust) experienced in such
matters to the effect that such amendment, modification or termination
will not cause more than an insubstantial risk that for United States
federal income tax purposes the Trust will not be classified as a grantor
trust, and (B) an Opinion of Counsel from a firm experienced in such
matters, to the effect that the amendment, modification or termination
will not cause more than an insubstantial risk that the Trust will be
deemed to be an investment company required to be registered under the
Investment Company Act of 1940, as amended.
SECTION 3.8 Powers and Duties of the Property Trustee.
-----------------------------------------
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Property Trustee in trust for the benefit of the
Holders. The right, title and interest of the Property Trustee to the
Debentures shall vest automatically in each Person who may hereafter be
appointed as Property Trustee in accordance with Section 5.7. Such vesting and
cessation of title shall be effective whether or not conveyancing documents with
regard to the Debentures have been executed and delivered.
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(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Administrative Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Property Trustee Account") in the name of and under
the exclusive control of the Property Trustee on behalf of the Holders
and, upon the receipt of payments of funds made in respect of the
Debentures held by the Property Trustee, deposit such funds into the
Property Trustee Account and make payments or cause the Paying Agent to
make payments to the Holders from the Property Trustee Account in
accordance with Section 6.1. Funds in the Property Trustee Account shall
be held uninvested until disbursed in accordance with this Declaration.
The Property Trustee Account shall be an account that is maintained with a
banking institution the rating on whose long-term unsecured indebtedness
is rated in one of four highest rating categories by a "nationally
recognized statistical rating organization", as that term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Trust Securities
to the extent the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the
Administrative Trustees in accordance with the terms of the Securities,
engage in such ministerial activities as shall be necessary or appropriate
to effect the distribution of the Debentures to Holders upon the
occurrence of certain events set forth in Sections 2.7 and 8.1 hereof.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of this Declaration and the Securities.
(e) Subject to Section 3.9(a), the Property Trustee shall take any
Legal Action which arises out of or in connection with an Event of Default of
which a Responsible Officer has actual knowledge or the Property Trustee's
duties and obligations under this Declaration or the Trust Indenture Act and if
the Property Trustee shall have failed to take such Legal Action following a
written request and offer of indemnity or security, satisfactory to the Property
Trustee, from the Holders, the Holders of the Preferred Securities may, to the
fullest extent permitted by law, take such Legal Action, to the same extent as
if such Holders of Preferred Securities held an aggregate principal amount of
Debentures equal to the aggregate liquidation amount of such Preferred
Securities, without first proceeding against the Property Trustee or the Trust;
provided, however, that if an Event of Default has occurred and is continuing
- -------- -------
and such event is attributable to the failure of the Debenture Issuer to pay the
principal of or interest (including Compounded Interest and Additional Sums
(each as defined in Indenture), if any) on the Debentures on the date such
principal or interest (including Compounded Interest and Additional Sums, if
any) is otherwise payable (or in the case of redemption, on the redemption
date), then a Holder of Preferred Securities may directly
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institute a proceeding for enforcement of payment to such Holder of the
principal of or interest (including Compounded Interest and Additional Sums, if
any), if any, on the Debentures having a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such Holder (a "Direct
Action") on or after the respective due date specified in the Debentures. In
connection with such Direct Action, the Holders of the Common Securities will be
subrogated to the rights of such Holder of Preferred Securities to the extent of
any payment made by the Debenture Issuer to such Holder of Preferred Securities
in such Direct Action. If the Property Trustee fails to declare the principal of
all of the Debentures due and payable upon an Event of Default (as defined in
the Indenture), so long as the Property Trustee is holding the Debentures on
behalf of the Trust, the Holders of at least 25% in liquidation amount of the
Preferred Securities then outstanding will have the right to declare the
Debentures immediately due and payable. Except as provided in this Section
3.8(e), the Holders of Preferred Securities will not be able to exercise
directly any other remedy available to the holders of the Debentures.
(f) The Property Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation distributed to the Holders pursuant to the terms of the
Securities; or
(ii) a successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 5.7 (a "Successor
Property Trustee").
(g) The Property Trustee shall have the legal power to exercise all
of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if an Event of Default actually known to a Responsible Officer
occurs and is continuing, the Property Trustee shall, for the benefit of
Holders, enforce its rights, including without limitation, its rights under the
Indenture as holder of the Debentures, subject to the rights of the Holders
pursuant to the terms of such Securities.
(h) The Property Trustee shall be authorized to undertake any
actions set forth in Section 317(a) of the Trust Indenture Act.
(i) For such time as the Property Trustee is the Paying Agent, the
Property Trustee may authorize one or more Persons to act as additional Paying
Agents and to pay Distributions, redemption payments or liquidation payments on
behalf of the Trust with respect to all Securities and any such Paying Agent
shall comply with Section 317(b) of the Trust Indenture Act. Any such additional
Paying Agent may be removed by the Property Trustee at any time the Property
Trustee remains as Paying Agent and a successor Paying Agent or additional
Paying Agents may be (but are not required to be) appointed at any time by the
Property Trustee while the Property Trustee is so acting as Paying Agent.
(j) Subject to this Section 3.8, the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the Administrative
Trustees set forth in Section 3.6.
Notwithstanding anything expressed or implied to the contrary in
this Declaration or any Annex or Exhibit hereto, (i) the Property Trustee must
exercise the powers set forth in this
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Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3 and (ii) the Property Trustee shall not take
any action that is inconsistent with the purposes and functions of the Trust set
out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.
-----------------------------------------------------------
(a) 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 Declaration and in the Securities and no implied covenants shall be read
into this Declaration against the Property Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6) of
which a Responsible Officer has actual knowledge, the Property Trustee shall
exercise such of the rights and powers vested in it by this Declaration, 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.
(b) No provision of this Declaration 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) prior to the occurrence of an 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 Property Trustee
shall be determined solely by the express provisions of this
Declaration and in the Securities and the Property Trustee shall not
be liable except for the performance of such duties and obligations
as are specifically set forth in this Declaration and in the
Securities, and no implied covenants or obligations shall be read
into this Declaration or the Securities against the Property
Trustee; and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property 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 Property Trustee and conforming to the requirements of this
Declaration; provided, however, that in the case of any such
-------- -------
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Property Trustee, the
Property Trustee shall be under a duty to examine the same to
determine whether or not they conform to the require ments of this
Declaration (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);
(ii) the Property 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 Property Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
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(iii) 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 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 Declaration;
(iv) no provision of this Declaration shall require the
Property 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 it shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Declaration or indemnity
reasonably satisfactory to the Property Trustee against such risk or
liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and the
Property Trustee Account shall be to deal with such property in a similar
manner as 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 Declaration and the Trust Indenture
Act;
(vi) the Property Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or assessments levied thereon or in
connection therewith;
(vi) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree in writing
with the Sponsor. Money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the Property
Trustee Account maintained by the Property Trustee pursuant to Section
3.8(c)(i) and except to the extent otherwise required by law;
(vi) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the Sponsor
with their respective duties under this Declaration, nor shall the
Property Trustee be liable for any act, omission, default or misconduct of
the Administrative Trustees or the Sponsor; and
(ix) the Property Trustee shall not be deemed to have notice
of any Event of Default unless a Responsible Officer of the Property
Trustee has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Property Trustee at the
Corporate Trust Office of the Property Trustee.
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SECTION 3.10 Certain Rights of Property Trustee.
----------------------------------
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively 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 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 Sponsor or the
Administrative Trustees contemplated by this Declaration may be
sufficiently evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, 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 conclusively
rely upon an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Sponsor or the Administrative Trustees;
(iv) 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 registration thereof;
(v) the Property Trustee may consult with counsel or other
experts of its selection and the advice or opinion of such counsel and
experts with respect to legal matters or advice within the scope of such
experts' area of expertise 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 counsel may be counsel to the Sponsor or any of its Affiliates, and
may include any of its employees. The Property Trustee shall have the
right at any time to seek instructions concerning the administration of
this Declaration from any court of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration at
the request or direction of any Holder, unless such Holder shall have
provided to the Property Trustee security or indemnity, reasonably
satisfactory to the Property Trustee, against the costs, expenses
(including reasonable attorneys' fees and expenses and the expenses of the
Property Trustee's agents, nominees or custodians) 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 Property
Trustee; provided that, nothing contained in this Section 3.10(a)(vi)
shall be taken to relieve the Property Trustee, upon the occurrence of an
Event of Default, of its obligation to exercise the rights and powers
vested in it by this Declaration;
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(vii) 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,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Property Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Property Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Trust, personally or by
agent or attorney at the sole cost of the Sponsor and shall incur no
liability or additional liability of any kind by reason of such inquiry or
investigation;
(viii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, custodians, nominees or attorneys and the Property Trustee
shall not be responsible for any misconduct or negligence on the part of
any agent, custodian, nominee or attorney appointed with due care by it
hereunder;
(ix) any authorized or required action taken by the
Property Trustee or its agents hereunder shall bind the Trust and the
Holders, and the signature of the Property Trustee or its agents alone
shall be sufficient and effective to perform any such action and no third
party shall be required to inquire as to the authority of the Property
Trustee to so act or as to its compliance with any of the terms and
provisions of this Declaration, both of which shall be conclusively
evidenced by the Property Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration 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 which instructions may only be given by the Holders of the same
proportion in liquidation amount of the Securities as would be entitled to
direct the Property Trustee under the terms of the 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 conclusively relying on or acting
in or accordance with such instructions;
(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration;
(xii) the Property Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good faith,
without negligence, and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Declaration;
(xiii) the rights, privileges, protections, immunities and
benefits given to the Property Trustee, including, without limitation,
its right to be indemnified, are
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extended to, and shall be enforceable by, the Property Trustee in each of its
capacities hereunder, and to each agent, custodian and other Person employed to
act hereunder; and
(xiv) If no Event of Default has occurred and is continuing
and the Property Trustee is required to decide between alternative causes of
action, construe ambiguous provisions in this Declaration or is unsure of the
application of any provision of this Declaration, and the matter is not one on
which the Holders are, under this Declaration, entitled to vote, then the
Property Trustee may take the action as is directed by, and, if not so directed,
may take action as it deems advisable and in the best interests of, the Holders
and will have no liability except for its own bad faith, negligence or willful
misconduct.
(b) No provision of this Declaration 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 3.11 Delaware Trustee.
----------------
Notwithstanding any other provision of this Declaration other than
Section 5.2, the Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities of
the Administrative Trustees or the Property Trustee described in this
Declaration, or any other duties or responsibilities except as expressly stated
in this Section 3.11. Except as set forth in Section 5.2, the Delaware Trustee
shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act; provided that, the
-------- ----
Delaware Trustee shall have the power and authority and is hereby authorized to
execute and file with the Secretary of State of the State of Delaware any
certificate required to be filed under the Business Trust Act, except as
provided in Section 8.1(b). In the event the Delaware Trustee shall at any time
be required to take any action or perform any duty hereunder, the Delaware
Trustee shall be entitled to the benefits of Section 3.9(b)(ii)-(viii) and
Section 3.10. No implied covenants or obligations shall be read into this
Declaration against the Delaware Trustee.
SECTION 3.12 Execution of Documents.
----------------------
Except as otherwise required by the Business Trust Act or this
Declaration, each Administrative Trustee, individually, is authorized to execute
on behalf of the Trust any documents that the Administrative Trustees have the
power and authority to execute pursuant to Section 3.6; provided that the
-------- ----
Registration Statement, including any amendments thereto, shall be signed by all
of the Administrative Trustees.
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SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained in this Declaration and the Securities shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration, the Debentures or the Securities.
SECTION 3.14 Duration of Trust.
-----------------
The Trust, unless dissolved pursuant to the provisions of Article VIII
hereof, shall continue without dissolution until _________ __, 2031.
SECTION 3.15 Mergers.
-------
(a) The Trust may not merge with or into, consolidate, amalgamate
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described in Section
3.15(b) and (c) of this Declaration or Sections 3 and 4 of Annex I.
(b) The Trust may, at the request of the Sponsor, with the
consent of the Administrative Trustees or, if there are more than two, a
majority of the Administrative Trustees and without the consent of the Holders,
the Delaware Trustee or the Property Trustee, merge with or into, consolidate,
amalgamate or be replaced by, or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to, a trust organized as
such under the laws of any State; provided that:
-------- ----
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the
Trust under the Securities; or
(B) substitutes for the Securities other securities
having substantially the same terms as the Securities (the
"Successor Securities") so long as the Successor Securities rank the
same as the Securities rank with respect to Distributions and
payments upon liquidation, redemption and otherwise;
(ii) the Sponsor expressly appoints a trustee of the
Successor Entity that possesses the same powers and duties as the Property
Trustee as the holder of the Debentures;
(iii) the Preferred Securities or the Successor Securities
are listed, or any Successor Securities will be listed upon notification
of issuance, on any national securities exchange or with another
organization on which the Preferred Securities are then listed or quoted,
if any;
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(iv) if the Preferred Securities (including any Successor
Securities) are rated by any nationally recognized statistical rating
organization prior to such transaction, such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause
the Preferred Securities (including any Successor Securities), or if the
Debentures are so rated, the Debentures, to be downgraded by any
nationally recognized statistical rating organization;
(v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders (including the holders of any
Successor Securities) in any material respect (other than with respect to
any dilution of such Holders' interests in the new entity);
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Sponsor has received an
opinion of an independent counsel to the Trust (who shall not be an
employee of the Sponsor or the Trust) experienced in such matters to the
effect that:
(A) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders (including the
holders of any Successor Securities) in any material respect (other
than with respect to any dilution of the Holders' interest in the
new entity);
(B) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, neither
the Trust nor the Successor Entity will be required to register as
an Investment Company; and
(C) the Trust will continue to be, or the Successor
Entity will be, classified as a grantor trust for United States federal
income tax purposes;
(viii) the Sponsor 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 Preferred Securities Guarantee and the
Common Securities Guarantee; and
(ix) there shall have been furnished to the Property
Trustee an Officer's Certificate and an Opinion of Counsel, each to the
effect that all conditions precedent in this Declaration to such
transaction have been satisfied.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with
the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets as an entirety or
25
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substantially as an entirety to, any other Person or permit any other Person to
consolidate, amalgamate, 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 not to be classified as a grantor
trust for United States federal income tax purposes.
SECTION 3.16 Property Trustee May File Proofs of Claim
-----------------------------------------
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
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 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 Securities (or, if the
Securities are original issue discount Securities, such portion of the
liquidation amount as may be specified in the terms of such Securities)
and to file such other papers 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 moneys 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
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.
26
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ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
---------------------------------------
At the Closing Time, the Sponsor will purchase all of the Common
Securities then issued by the Trust, in an amount equal to at least 3% of the
total capital of the Trust, at the same time as the Preferred Securities are
issued and sold.
SECTION 4.2 Responsibilities of the Sponsor.
-------------------------------
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare the Prospectus in preliminary and final form, and to
prepare and file the Registration Statement and any other necessary documents
with the Commission, including any amendments thereto and to pay any
registration fees in connection therewith;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and to do
any and all such acts, other than actions which must be taken by the Trust, and
advise the Trust of actions it must take, and prepare for execution and filing
any documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of any such
States;
(c) if deemed necessary or advisable by the Sponsor, to prepare for
filing by the Trust an application to permit the Preferred Securities to trade
or be quoted or listed in or on the National Market System or any other
securities exchange or quotation system;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A, including any amendments thereto, relating
to the registration of the Preferred Securities under Section 12(b) or (g) of
the Exchange Act; and
(e) to negotiate the terms of the Underwriting Agreement providing
for the sale of the Preferred Securities.
SECTION 4.3 Right to Proceed.
----------------
The Sponsor acknowledges the rights of the Holders of Preferred
Securities under Section 3.8(e) of the Declaration and Section 5(b) of Annex I,
in the event that a failure of the Trust to pay Distributions on the Preferred
Securities is attributable to the failure of the Debenture Issuer to pay
interest or principal on the Debentures, to institute a proceeding directly
against the Debenture Issuer for enforcement of its payment obligations on the
Debentures and the Sponsor irrevocably waives any right or remedy to require
that any such Holder take any action against the Trust or any other Person
before proceeding against the Sponsor.
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SECTION 4.4 Right to Dissolve Trust
-----------------------
The Sponsor will have the right to any time to dissolve the Trust and
after satisfaction of liabilities to creditors of the Trust as required by
applicable law, to cause the Debentures to be distributed to the Holders in
liquidation of the Trust. Such right is subject to the Sponsor's having
received (i) an Opinion of Counsel to the effect that such distribution will not
cause the Holder of Preferred Securities to recognize gain or loss for United
States federal income tax purposes and (ii) all required regulatory approvals.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees: Appointment of Co-Trustee.
---------------------------------------------
The number of Trustees initially shall be five (5), and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities, the number of Trustees may
be increased or decreased by vote of the Holders of a Majority in liquidation
amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities; provided, however, that, the number of Trustees shall in
-------- -------
no event be less than two (2); provided further that (1) one Trustee shall
-------- -------
satisfy the requirements of the Delaware Trustee pursuant to Section 5.2; (2)
there shall be at least one Trustee who is an officer of the Sponsor (an
"Administrative Trustee"); and (3) one Trustee shall be the Property Trustee for
so long as this Declaration is required to qualify as an indenture under the
Trust Indenture Act, and such Trustee may also serve as Delaware Trustee if it
meets the applicable requirements. Notwithstanding the above, 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 the Trust Indenture Act or of any
jurisdiction in which any part of the Trust's property may at the time be
located, the Holders of a Majority in liquidation amount of the Common
Securities acting as a class at a meeting of the Holders of the Common
Securities, and the Administrative Trustees shall have power to appoint one or
more Persons either to act as a co-trustee, jointly with the Property Trustee,
of all or any part of the Trust's property, or 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 such
capacity any property, title, right or power deemed necessary or desirable,
subject to the provisions of this Declaration. In case an Event of Default has
occurred and is continuing, the Property Trustee alone shall have power to make
any such appointment of a co-trustee.
SECTION 5.2 Delaware Trustee.
----------------
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be:
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(a) a natural person who is a resident of the State of Delaware; or
(b) 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
Section 3807(a) of the Business Trust Act and any other applicable law, provided
--------
that, if the Property Trustee has its principal place of business in the State
- ----
of Delaware and otherwise meets the requirements of applicable law, then the
Property Trustee shall also be the Delaware Trustee, the Person theretofore
serving as Delaware Trustee (if other than the Property Trustee) automatically
shall cease to be a Trustee, the Property Trustee promptly shall provide to the
Person theretofore serving as Delaware Trustee written notice of the same (in
relying on which the Person theretofore serving as Delaware Trustee shall be
fully justified and protected), the number of Trustees automatically shall be
reduced by one (1), the Property Trustee promptly shall cause the certificate of
trust of the Trust to be amended as necessary, and Section 3.11 shall have no
application.
SECTION 5.3 Property Trustee; Eligibility.
-----------------------------
(a) There shall at all times be one Trustee (the "Property Trustee")
which shall act as Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to
the requirements of the supervising or examining authority referred to
above, then for the purposes of this Section 5.3(a)(ii), 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 Property Trustee shall cease to be eligible to
so act under Section 5.3(a), the Property Trustee shall immediately resign in
the manner and with the effect set forth in Section 5.7(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Preferred Securities Guarantee and the Indenture shall be
deemed to be specifically described in this Declaration for purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
29
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(e) The initial Property Trustee shall be:
__________________
__________________
______________
__________________
Attention: Corporate Trust Trustee Administration
SECTION 5.4 Certain Qualifications of Administrative Trustees and Delaware
--------------------------------------------------------------
Trustee Generally.
-----------------
Each Administrative Trustee and the Delaware Trustee (unless the
Property Trustee also acts as Delaware 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 Authorized Officers.
SECTION 5.5 Administrative Trustees.
-----------------------
The initial Administrative Trustees shall be:
Dominic Ng
Julia Gouw
Douglas Krause
(a) Except as expressly set forth in this Declaration and except if a
meeting of the Administrative Trustees is called with respect to any matter over
which the Administrative Trustees have power to act, any power of the
Administrative Trustees may be exercised by, or with the consent of, any one
such Administrative Trustee.
(b) An Administrative Trustee shall have the authority set forth in
Section 3.12 to execute on behalf of the Trust any documents which the
Administrative Trustees have the power and authority to cause the Trust to
execute pursuant to Section 3.6; provided that the Registration Statement,
-------- ----
including any amendment thereto, shall be signed by all of the Administra tive
Trustees.
(c) An 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 purposes of signing any documents which the Administrative
Trustees have power and authority to cause the Trust to execute pursuant to
Section 3.6.
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SECTION 5.6 Delaware Trustee.
-----------------
The initial Delaware Trustee shall be:
_________________
_________________
________
_________________
Attention: Corporate Trust Department
SECTION 5.7 Appointment, Removal and Resignation of Trustees.
-------------------------------------------------
(a) Subject to Section 5.7(b) of this Declaration and to Section 6(b)
of Annex I hereto, Trustees may be appointed or removed without cause at any
time:
(i) until the issuance of any Securities, by written instrument
executed by the Sponsor;
(ii) unless an Event of Default shall have occurred and be
continuing after the issuance of any Securities, by vote of the Holders of
a Majority in liquidation amount of the Common Securities voting as a
class at a meeting of the Holders of the Common Securities; and
(iii) if an Event of Default shall have occurred and be
continuing after the issuance of the Securities, with respect to the
Property Trustee or the Delaware Trustee, by vote of Holders of a Majority
in liquidation amount of the Preferred Securities voting as a class at a
meeting of Holders of the Preferred Securities.
(b) (i) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 5.7(a) until a Successor Property Trustee has
been appointed and has accepted such appointment by written instrument executed
by such Successor Property Trustee and delivered to the Administrative Trustees
and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not be
removed in accordance with this Section 5.7(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under Sections
5.2 and 5.4 (a "Successor Delaware Trustee") has been appointed and has
accepted such appointment by written instrument executed by such Successor
Delaware Trustee and delivered to the Administrative Trustees and the
Sponsor.
(c) A Trustee appointed to office shall hold office until its or his
successor shall have been appointed or until his death or its dissolution, or
until his or its removal or resignation. Any Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
signed by the Trustee and delivered to the Sponsor and the Trust, which
31
<PAGE>
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that:
-------- -------
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument executed
by such Successor Property Trustee and delivered to the Trust, the
Sponsor and the resigning Property Trustee; or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the Holders; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee has
been appointed and has accepted such appointment by instrument executed by
such Successor Delaware Trustee and delivered to the Trust, the Sponsor
and the resigning Delaware Trustee.
(d) The Holders of the Common Securities or, if an Event of Default
shall have occurred and be continuing after the issuance of the Securities, the
Holders of the Preferred Securities shall use their best efforts to promptly
appoint a Successor Delaware Trustee or Successor Property Trustee, as the case
may be, if the Property Trustee or the Delaware Trustee delivers an instrument
of resignation in accordance with this Section 5.7.
(e) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.7 within 60 days after delivery of an instrument of resignation or removal,
the Property Trustee or Delaware Trustee resigning or being removed, as
applicable, may, at the expense of the Sponsor, petition any court of competent
jurisdiction for appointment of a Successor Property Trustee or Successor
Delaware Trustee, as applicable. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper, and appoint a Successor Property
Trustee or Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for the
acts or omissions to act of any Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
(g) At the time of resignation or removal of the Property Trustee or
the Delaware Trustee, the Debenture Issuer shall pay to such Trustee any amounts
that may be owed to such Trustee pursuant to Section 10.4.
(h) Any successor to an Administrative Trustee shall be an officer,
director, employee or Affiliate of the Sponsor.
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SECTION 5.8 Vacancies among Trustees.
------------------------
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1 or Section 5.2, or if the number
of Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Administrative
Trustees or, if there are more than two, a majority of the Administrative
Trustees shall be conclusive evidence of the existence of such vacancy. The
vacancy shall be filled with a Trustee appointed in accordance with Section 5.7.
SECTION 5.9 Effect of Vacancies.
-------------------
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to dissolve, terminate or annul 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 5.7,
the Administrative Trustees in office, regardless of their number, shall have
all the powers granted to the Administrative Trustees and shall discharge all
the duties imposed upon the Administrative Trustees by this Declaration.
SECTION 5.1 Meetings.
--------
If there is more than one Administrative Trustee, meetings of the
Administrative Trustees shall be held from time to time upon the call of any
Administrative Trustee. Regular meetings of the Administrative Trustees may be
held at a time and place fixed by resolution of the Administrative Trustees,
provided, however, that meetings of the Administrative Trustees shall not be
- -------- -------
held in any jurisdiction which would subject the Trust to taxation under the
laws of such jurisdiction. Notice of any in-person meetings of the
Administrative Trustees shall be hand delivered or otherwise delivered in
writing (including by facsimile, with a hard copy by overnight courier) not less
than 24 hours before such meeting. Notice of any telephonic meetings of the
Administrative Trustees or any committee thereof shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 24 hours before a meeting. Notices shall
contain a brief statement of the time, place and anticipated purposes of the
meeting. The presence (whether in person or by telephone) of an Administrative
Trustee at a meeting shall constitute a waiver of notice of such meeting except
where an Administrative Trustee attends a meeting for the express purpose of
objecting to the transaction of any activity on the ground that the meeting has
not been lawfully called or convened. Unless provided otherwise in this
Declaration, any action of the Administrative Trustees may be taken at a meeting
by vote of a majority of the Administrative Trustees present (whether in person
or by telephone) and eligible to vote with respect to such matter, provided that
a Quorum is present, or without a meeting and without notice by the unanimous
written consent of the Administrative Trustees. In the event there is only one
Administrative Trustee, any and all action of such Administrative Trustee shall
be evidenced by a written consent of such Administrative Trustee.
33
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SECTION 5.1 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 3.6, including any registration statement or amendment
thereto filed with the Commission, or making any other governmental filing; and
(b) the Administrative Trustees shall have power to delegate from
time to time to such of their number or to officers of the Trust 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 5.1 Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any Person into which the Property Trustee or the Delaware Trustee that is
not a natural person, as the case may be, may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Property Trustee or the Delaware
Trustee, as the case may be, shall be a party, or any Person succeeding to all
or substantially all the corporate trust business of the Property Trustee or the
Delaware Trustee, as the case may be, shall be the successor of the Property
Trustee or the Delaware Trustee, as the case may be, 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.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
-------------
Holders shall receive Distributions in accordance with the applicable
terms of the relevant Holder's Securities. Distributions shall be made on the
Preferred Securities and the Common Securities in accordance with the
preferences set forth in their respective terms. If and to the extent that the
Debenture Issuer makes a payment of interest (including Compounded Interest and
Additional Sums, each as defined in the Indenture) or principal on the
Debentures held by the Property Trustee or any other payments with respect to
the Debentures held by the Property Trustee (the amount of any such payment
being a "Payment Amount"), the Property Trustee shall and is directed, to the
extent funds are available for that purpose, to make a distribution (a
"Distribution") of the Payment Amount to Holders.
34
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ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
---------------------------------------
(a) The Administrative Trustees shall on behalf of the Trust issue one
class of capital securities representing undivided beneficial interests in the
assets of the Trust having such terms as are set forth in Annex I (the
"Preferred Securities") and one class of common securities representing
undivided beneficial interests in the assets of the Trust having such terms as
are set forth in Annex I (the "Common Securities"). The Trust shall issue no
securities or other interests in the assets of the Trust other than the Trust
Securities.
(b) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(c) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable undivided beneficial interests in the assets of the Trust.
(d) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration and the terms of the Securities, the Preferred
Securities Guarantee, the Indenture and the Debentures.
SECTION 7.2 Execution and Authentication.
----------------------------
(a) The Securities shall be signed on behalf of the Trust by an
Administrative Trustee by manual or facsimile signature. In case any
Administrative Trustee of the Trust who shall have signed any of the Securities
shall cease to be such Administrative Trustee before the Securities so signed
shall be delivered by the Trust, such Securities nevertheless may be delivered
as though the person who signed such Securities had not ceased to be such
Administrative Trustee; and any Securities may be signed on behalf of the Trust
by such persons who, at the actual date of execution of such Security, shall be
the Administrative Trustees of the Trust, although at the date of the execution
and delivery of the Declaration any such person was not such an Administrative
Trustee.
(b) One Administrative Trustee shall sign the Preferred Securities for
the Trust by manual or facsimile signature. Unless otherwise determined by the
Administrative Trustees, such signature shall, in the case of Common Securities,
be a manual signature.
A Preferred Security shall not be valid until authenticated by the
manual signature of an authorized signatory of the Property Trustee. The
signature shall be conclusive evidence that the Preferred Security has been
authenticated under this Declaration.
Upon a written order of the Trust signed by one Administrative
Trustee, the Property Trustee shall authenticate the Preferred Securities for
original issue. The aggregate number
35
<PAGE>
of Preferred Securities outstanding at any time shall not exceed the number set
forth in the terms in Annex I hereto except as provided in Section 7.6.
The Property Trustee may appoint an authenticating agent acceptable to
the Trust to authenticate Preferred Securities. An authenticating agent may
authenticate Preferred Securities whenever the Property Trustee may do so. Each
reference in this Declaration to authentication by the Property Trustee includes
authentication by such agent. An authenticating agent has the same rights as
the Property Trustee to deal with the Sponsor or an Affiliate.
SECTION 7.3 Form and Dating.
---------------
The Preferred Securities and the Property Trustee's certificate of
authentication shall be substantially in the form of Exhibit A-1 and the Common
Securities shall be substantially in the form of Exhibit A-2, each of which is
hereby incorporated in and expressly made a part of this Declaration.
Certificates representing the Securities may be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Administrative Trustees, as evidenced by their execution thereof. The
Securities may have letters, CUSIP or other numbers, notations or other marks of
identification or designation and such legends or endorsements required by law,
stock exchange rule, agreements to which the Trust is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Trust). The Trust at the direction of the Sponsor shall furnish any such
legend to the Property Trustee in writing. Each Preferred Security shall be
dated the date of its authentication. The terms and provisions of the
Securities set forth in Annex I and the forms of Securities set forth in
Exhibits A-1 and A-2 are part of the terms of this Declaration and to the extent
applicable, the Property Trustee and the Sponsor, by their execution and
delivery of this Declaration, expressly agree to such terms and provisions and
to be bound thereby.
(a) Global Securities. The Preferred Securities shall be issued in
-----------------
the form of one or more permanent global Securities in definitive, fully
registered form without distribution coupons as set forth in Exhibit A-1 hereto
(a "Global Preferred Security"), which shall be deposited on behalf of the
purchasers of the Preferred Securities represented thereby with the Property
Trustee, as custodian for the Clearing Agency, and registered in the name of the
Clearing Agency or a nominee of the Clearing Agency, duly executed by the Trust
and authenticated by the Property Trustee as hereinafter provided. The number
of Preferred Securities represented by a Global Preferred Security may from time
to time be increased or decreased by adjustments made on the records of the
Property Trustee and the Clearing Agency or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 7.3(b) shall apply only to
---------------------
the Global Preferred Securities and such other Preferred Securities in global
form as may be authorized by the Trust to be deposited with or on behalf of the
Clearing Agency.
The Trust shall execute and the Property Trustee shall, in accordance
with this Section 7.3, authenticate and make available for delivery initially
one or more Global Preferred Securities that (i) shall be registered in the name
of Cede & Co. or other nominee of such Clearing Agency and (ii) shall be
delivered by the Property Trustee to such Clearing Agency or pursuant to
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<PAGE>
such Clearing Agency's written instructions or held by the Property Trustee as
custodian for the Clearing Agency.
Members of, or participants in, the Clearing Agency ("Participants")
shall have no rights under this Declaration with respect to any Global Preferred
Security held on their behalf by the Clearing Agency or by the Property Trustee
as the custodian of the Clearing Agency or under such Global Preferred Security,
and the Clearing Agency may be treated by the Trust, the Property Trustee and
any agent of the Trust or the Property Trustee as the absolute owner of such
Global Preferred Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Trust, the Property Trustee or any
agent of the Trust or the Property Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Clearing Agency or
impair, as between the Clearing Agency and its Participants, the operation of
customary practices of such Clearing Agency governing the exercise of the rights
of a holder of a beneficial interest in any Global Preferred Security.
(c) Definitive Preferred Securities. Except as provided in Section
-------------------------------
7.9 or 9.2(d), owners of beneficial interests in a Global Preferred Security
will not be entitled to receive physical delivery of certificated Preferred
Securities ("Definitive Preferred Securities").
(d) Authorized Denominations. The Preferred Securities are issuable
------------------------
only in denominations of and any integral multiple thereof.
SECTION 7.4 Registrar and Paying Agent.
--------------------------
The Trust shall maintain in the Borough of Manhattan, The City of New
York, (i) an office or agency where Preferred Securities may be presented for
registration of transfer ("Registrar") and (ii) an office or agency where
Preferred Securities may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Preferred Securities and of their
transfer. The Administrative Trustees on behalf of the Trust may appoint the
Registrar and the Paying Agent and may appoint one or more co-registrars and one
or more additional paying agents in such other locations as it shall determine.
The term "Registrar" includes any additional registrar and "Paying Agent"
includes any additional paying agent. The Administrative Trustees on behalf of
the Trust may change any Paying Agent, Registrar or co-registrar without prior
notice to any Holder. The Paying Agent or Registrar shall be permitted to
resign as Paying Agent or Registrar, as the case may be, upon 30 days' written
notice to the Administrative Trustees. The Administrative Trustees on behalf of
the Trust shall notify the Property Trustee of the name and address of any Agent
not a party to this Declaration. If the Administrative Trustees on behalf of
the Trust fails to appoint or maintain another entity as Registrar or Paying
Agent, the Property Trustee shall act as such. The Trust or any of its
Affiliates may act as Paying Agent or Registrar. The Trust shall act as Paying
Agent and Registrar for the Common Securities.
The Trust initially appoints the Property Trustee as Registrar and
Paying Agent for the Preferred Securities.
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SECTION 7.5 Paying Agent to Hold Money in Trust.
-----------------------------------
The Trust shall require each Paying Agent other than the Property
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Property Trustee all money held by the Paying Agent
for the payment of liquidation amounts or Distributions, and will notify the
Property Trustee if there are insufficient funds for such purpose. While any
such insufficiency continues, the Property Trustee may require a Paying Agent to
pay all money held by it to the Property Trustee. The Trust at any time may
require a Paying Agent to pay all money held by it to the Property Trustee and
to account for any money disbursed by it. Upon payment over to the Property
Trustee, the Paying Agent (if other than the Trust or an Affiliate of the Trust)
shall have no further liability for the monies previously held by it. If the
Trust or the Sponsor or an Affiliate of the Trust or the Sponsor acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent.
SECTION 7.6 Replacement Securities.
----------------------
If a Holder claims that a Security owned by it has been lost,
destroyed or wrongfully taken or if such Security is mutilated and is
surrendered to the Trust or in the case of the Preferred Securities to the
Property Trustee, the Trust shall issue and the Property Trustee shall, upon
written order of the Trust, authenticate a replacement Security if the Property
Trustee's and the Trust's requirements, as the case may be, are met. An
indemnity bond must be provided by the Holder which, in the judgment of the
Property Trustee, is sufficient to protect the Trustees, the Sponsor, the Trust
or any authenticating agent from any loss which any of them may suffer if a
Security is replaced. The Trust may charge such Holder for its expenses in
replacing a Security.
SECTION 7.7 Outstanding Preferred Securities.
--------------------------------
The Preferred Securities outstanding at any time are all the Preferred
Securities authenticated by the Property Trustee except for those canceled by
it, those delivered to it for cancellation and those described in this Section
as not outstanding.
If a Preferred Security is replaced, paid or purchased pursuant to
Section 7.6 hereof, it ceases to be outstanding unless the Property Trustee
receives proof satisfactory to it that the replaced, paid or purchased Preferred
Security is held by a protected purchaser.
If Preferred Securities are considered paid in full in accordance with
the terms of this Declaration, they cease to be outstanding and Distributions on
them shall cease to accumulate.
Except as provided in Section 7.8, a Preferred Security does not cease
to be outstanding because one of the Trust, the Sponsor or an Affiliate of the
Sponsor holds the Security.
SECTION 7.8 Preferred Securities in Treasury.
--------------------------------
In determining whether the Holders of the required amount of
Securities have concurred in any direction, waiver or consent, Preferred
Securities owned by the Trust, the Sponsor
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or an Affiliate of the Sponsor, as the case may be, shall be disregarded and
deemed not to be outstanding, except that for the purposes of determining
whether the Property Trustee shall be fully protected in relying on any such
direction, waiver or consent, only Securities which a Responsible Officer of the
Property Trustee actually knows are so owned shall be so disregarded.
SECTION 7.9 Definitive Securities.
---------------------
(a) A Global Preferred Security deposited with the Clearing Agency or
with the Property Trustee as custodian for the Clearing Agency pursuant to
Section 7.3 shall be transferred to the beneficial owners thereof in the form of
Definitive Preferred Securities only if such transfer complies with Section 9.2
and (i) the Clearing Agency notifies the Sponsor that it is unwilling or unable
to continue as Clearing Agency for such Global Preferred Security or if at any
time such Clearing Agency ceases to be a "clearing agency" registered under the
Exchange Act and a clearing agency is not appointed by the Sponsor within 90
days of such notice, (ii) a Default or an Event of Default has occurred and is
continuing or (iii) the Trust at its sole discretion elects to cause the
issuance of Definitive Preferred Securities.
(b) Any Global Preferred Security that is transferable to the
beneficial owners thereof in the form of Definitive Preferred Securities
pursuant to this Section 7.9 shall be surrendered by the Clearing Agency to the
Property Trustee located in the Borough of Manhattan, The City of New York, to
be so transferred, in whole or from time to time in part, without charge, and
the Property Trustee shall authenticate and make available for delivery, upon
such transfer of each portion of such Global Preferred Security, an equal
aggregate liquidation amount of Preferred Securities of authorized denominations
in the form of certificated Preferred Securities. Any portion of a Global
Preferred Security so transferred pursuant to this Section 7.9(b) shall be
registered in such names as the Clearing Agency shall direct.
(c) Subject to the provisions of Section 7.9(b), the Holder of a
Global Preferred Security may grant proxies and otherwise authorize any Person,
including Participants and Persons that may hold interests through Participants,
to take any action which such Holder is entitled to take under this Declaration
or the Securities.
(d) In the event of the occurrence of any of the events specified in
Section 7.9(a), the Trust will promptly make available to the Property Trustee a
reasonable supply of certificated Preferred Securities in fully registered form
without distribution coupons.
(e) Payments on the Preferred Securities that are not held by the
Depositary will be made by check mailed to the address of the holder certified
thereto at the address which appears on the register.
SECTION 7.10 Cancellation.
------------
The Trust at any time may deliver Preferred Securities to the Property
Trustee for cancellation. The Registrar and Paying Agent shall forward to the
Property Trustee any Preferred Securities surrendered to them for registration
of transfer, redemption, or payment. The Property
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Trustee shall promptly cancel all Preferred Securities, surrendered for
registration of transfer, redemption, payment, replacement or cancellation and
shall dispose of canceled Preferred Securities in accordance with its customary
procedures unless the Trust otherwise directs. The Trust may not issue new
Preferred Securities to replace Preferred Securities that it has paid or that
have been delivered to the Property Trustee for cancellation.
SECTION 7.11 CUSIP Numbers.
-------------
The Trust in issuing the Preferred Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Property Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders of Preferred
Securities; provided that any such notice may state that no representation is
--------
made as to the correctness of such numbers either as printed on the Preferred
Securities or as contained in any notice of a redemption and that reliance may
be placed only on the other identification numbers printed on the Preferred
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Sponsor will promptly notify the Property Trustee
of any change in the CUSIP numbers.
ARTICLE VII
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust.
------------------------------------
(a) The Trust shall automatically dissolve and be wound up in
accordance with applicable law:
(i) upon the occurrence of an Event of Default with respect to
the Sponsor as described in Section 5.01(d) or (e) of the Indenture;
(ii) upon the filing of a certificate of dissolution or
liquidation or its equivalent with respect to the Sponsor; or the
revocation of the Sponsor's charter and the expiration of 90 days after
the date of revocation without a reinstatement thereof;
(iii) based upon an election by the Sponsor to dissolve the
Trust, following the distribution of the Debentures from the Trust to the
Holders in exchange for all of the Securities, provided, that the Property
--------
Trustee has received written notice from the Sponsor directing the
Property Trustee to dissolve the Trust (which election is optional, and
except as otherwise expressly provided below, within the discretion of the
Sponsor), and provided, further, that such direction and such distribution
--------- -------
is conditioned on (a) the receipt by the Sponsor of any and all required
regulatory approvals, and (b) the Sponsor's receipt and delivery to the
Administrative Trustees of an opinion of independent tax counsel
experienced in such matters (who shall not be an employee of the Sponsor
or the Trust) to the effect that the Holders of the Preferred Securities
will not recognize any gain or loss for United States federal income tax
purposes as a result of the dissolution of the Trust and the distribution
of Debentures;
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(iv) upon the entry of a decree of judicial dissolution of
the Sponsor or the Trust by a court of competent jurisdiction;
(v) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have
been paid to the Holders in accordance with the terms of the Securities;
(vi) upon redemption or repayment of the Debentures or at
such time as no Debentures are outstanding; or;
(vii) the expiration of the term of the Trust provided in
Section 3.14.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a), but within 30 days of such event, notice of such
dissolution shall be given to the Holders and upon completion of the winding up
of Trust, the Administrative Trustees shall file a certificate of cancellation
with the Secretary of State of the State of Delaware and the Trust shall
terminate.
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
----------------------
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. To the fullest extent permitted by applicable law,
any transfer or purported transfer of any Security not made in accordance with
this Declaration shall be null and void.
(b) The Administrative Trustees shall provide for the registration of
Preferred Securities and of the transfer of Preferred Securities, which will be
effected without charge but only upon payment (with such indemnity as the
Administrative Trustees may require) in respect of any tax or other governmental
charges that may be imposed in relation to it. Upon surrender for registration
of transfer of any Preferred Securities, the Administrative Trustees shall cause
one or more new Preferred Securities to be issued in the name of the designated
transferee or transferees. Every Preferred Security surrendered for registration
of transfer shall be accompanied by a written instrument of transfer in form
satisfactory to the Administrative Trustees and the Registrar or co-registrar,
duly executed by the Holder or such Holder's attorney duly authorized in
writing. Each Preferred Security surrendered for registration of transfer shall
be canceled by the Property Trustee. A transferee of a Preferred Security shall
be entitled to the rights and subject to the obligations of a Holder hereunder
upon the receipt by such transferee of a Preferred Security. By acceptance of a
Preferred Security, each transferee shall be bound by this Declaration.
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(c) The Holder of the Common Securities may not transfer the Common
Securities except (a) in connection with transactions permitted under Section
10.01 of the Indenture, or (b) to the Sponsor or an Affiliate thereof in
compliance with applicable law (including the Securities Act and applicable
state securities and blue sky laws); provided that, any such transfer is subject
-------- ----
to the condition precedent that the transferor obtain the written opinion of
qualified independent counsel experienced in such matters that such transfer
would not cause more than an insubstantial risk that:
(i) the Trust would not be classified for United States federal
income tax purposes as a grantor trust and each Holder of Securities would
not be treated as owning an undivided beneficial interest in the
Debentures; and
(ii) the Trustee would be an Investment Company or the
transferee would become an Investment Company.
To the fullest extent permitted by law, any attempted transfer of the Common
Securities other than as set forth in the immediately preceding sentence shall
be void. For so long as the Trust Securities remain outstanding, the Sponsor
will covenant (i) to directly or indirectly maintain 100% direct or indirect
ownership of the Common Securities of the Trust; provided, however, that any
-------- -------
permitted successor of the Sponsor under the Indenture may succeed to the
Sponsor's ownership of such Common Securities, (ii) to use its reasonable
efforts to cause the Trust (a) to remain a business trust, except in connection
with the distribution of Debentures to the Holders of Trust Securities in
liquidation of the Trust, the redemption of all of the Trust Securities, or
certain mergers, consolidations or amalgamations, each as permitted by this
Declaration, and (b) to otherwise continue to be classified as a grantor trust
for United States federal income tax purposes and (iii) to use its reasonable
efforts to cause each holder of Trust Securities to be treated as owning an
undivided beneficial interest in the Debentures.
SECTION 9.2 Transfer Procedures and Restrictions.
------------------------------------
(a) Transfer and Exchange of Definitive Preferred Securities. When
--------------------------------------------------------
Definitive Preferred Securities are presented to the Registrar or co-registrar
(x) to register the transfer of such Definitive Preferred
Securities; or
(y) to exchange such Definitive Preferred Securities which
became mutilated, destroyed, defaced, stolen or lost, for an equal number
of Definitive Preferred Securities,
the Registrar or co-registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Preferred Securities surrendered for
- -------- -------
registration of transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form reasonably satisfactory to the
Administrative Trustees and the Registrar or co-registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing;
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(b) Transfer and Exchange of Global Preferred Securities. The
----------------------------------------------------
transfer and exchange of Global Preferred Securities or beneficial interests
therein shall be effected through the Clearing Agency, in accordance with this
Declaration (including applicable restrictions on transfer set forth herein, if
any) and the procedures of the Clearing Agency therefor.
(c) Restrictions on Transfer and Exchange of Global Preferred
---------------------------------------------------------
Securities. Notwithstanding any other provisions of this Declaration (other than
- ----------
the provisions set forth in this Section 9.2 and subsection (a) of Section 7.9),
a Global Preferred Security may not be transferred as a whole except by the
Clearing Agency to a nominee of the Clearing Agency or another nominee of the
Clearing Agency or by the Clearing Agency or any such nominee to a successor
Clearing Agency or a nominee of such successor Clearing Agency.
(d) Authentication of Definitive Preferred Securities. If at any
-------------------------------------------------
time:
(i) the Clearing Agency notifies the Sponsor that it is
unwilling or unable to continue as Clearing Agency for such Global
Preferred Security or if at any time such Clearing Agency ceases to be a
"clearing agency" registered under the Exchange Act and a clearing agency
is not appointed by the Sponsor within 90 days of such notice;
(ii) there occurs a Default or an Event of Default which is
continuing, or
(iii) the Trust (by the Administrative Trustees), in its sole
discretion, notifies the Property Trustee in writing that it elects to
cause the issuance of Definitive Preferred Securities under this
Declaration,
then an Administrative Trustee on behalf of the Trust will execute, and the
Property Trustee, upon receipt of a written order of the Trust signed by one
Administrative Trustee requesting the authentication and delivery of Definitive
Preferred Securities to the Persons designated by the Trust, will authenticate
and make available for delivery Definitive Preferred Securities, equal in number
to the number of Preferred Securities represented by the Global Preferred
Securities, in exchange for such Global Preferred Securities.
(e) Cancellation or Adjustment of Global Preferred Security. At such
-------------------------------------------------------
time as all beneficial interests in a Global Preferred Security have either been
exchanged for Definitive Preferred Securities to the extent permitted by this
Declaration or redeemed, repurchased or canceled in accordance with the terms of
this Declaration, such Global Preferred Security shall be canceled by the
Property Trustee. At any time prior to such cancellation, if any beneficial
interest in a Global Preferred Security is exchanged for Definitive Preferred
Securities, Preferred Securities represented by such Global Preferred Security
shall be reduced and an adjustment shall be made on the books and records of the
Clearing Agency and the Registrar, to reflect such reduction.
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(f) Obligations with Respect to Transfers of Preferred Securities.
-------------------------------------------------------------
(i) To permit registrations of transfers, an Administrative
Trustee on behalf of the Trust shall execute and the Property Trustee
shall authenticate Definitive Preferred Securities and Global Preferred
Securities at the Registrar's or co-registrar's request in accordance with
the terms of this Declaration.
(ii) Registrations of transfers will be effected without
charge, but only upon payment (with such indemnity as the Trust or the
Sponsor may require) in respect of any tax or other governmental charge
that may be imposed in relation to it.
(iii) The Registrar or co-registrar shall not be required to
register the transfer of (a) Preferred Securities during a period
beginning at the opening of business 15 days before the day of mailing of
a notice of redemption or any notice of selection of Preferred Securities
for redemption and ending at the close of business on the day of such
mailing; or (b) any Preferred Security so selected for redemption in whole
or in part, except the unredeemed portion of any Preferred Security being
redeemed in part.
(iv) Prior to the due presentation for registration of
transfer of any Preferred Security, the Trust, the Property Trustee, the
Paying Agent, the Registrar or any co-registrar may deem and treat the
Person in whose name a Preferred Security is registered as the absolute
owner of such Preferred Security for the purpose of receiving
Distributions on such Preferred Security (subject to Section 2(c) of Annex
I) and for all other purposes whatsoever, and none of the Trust, the
Property Trustee, the Paying Agent, the Registrar or any co-registrar
shall be affected by notice to the contrary.
(v) All Preferred Securities issued upon any registration of
transfer pursuant to the terms of this Declaration shall evidence the same
security and shall be entitled to the same benefits under this Declaration
as the Preferred Securities surrendered upon such registration of
transfer.
(g) No Obligation of the Property Trustee.
-------------------------------------
(i) The Property Trustee shall have no responsibility or
obligation to any beneficial owner of a Global Preferred Security, a
Clearing Agency Participant in the Clearing Agency or other Person with
respect to the accuracy of the records of the Clearing Agency or its
nominee or of any Clearing Agency Participant thereof, with respect to any
ownership interest in the Preferred Securities or with respect to the
delivery to any Clearing Agency Participant, beneficial owner or other
Person (other than the Clearing Agency) of any notice (including any
notice of redemption) or the payment of any amount, under or with respect
to such Preferred Securities. All notices and communications to be given
to the Holders and all payments to be made to Holders under the Preferred
Securities shall be given or made only to or upon the order of the
registered Holders (which shall be the Clearing Agency or its nominee in
the case of a Global Preferred Security). The rights of beneficial owners
in any Global Preferred Security shall be exercised only through the
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Clearing Agency subject to the applicable rules and procedures of the
Clearing Agency. The Property Trustee may conclusively rely and shall be
fully protected in relying upon information furnished by the Clearing
Agency or any agent thereof with respect to its Clearing Agency
Participants and any beneficial owners.
(ii) The Property Trustee and the Registrar shall have no
obligation or duty to monitor, determine or inquire as to compliance with
any restrictions on transfer imposed under this Declaration or under
applicable law with respect to any transfer of any interest in any
Preferred Security (including any transfers between or among Clearing
Agency Participants or beneficial owners in any Global Preferred Security)
other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if
and when expressly required by, the terms of this Declaration, and to
examine the same to determine substantial compliance as to form with the
express requirements hereof.
SECTION 9.3 Deemed Security Holders.
-----------------------
The Trustees may treat the Person in whose name any Security shall be
registered on the books and records of the Trust as the sole owner of such
Security for purposes of receiving Distributions and for all other purposes
whatsoever (subject to the definition of "Holder" contained herein) and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Security on the part of any Person, whether or not the Trust
shall have actual or other notice thereof.
SECTION 9.4 Book Entry Interests.
--------------------
Global Preferred Securities shall initially be registered on the books
and records of the Trust in the name of Cede & Co., the nominee of the Clearing
Agency, and no Preferred Security Beneficial Owner will receive a definitive
Preferred Security Certificate representing such Preferred Security Beneficial
Owner's interests in such Global Preferred Securities, except as provided in
Section 7.9 and Section 9.2. Unless and until definitive, fully registered
Preferred Securities certificates have been issued to the Preferred Security
Beneficial Owners pursuant to Section 7.9 or Section 9.2:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the
payment of Distributions on the Global Preferred Securities and receiving
approvals, votes or consents hereunder) as the Holder of the Preferred
Securities and the sole holder of the Global Certificates and shall have
no obligation to the Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4 conflict
with any other provisions of this Declaration, the provisions of this
Section 9.4 shall control; and
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(d) the rights of the Preferred Security Beneficial Owners shall
be exercised only through the Clearing Agency and shall be limited to
those established by law and agreements between such Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants and the Clearing Agency shall receive and transmit payments
of Distributions on the Global Certificates to such Clearing Agency
Participants. DTC will make book entry transfers among the Clearing Agency
Participants.
SECTION 9.5 Notices to Clearing Agency.
--------------------------
Whenever a notice or other communication to the Preferred
Security Holders is required under this Declaration, unless and until
definitive, fully registered Preferred Securities certificates have been issued
to the Preferred Security Beneficial Owners pursuant to Section 7.9 or Section
9.2, the Trustees shall give all such notices and communications specified
herein to be given to the Holders of Global Preferred Securities to the Clearing
Agency, and shall have no notice obligations to the Preferred Security
Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
----------------------------------------
If any Clearing Agency ceases to continue its services as
securities depositary with respect to the Preferred Securities, the
Administrative Trustees may, in their sole discretion, appoint a successor
Clearing Agency with respect to such Preferred Securities.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
---------
(a) Except as expressly set forth in this Declaration, the
Securities Guarantees and the terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders which shall
be made solely from assets of the Trust; and
(ii) required to pay to the Trust or to any Holder any
deficit upon dissolution or termination of the Trust or otherwise.
(b) The Debenture Issuer shall be liable for all of the debts and
obligations of the Trust (other than in respect of the payment of principal and
interest on the Securities) to the extent not satisfied out of the Trust's
assets.
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(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders 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.
SECTION 10.2 Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and, if selected by such Indemnified Person,
has been selected by such Indemnified Person with reasonable care on behalf of
the Trust, including information, opinions, reports or statements as to the
value and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders might properly be paid.
SECTION 10.3 Fiduciary Duty.
--------------
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Property Trustee under the Trust Indenture
Act), are agreed by the parties hereto to replace such other duties and
liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
any Covered Persons and Indemnified Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person shall
act in a manner that is, or provides terms that are, fair and reasonable
to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such
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conflict, agreement, transaction or situation and the benefits and burdens
relating to such interests, any customary or accepted industry practices, and
any applicable generally accepted accounting practices or principles. In the
absence of bad faith by the Indemnified Person, the resolution, action or term
so made, taken or provided by the Indemnified Person shall not constitute a
breach of this Declaration or any other agreement contemplated herein or of any
duty or obligation of the Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no duty
or obligation to give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration.
SECTION 10.4 Indemnification.
---------------
(a) (i) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right
of the Trust) by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees and
expenses), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Trust, and,
with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good faith
and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Trust, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful.
(ii) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Company
Indemnified Person against expenses (including attorneys' fees and
expenses) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith and
in a manner he reasonably believed to be in or not
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opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or matter as
to which such Company Indemnified Person shall have been adjudged to be
liable to the Trust unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such Person is
fairly and reasonably entitled to indemnity for such expenses which such
Court of Chancery or such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of
liability) in defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 10.4(a), or in defense of any
claim, issue or matter therein, he shall be indemnified, to the full
extent permitted by law, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 10.4(a) (unless ordered by a court) shall be made by the Debenture
Issuer only as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1) by
the Administrative Trustees by a majority vote of a Quorum consisting of
such Administrative Trustees who were not parties to such action, suit or
proceeding, (2) if such a Quorum is not obtainable, or, even if
obtainable, if a Quorum of disinterested Administrative Trustees so
directs, by independent legal counsel in a written opinion, or (3) by the
Common Security Holder of the Trust.
(v) Expenses (including attorneys' fees and expenses)
incurred by a Company Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 10.4(a) shall be paid by the
Debenture Issuer in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such
Company Indemnified Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Debenture
Issuer as authorized in this Section 10.4(a). Notwithstanding the
foregoing, no advance shall be made by the Debenture Issuer if a
determination is reasonably and promptly made (i) by the Administrative
Trustees by a majority vote of a Quorum of disinterested Administrative
Trustees, (ii) if such a Quorum is not obtainable, or, even if obtainable,
if a Quorum of disinterested Administrative Trustees so directs, by
independent legal counsel in a written opinion or (iii) the Common
Security Holder of the Trust, that, based upon the facts known to the
Administrative Trustees, counsel or the Common Security Holder at the time
such determination is made, such Company Indemnified Person acted in bad
faith or in a manner that such person did not believe to be in or not
opposed to the best interests of the Trust, or, with respect to any
criminal proceeding, that such Company Indemnified Person believed or had
reasonable cause to believe his conduct was unlawful. In no event shall
any advance be made in
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instances where the Administrative Trustees, independent legal counsel or
Common Security Holder reasonably determine that such person deliberately
breached his duty to the Trust or its Common or Preferred Security
Holders.
(vi) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this Section 10.4(a)
shall not be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of stockholders or disinterested directors of the
Debenture Issuer or Preferred Security Holders of the Trust or otherwise,
both as to action in his official capacity and as to action in another
capacity while holding such office. All rights to indemnification under
this Section 10.4(a) shall be deemed to be provided by a contract between
the Debenture Issuer and each Company Indemnified Person who serves in
such capacity at any time while this Section 10.4(a) is in effect. Any
repeal or modification of this Section 10.4(a) shall not affect any rights
or obligations then existing.
(vii) The Debenture Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is or was a Company
Indemnified Person against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such, whether
or not the Debenture Issuer would have the power to indemnify him against
such liability under the provisions of this Section 10.4(a).
(viii) For purposes of this Section 10.4(a), references to "the
Trust" shall include, in addition to the resulting or surviving entity,
any constituent entity (including any constituent of a constituent)
absorbed in a consolidation or merger, so that any person who is or was a
director, trustee, officer or employee of such constituent entity, or is
or was serving at the request of such constituent entity as a director,
trustee, officer, employee or agent of another entity, shall stand in the
same position under the provisions of this Section 10.4(a) with respect to
the resulting or surviving entity as he would have with respect to such
constituent entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Section 10.4(a) shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a Company Indemni fied Person and shall inure to the benefit
of the heirs, executors and administrators of such a person.
(b) To the fullest extent permitted by law, ti he Debenture Issuer
agrees to indemnify the (i) Property Trustee, (ii) the Delaware Trustee, (iii)
any Affiliate of the Property Trustee or the Delaware Trustee, and (iv) any
officers, directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents of the Property Trustee or the
Delaware Trustee (each of the Persons in (i) through (iv) being referred to as a
"Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified
Person harmless against, any and all loss, liability, damage, claim or expense
including taxes (other than taxes based on the income of such Fiduciary
Indemnified Person) incurred without negligence or bad faith on its part,
arising out of or in
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connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 10.4(b)
shall survive the resignation or removal of the Property Trustee or the Delaware
Trustee, the dissolution of the Trust and the satisfaction and discharge of this
Declaration.
SECTION 10. Outside Businesses.
------------------
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee (subject to Section 5.3(c)) may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the business of the Trust, and the
Trust and the Holders shall have no rights by virtue of this Declaration in and
to such independent ventures or the income or profits derived therefrom, and the
pursuit of any such venture, even if competitive with the business of the Trust,
shall not be deemed wrongful or improper. No Covered Person, the Sponsor, the
Delaware Trustee, or the Property Trustee shall be obligated to present any
particular investment or other opportunity to the Trust even if such opportunity
is of a character that, if presented to the Trust, could be taken by the Trust,
and any Covered Person, the Sponsor, the Delaware Trustee and the Property
Trustee shall have the right to take for its own account (individually or as a
partner or fiduciary) or to recommend to others any such particular investment
or other opportunity. Any Covered Person, the Delaware Trustee and the Property
Trustee may engage or be interested in any financial or other transaction with
the Sponsor or any Affiliate of the Sponsor, or may act as depositary for,
trustee or agent for, or act on any committee or body of holders of, securities
or other obligations of the Sponsor or its Affiliates.
SECTION 10. Compensation; Fees.
------------------
The Debenture Issuer agrees:
(a) to pay to the Trustees from time to time such compensation for
all services rendered by them hereunder as the parties shall agree in writing
from time to time (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, to 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 Declaration (including the reasonable compensa tion and the expenses and
disbursements of their respective agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith.
The provisions of this Section 10.6 shall survive the dissolution
of the Trust and the termination of this Declaration and the removal or
resignation of any Trustee.
No Trustee may claim any lien or charge on any property of the
Trust as a result of any amount due pursuant to this Section 10.6.
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ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
-----------
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
--------------------------
(a) At all times during the existence of the Trust, the
Administrative Trustees shall keep, or cause to be kept, full books of account,
records and supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The books of account and the records of the
Trust shall be examined by and reported upon as of the end of each Fiscal Year
of the Trust by a firm of independent certified public accountants selected by
the Administrative Trustees.
(b) The Administrative Trustees shall cause to be duly prepared
and delivered to each of the Holders, any annual United States federal income
tax information statement, required by the Code, containing such information
with regard to the Securities held by each Holder as is required by the Code and
the Treasury Regulations. Notwithstanding any right under the Code to deliver
any such statement at a later date, the Administrative Trustees shall endeavor
to deliver all such information statements within 30 days after the end of each
Fiscal Year of the Trust.
(c) The Administrative Trustees shall cause to be duly prepared
and filed with the appropriate taxing authority, an annual United States federal
income tax return, on a Form 1041 or such other form required by United States
federal income tax law, and any other annual income tax returns required to be
filed by the Administrative Trustees on behalf of the Trust with any state or
local taxing authority.
SECTION 11.3 Banking.
-------
The Trust may maintain one or more bank accounts in the name and
for the sole benefit of the Trust; provided, however, that all payments of funds
-------- -------
in respect of the Debentures held by the Property Trustee shall be made directly
to the Property Trustee Account and no other funds of the Trust shall be
deposited in the Property Trustee Account. The sole signatories for such
accounts shall be designated by the Administrative Trustees; provided, however,
-------- -------
that the Property Trustee shall designate the signatories for the Property
Trustee Account.
SECTION 11.4 Withholding.
-----------
The Trust and the Administrative Trustees shall comply with all
withholding requirements under United States federal, state and local law. The
Trust shall request, and the
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Holders shall provide to the Trust, such forms or certificates as are necessary
to establish an exemption from withholding with respect to each Holder, and any
representations and forms as shall reasonably be requested by the Trust to
assist it in determining the extent of, and in fulfilling, its withholding
obligations. The Administrative Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to Distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
Distribution in the amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12. Amendments.
----------
(a) Except as otherwise provided in this Declaration (including
Section 7 of Annex I hereto) or by any applicable terms of the Securities, this
Declaration may only be amended by a written instrument approved and executed
by:
(i) the Administrative Trustees (or if there are more than
two Administrative Trustees a majority of the Administrative Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property Trustee;
and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware Trustee.
(b) No amendment shall be made, and any such purported amendment
shall be void and ineffective:
(i) unless the Property Trustee shall have first received:
(A) an Officers' Certificate from each of the Trust and
the Sponsor that such amendment is permitted by, and conforms to,
the terms of this Declaration (including the terms of the
Securities) and that the interests of any Holder of Securities will
not be materially affected by such amendment; and
(B) an Opinion of Counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the terms of
the Securities) and that all
53
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conditions precedent, if any, in this Declaration to the execution
and delivery of such amendment have been satisfied,
provided, however, that the Property Trustee shall not be required to sign
-------- -------
any such amendment which affects the rights, powers, duties, obligations
or immunities of the Property Trustee; and
(ii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be classified
for purposes of United States federal income taxation as a grantor
trust;
(B) reduce or otherwise adversely affect the powers of
the Property Trustee in contravention of the Trust Indenture Act;
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
or
(D) cause a Tax Event.
(c) At such time after the Trust has issued any Securities that
remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder may be effected only with such
additional requirements as may be set forth in the terms of such Securities;
(d) Section 9.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders;
(e) Article Four shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities;
(f) The rights of the Holders of the Common Securities under Article
Five to increase or decrease the number of, and appoint and remove Trustees
shall not be amended without the consent of the Holders of a Majority in
liquidation amount of the Common Securities; and
(g) Notwithstanding Section 12.1(c), this Declaration may be amended
by the Sponsor, the Property Trustee and the Administrative Trustees without the
consent of the Holders to:
(i) cure any ambiguity, correct or supplement any provision in this
Declaration that may be inconsistent with any other provision of this
Declaration or to make any other provisions with respect to matters or
questions arising under this Declaration which shall not be inconsistent
with the other provisions of the Declaration; and
54
<PAGE>
(ii) to modify, eliminate or add to any provisions of the
Declaration 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 Securities are outstanding or to
ensure that the Trust will not be required to register as an Investment
Company under the Investment Company Act;
provided, however, that in each case such action shall not adversely affect the
- -------- -------
interests of the Holders, and any such amendments of this Declaration shall
become effective when notice thereof is given to the Holders.
SECTION 12. Meetings of the Holders; Action by Written Consent.
--------------------------------------------------
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Administrative Trustees (or as provided in the terms
of the Securities) to consider and act on any matter on which Holders of such
class of Securities are entitled to act under the terms of this Declaration, the
terms of the Securities or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading. The Administrative
Trustees shall call a meeting of the Holders of such class if directed to do so
by the Holders of at least 10% in liquidation amount of such class of
Securities. Such direction shall be given by delivering to the Administrative
Trustees one or more notices in writing stating that the signing Holders wish to
call a meeting and indicating the general or specific purpose for which the
meeting is to be called. Any Holders calling a meeting shall specify in writing
the Securities held by the Holders exercising the right to call a meeting and
only those Securities specified shall be counted for purposes of determining
whether the required percentage set forth in the second sentence of this
paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders:
(i) notice of any such meeting shall be given to all the
Holders having a right to vote there at least seven days and not more than
60 days before the date of such meeting. Whenever a vote, consent or
approval of the Holders is permitted or required under this Declaration or
the rules of any stock exchange on which the Preferred Securities are
listed or admitted for trading, such vote, consent or approval may be
given at a meeting of the Holders. Any action that may be taken at a
meeting of the Holders may be taken without a meeting and without prior
notice if a consent in writing setting forth the action so taken is signed
by the Holders owning not less than the minimum amount of Securities in
liquidation amount that would be necessary to authorize or take such
action at a meeting at which all Holders having a right to vote thereon
were present and voting. Prompt notice of the taking of any action without
a meeting shall be given to Holders entitled to vote who have not
consented to such action in writing. The Administrative Trustees may
specify that any written ballot submitted to the Holder of Securities for
the purpose of taking any action without a meeting shall be returned to
the Trust within the time specified by the Administrative Trustees;
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(ii) each Holder may authorize any Person to act for it by proxy
on all matters in which a Holder is entitled to participate, including
waiving notice of any meeting, or voting or participating at a meeting.
No proxy shall be valid after the expiration of 11 months from the date
thereof unless otherwise provided in the proxy. Every proxy shall be
revocable at the pleasure of the Holder executing it. Except as otherwise
provided herein, all matters relating to the giving, voting or validity of
proxies shall be governed by the General Corporation Law of the State of
Delaware relating to proxies, and judicial interpretations thereunder, as
if the Trust were a Delaware corporation and the Holders were stockholders
of a Delaware corporation;
(iii) each meeting of the Holders shall be conducted by the
Administra tive Trustees or by such other Person that the Administrative
Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the terms
of the Securities, the Trust Indenture Act or the listing rules of any
stock exchange on which the Preferred Securities are then listed or
trading, otherwise provides, the Administrative Trustees, in their sole
discretion, shall establish all other provisions relating to meetings of
Holders, including notice of the time, place or purpose of any meeting at
which any matter is to be voted on by any Holders, waiver of any such
notice, action by consent without a meeting and without prior notice, the
establishment of a record date, quorum requirements, voting in person or
by proxy or any other matter with respect to the exercise of any such
right to vote, provided, however, the meetings of Holders shall not be
-------- -------
held in any jurisdiction which would subject the Trust to taxation under
the laws of such jurisdiction.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee.
--------------------------------------------------
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust, to the Holders of Securities and to the Sponsor at the
date of this Declaration, and each Successor Property Trustee represents and
warrants to the Trust, to the Holders of Securities, and to the Sponsor at the
time of the Successor Property Trustee's acceptance of its appointment as
Property Trustee that:
(a) The Property Trustee is a New York banking corporation, a
national banking association or a bank or trust company duly organized, validly
existing and in good standing under the laws of any State of the United States
or the District of Columbia, in any case with trust powers and authority to
execute and deliver, and to carry out and perform its obligations under the
terms of, this Declaration;
(b) the Property Trustee satisfies the requirements set forth in
Section 5.3(a);
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(c) The execution, delivery and performance by the Property
Trustee of this Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee. This Declaration has been duly
executed and delivered by the Property Trustee and constitutes a legal, valid
and binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(d) The execution, delivery and performance of this Declaration
by the Property Trustee does not conflict with or constitute a breach of the
charter or by-laws of the Property Trustee; and
(e) No consent, approval or authorization of, or registration
with or notice to, any state or federal banking authority is required for the
execution, delivery or performance by the Property Trustee of this Declaration.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
--------------------------------------------------
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust, to the Holders of Securities and to the Sponsor at the
date of this Declaration, and each Successor Delaware Trustee represents and
warrants to the Trust, to the Holders of Securities, and to the Sponsor at the
time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a) The Delaware Trustee satisfies the requirements set forth in
Section 5.2 and, if it is not a natural person, is duly organized, validly
existing and in good standing under the laws of the State of Delaware or the
United States, with trust power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, this Declaration;
(b) The execution, delivery and performance by the Delaware
Trustee of this Declaration has been duly authorized by all necessary corporate
action on the part of the Delaware Trustee. This Declaration has been duly
executed and delivered by the Delaware Trustee and constitutes a legal, valid
and binding obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(c) No consent, approval or authorization of, or registration
with or notice to, any federal banking authority is required for the execution,
delivery or performance by the Delaware Trustee of this Declaration; and
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(d) The Delaware Trustee is 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.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
-------
All notices provided for in this Declaration shall be in writing,
duly signed by the party giving such notice, and shall be delivered, telecopied
or mailed by first class mail, overnight courier service or confirmed telecopy,
as follows:
(a) if given to the Trust, in care of the Administrative Trustees
at the mailing address set forth below (or such other address as the Trust may
give notice of to the Property Trustee, the Delaware Trustee and the Holders):
East West Bancorp Capital Trust I
c/o East West Bancorp, Inc.
415 Huntington Drive
San Marino, California 91108
Attention: Julia Gouw
Administrative Trustee
Telecopy: (626) 799-2799
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as Delaware Trustee may give notice of to the
Administrative Trustees and the Property Trustee):
__________________
__________________
_________
___________________
Attention: Corporate Trust Department
Telecopy: __________
(c) if given to the Property Trustee, at the Property Trustee's
mailing address set forth below (or such other address as the Property Trustee
may give notice of to the Administrative Trustees, the Delaware Trustee and
the Holders):
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_______________
_______________
__________
_______________
Attention: Corporate Trust Trustee Administration
Telecopy: ___________
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice to the Property Trustee and the
Trust):
East West Bancorp, Inc.
415 Huntington Drive
San Marino, California 91108
Attention: Julia Gouw
Chief Financial Officer
Telecopy: (626) 799-2799
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices 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 document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.2 Governing Law.
-------------
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
SECTION 14.3 Intention of the Parties.
------------------------
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor trust. The
provisions of this Declaration shall be interpreted to further this intention of
the parties.
SECTION 14.4 Headings.
--------
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
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SECTION 14.5 Successors and Assigns
----------------------
Whenever in this Declaration any of the parties hereto is named
or referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 14.6 Partial Enforceability.
----------------------
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 14.7 Counterparts.
------------
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
EAST WEST BANCORP CAPITAL TRUST I
_______________________________________________
Dominic Ng, as Administrative Trustee
_______________________________________________
Julia Gouw, as Administrative Trustee
_______________________________________________
Douglas Krause, as Administrative Trustee
________________________________,
as Delaware Trustee
By:____________________________________________
Name:
Title:
_________________________________,
as Property Trustee
By:____________________________________________
Name:
Title:
EAST WEST BANCORP, INC.
as Sponsor and Debenture Issuer
By:____________________________________________
Julia Gouw
Chief Financial Officer
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ANNEX I
TERMS OF
_____% CUMULATIVE TRUST PREFERRED SECURITIES
____% COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of _________ __, 2000 (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Securities are set out below (each
capitalized term used but not defined herein has the meaning set forth in the
Declaration or, if not defined in such Declaration, as defined in the Prospectus
referred to below in Section 2(c) of this Annex I):
1. Designation and Number.
----------------------
(a) Preferred Securities. ____________ ___% Cumulative Trust
--------------------
Preferred Securities of the Trust with an aggregate liquidation amount with
respect to the assets of the Trust of ____________________ dollars
($___________) and each with a liquidation amount with respect to the assets of
the Trust of per security are hereby designated for the purposes of
identification only as Preferred Securities. The certificates evidencing the
Preferred Securities shall be substantially in the form of Exhibit A-1 to the
Declaration, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice or to conform to the rules
of any exchange or quotation system on or in which the Preferred Securities are
listed, traded or quoted.
(b) Common Securities. ________ Common Securities of the Trust with
-----------------
an aggregate liquidation amount with respect to the assets of the Trust of
_____________________ dollars ($____________), and a liquidation amount with
respect to the assets of the Trust of per security (if the underwriters
exercise their Option are hereby designated for the purposes of identification
only as Common Securities. The certificates evidencing the Common Securities
shall be substantially in the form of Exhibit A-2 to the Declaration, with such
changes and additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice.
2. Distributions.
-------------
(a) Distributions payable on each Security will be fixed at a rate
per annum of ____% (the "Coupon Rate") of the liquidation amount of per Security
(the "Liquidation Amount"), such rate being the rate of interest payable on the
Debentures to be held by the Property Trustee. Distributions in arrears for more
than one quarterly period will bear additional distributions thereon compounded
quarterly at the Coupon Rate (to the extent permitted by applicable law). A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Property Trustee and to the extent the Property
Trustee has funds on hand legally available therefor.
(b) Distributions on the Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or
duly provided for or, if no Distributions have been paid or duly provided for,
from __________ __, 2000, and will be payable quarterly in arrears on the last
day of March, June, September and December of each year,
I-1
<PAGE>
commencing on ________ __, ____ (each, a "Distribution Date"), except as
otherwise described below. Distributions will be computed on the basis of a 360-
day year consisting of twelve 30-day months and for any period less than a full
calendar quarter on the basis of the actual number of days elapsed in such 90-
day quarter based on 30-day months. As long as no Event of Default has occurred
and is continuing under the Indenture, the Debenture Issuer has the right under
the Indenture to defer payments of interest on the Debentures by extending the
interest payment period at any time and from time to time for a period not
exceeding 20 consecutive quarterly periods, including the first such quarterly
period during such period (each an "Extension Period"), during which Extension
Period no interest shall be due and payable on the Debentures, provided that no
-------- ----
Extension Period shall end on a date other than an Interest Payment Date for the
Debentures or extend beyond the Maturity Date of the Debentures. As a
consequence of such deferral, Distributions will also be deferred. Despite such
deferral, Distributions will continue to accrue with interest thereon (to the
extent permitted by applicable law) at the Coupon Rate compounded quarterly
during any such Extension Period. Prior to the termination of any such Extension
Period, the Debenture Issuer may further defer payments of interest by further
extending such Extension Period; provided that such further deferment shall only
-------- ----
be permitted to the extent that such Extension Period, together with all
extensions occurring both before and after such deferment, does not exceed 20
consecutive quarterly periods, including the first quarterly period during such
Extension Period, or extend beyond the Maturity Date of the Debentures. Payments
of deferred Distributions will be payable to Holders of record as they appear on
the books and records of the Trust on the record date for Distributions due at
the end of such Extension Period. Upon the termination of any Extension Period
and the payment of all amounts then due, the Debenture Issuer may commence a new
Extension Period, subject to the above requirements.
(c) Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust which for so long
as the Securities remain in book entry form, will be one Business Day prior to
the relevant Distribution Date and, in the event the Securities are not in book
entry form, will be the close of business on the 15th day of the month in which
the relevant Distribution Date occurs. Subject to any applicable laws and
regulations and the provisions of the Declaration, each such payment in respect
of the Global Preferred Securities will be made as described under the heading
"Description of Trust Preferred Securities -- Global Trust Preferred Securities"
and "Book-Entry Issuance" in the Prospectus dated _________ __, 2000, of the
Debenture Issuer and the Trust relating to the Securities and the Debentures.
Payments in respect of Preferred Securities held in certificated form will be
made by check mailed or by wire to the Holder entitled thereto. The relevant
record dates for the Common Securities shall be the same as the record dates for
the Preferred Securities. Distributions payable on any Securities that are not
punctually paid on any Distribution Date, as a result of the Debenture Issuer
having failed to make a payment under the Debentures, will cease to be payable
to the Holder on the relevant record date, and such defaulted Distribution will
instead be payable to the Person in whose name such Securities are registered on
the special record date or other specified date determined in accordance with
the Indenture. If any date on which Distributions are payable on the Securities
is not a Business Day, then payment of the Distribution payable on such date
will be made on the next succeeding Business Day (and without any interest or
other payment in respect of any such delay), except that, if such next
succeeding Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day with the same force and
effect as if made on such date.
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(d) In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders.
3. Liquidation Distribution Upon Dissolution.
-----------------------------------------
In the event of any voluntary or involuntary dissolution or
termination of the Trust or the Sponsor otherwise gives notice of its election
to dissolve the Trust pursuant to Section 8.1(a)(iii) of the Declaration, the
Trust shall be liquidated by the Administrative Trustees as expeditiously as the
Administrative Trustees determine to be possible by distributing, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, to the Holders a Like Amount (as defined below) of the Debentures, unless
such distribution is determined by the Property Trustee not to be practicable,
in which event such Holders will be entitled to receive Pro Rata out of the
assets of the Trust legally available for distribution to Holders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the aggregate of the liquidation amount of per Security
plus accumulated and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution").
"Like Amount" means (i) with respect to a redemption of the
Securities, Securities having a Liquidation Amount equal to that portion of
principal amount of Debentures to be contemporaneously redeemed in accordance
with their terms allocated to the Common Securities and the Preferred Securities
based upon the relative Liquidation Amounts of such classes and the proceeds of
which will be used to pay the redemption price of such Securities and (ii) with
respect to a distribution of Debentures upon the dissolution or liquidation of
the Trust, Debentures having a principal amount equal to the Liquidation Amount
of the Securities of the Holder to whom such Debentures are distributed.
If, upon any such liquidation, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets on hand legally
available to pay in full the aggregate Liquidation Distribution, then the
amounts payable directly by the Trust on the Securities shall be paid on a Pro
Rata basis.
4. Redemption and Distribution.
---------------------------
(a) Upon the repayment of the Debentures in whole or in part, at
maturity or upon early redemption (either at the option of the Debenture Issuer
or pursuant to a Special Event, as de scribed below), the proceeds from such
repayment shall be simultaneously applied by the Property Trustee (subject to
the Property Trustee having received written notice no later than 45 days prior
to such repayment) to redeem a Like Amount of the Securities at a redemption
price equal to the accrued and unpaid interest on the Securities to be so
redeemed to the date fixed for redemption, plus 100% of the principal amount
thereof (the "Redemption Price").
(b) In the case of an optional redemption, if fewer than all the
outstanding Securi ties are to be so redeemed, the Securities to be redeemed
will be determined as described in Section 4(f)(ii) below.
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The Debenture Issuer shall have the right (subject to the conditions
in the Indenture) to elect to redeem the Debentures in whole or in part at any
time on or after _________ __, 2005, upon not less than 30 days and not more
than 60 days written notice, at the Redemption Price and, simultaneous with such
redemption, to cause a Like Amount of the Securities to be redeemed by the Trust
at the Redemption Price on a Pro Rata basis or such other method as the Property
Trustee shall deem appropriate, subject to the receipt of prior approval of any
applicable regulatory agency if it is then required under applicable regulatory
requirements.
(c) If at any time an Investment Company Event, a Tax Event or a
Regulatory Capital Event (each as defined below, and each a "Special Event")
occurs and shall be continuing, the Debenture Issuer shall have the right
(subject to the conditions set forth in the Indenture) upon not less than 30 nor
more than 60 days written notice, to redeem the Debentures in whole, but not in
part, within the 90 days following the occurrence of such Special Event (the "90
Day Period"), and, simultaneous with such redemption, to cause a Like Amount of
the Securities to be redeemed by the Trust at the Redemption Price on a Pro Rata
basis or such other method as the Property Trustee shall deem appropriate, in
each case subject to the receipt of prior approval of any applicable regulatory
agency if it is then required under applicable regulatory requirements.
" Investment Company Event" means the receipt by the Sponsor of an
Opinion of Counsel, rendered by a law firm experienced in such matters, to the
effect that, as a result of 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, the Trust is or will be
considered an "investment company" that is required to be registered under the
Investment Company Act of 1940, as amended, which change becomes effective on or
after the date of original issuance of the Preferred Securities of East West
Bancorp Capital Trust I.
A "Regulatory Capital Event" shall occur at any time that the Sponsor
shall have re ceived an opinion of independent bank regulatory counsel (who
shall not be an employee of the Sponsor or the Trust) experienced in such
matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any rules, guidelines or policies of
applicable regulatory agencies or (b) any official administrative pronouncement
or judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or such pronouncement or decision is announced
on or after the date of Declaration, the Preferred Securities do not constitute,
or within 90 days of the date thereof, will not constitute, Tier 1 Capital (or
its then equivalent) applied as if the Sponsor (or its successor) were a bank
holding company for purposes of the capital adequacy guidelines of the Board of
Governors of the Federal Reserve (or any successor regulatory authority with
jurisdiction over bank holding companies), or any capital adequacy guidelines as
then in effect and applicable to the Sponsor; provided, however, that the
-------- -------
distribution of the Junior Subordinated Debentures in connection with a
termination of the Trust by the Sponsor shall not in and of itself constitute a
Regulatory Capital Event.
"Tax Event" shall occur upon receipt by the Sponsor and the Trust of
an Opinion of Counsel from counsel experienced in such matters to the effect
that, as a result of any amendment to, or change (including any announced
prospective change) in, the laws or any regulations thereunder of the United
States or any political subdivision or taxing authority thereof or therein, or
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<PAGE>
as a result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement or decision is announced on or after the date
of the Declaration, there is more than an insubstantial risk that (i) the Trust
is, or will be within 90 days of the date of such opinion, subject to United
States federal income tax with respect to income received or accrued on the
Debentures, (ii) interest payable by the Debenture Issuer on the Debentures is
not, or within 90 days of the date of such opinion, will not be, deductible by
the Debenture Issuer, 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, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
(d) On and from the date fixed by the Administrative Trustees for any
distribution of Debentures and liquidation of the Trust: (i) the Securities
will no longer be deemed to be out standing, (ii) the Clearing Agency or its
nominee (or any successor Clearing Agency or its nominee), as the Holder of the
Preferred Securities, will receive a registered global certificate or
certificates representing the Debentures to be delivered upon such distribution
and (iii) any certificates repre senting Securities not held by the Clearing
Agency or its nominee (or any successor Clearing Agency or its nominee) will be
deemed to represent beneficial interests in a Like Amount of Debentures until
such certificates are presented to the Debenture Issuer or its agent for
transfer or reissue.
(e) The Trust may not redeem fewer than all the outstanding Securities
unless all accumulated and unpaid Distributions have been paid on all Securities
for all quarterly Distribution periods terminating on or before the date of
redemption.
(f) The procedure with respect to redemptions or distributions of
Securities shall be as follows:
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution
Notice") will be given by the Trust by mail to each Holder to be redeemed
or exchanged not fewer than 30 nor more than 60 days before the date fixed
for redemption or exchange thereof which, in the case of a redemption, will
be the date fixed for redemption of the Debentures. For purposes of the
calculation of the date of redemption or exchange and the dates on which
notices are given pursuant to this Section 4(f)(i), a
Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders.
Each Redemp tion/Distribution Notice shall be addressed to the Holders at
the address of each such Holder appearing in the books and records of the
Trust. No defect in the Redemption/Distribution Notice or in the mailing
of either thereof with respect to any Holder shall affect the validity of
the redemption or exchange proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Securities are
to be redeemed, the particular Securities to be redeemed shall be selected
on a Pro Rata basis (based upon Liquidation Amounts), or such other method
as the Property Trustee shall deem appropriate, not more than 60 days prior
to the date fixed for redemption from the outstanding Preferred Securities
not previously called for redemption, provided, however, that with respect
to Holders that would be required to hold less than 100 but more than zero
Securities as a result of such pro rata redemption, the Trust shall redeem
Securities of each such Holder so that
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after such redemption such Holder shall hold either 100 Securities or such
Holder no longer holds any Securities and shall use such method (including,
without limitation, by lot) as the Property Trustee shall deem fair and
appropriate, provided, further, that any such proration may be made on the
basis of the aggregate Liquidation Amount of Securities held by each Holder
thereof and may be made by making such adjustments as the Property Trustee
deems fair and appropriate in order that only Securities in denominations
of or integral multiples thereof shall be redeemed. In respect of Preferred
Securities registered in the name of and held of record by the Clearing
Agency or its nominee (or any successor Clearing Agency or its nominee) or
any nominee, the distribution of the proceeds of such redemption will be
made to the Clearing Agency and disbursed by such Clearing Agency in
accordance with the procedures applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice (which notice will be irrevocable), then (A)
with respect to Preferred Securities issued in book-entry form, by 12:00
noon, New York City time, on the redemption date, provided that the
Debenture Issuer has paid the Property Trustee a sufficient amount of cash
in con nection with the related redemption or maturity of the Debentures
by 10:00 a.m., New York City time, on the maturity date or the date of
redemption, as the case requires, the Property Trustee will deposit
irrevocably with the Clearing Agency or its nominee (or successor Clearing
Agency or its nominee) funds sufficient to pay the Redemption Price with
respect to such Preferred Securities and will give the Clearing Agency
irrevocable instructions and authority to pay the Redemption Price to the
relevant Clearing Agency Participants, and (B) with respect to Preferred
Securities issued in certificated form and Common Securities, pro vided
that the Debenture Issuer has paid the Property Trustee a sufficient amount
of cash in connection with the related redemption or maturity of the
Debentures, the Property Trustee will pay the Redemption Price to the
Holders by check mailed to the address of the relevant Holder appearing on
the books and records of the Trust on the redemption date, provided, that
any such payment shall become due only upon surrender by the Holder of the
related certificated Preferred Securities. If a Redemption/Distribution
Notice shall have been given and funds deposited as required, if
applicable, then immediately prior to the close of business on the date of
such deposit, or on the redemption date, as applicable, Distributions will
cease to accumulate on the Securities so called for redemption and all
rights of Holders so called for redemption will cease, except the right of
the Holders of such Securities to receive the Redemption Price, but without
interest on such Redemption Price, and such Securities shall cease to be
outstanding.
(iv) Payment of accumulated and unpaid Distributions on the
Redemption Date of the Securities will be subject to the rights of Holders
on the close of business on a regular record date in respect of a
Distribution Date occurring on or prior to such Redemption Date. Neither
the Administrative Trustees nor the Trust shall be required to register or
cause to be registered the transfer of (i) any Securities beginning on the
opening of business 15 days before the day of mailing of a notice of
redemption and ending at the close of business on the day of such mailing
or (ii) any Securities selected for redemption except the unredeemed
portion of any Security being redeemed. If any date fixed for redemption of
Securities is not a Business Day, then payment of the Redemption Price
payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment
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in respect of any such delay) except that, if such next succeeding Business
Day falls in the next calendar year, such payment shall be made on the
immediately preceding Business Day, with the same force and effect as if
made on such date fixed for redemption. If payment of the Redemption Price
in respect of any Securities is improperly withheld or refused and not paid
by the Sponsor as guarantor pursuant to the relevant Securities Guarantee,
Distributions on such Securities will continue to accumulate from the
original redemption date to the actual date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of calculating the Redemption Price.
(v) Redemption/Distribution Notices shall be sent by the Property
Trustee on behalf of the Trust to (A) in respect of the Preferred
Securities, the Clearing Agency or its nominee (or any successor Clearing
Agency or its nominee) if the Global Certificates have been issued or, if
Definitive Preferred Security Certificates have been issued, to the Holder
there of, and (B) in respect of the Common Securities to the Holder
thereof.
(vi) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws and banking laws),
provided the acquiror is not the Holder of the Common Securities or the
obligor under the Indenture, the Sponsor or any of its subsidiaries may at
any time and from time to time purchase outstanding Preferred Securities by
tender, in the open market or by private agreement.
5. Voting Rights - Preferred Securities.
------------------------------------
(g) Except as provided under Sections 5(b), 6(b) and 7 and as
otherwise required by law and the Declaration, the Holders of the Preferred
Securities will have no voting rights.
(h) So long as any Debentures are held by the Property Trustee,
subject to the requirement of the Property Trustee obtaining a tax opinion in
certain circumstances set forth in the last sentence of this paragraph, the
Holders of a majority in Liquidation Amount of the Preferred Securities have the
right to (i) direct the time, method and place of conducting any proceeding for
any remedy available to the Debenture Trustee, or direct the exercise of any
trust or power conferred on such Debenture Trustee with respect to the
Debentures, (ii) waive any past default that is waivable under Section 5.07 of
the Indenture, (iii) exercise any right to rescind or annul a declaration of
acceleration of the maturity of the principal of the Debentures or (iv) consent
to any amendment, modification or termination of the Indenture or the
Debentures, where such consent shall be required, however, 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 approval of each Holder of the Preferred Securities. The Trustees shall
not revoke any action previously authorized or approved by a vote of the Holders
of the Preferred Securities except by subsequent vote of such Holders. Subject
to Section 2.7 of the Declaration, the Property Trustee shall notify each Holder
of Preferred Securities of any notice of default with respect to the Debentures.
In addition to obtaining the foregoing approvals of such Holders of the
Preferred Securities, prior to taking any of the foregoing actions, except with
respect to directing the time, method and place of conducting a proceeding for a
remedy, the Trustees shall obtain an opinion of
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counsel experienced in such matters to the effect that the Trust will not be
classified as an association taxable as a corporation for United States federal
income tax purposes on account of such action.
If an Event of Default under the Declaration has occurred and is
continuing and such event is attributable to the failure of the Debenture Issuer
to pay principal of or interest on the Debentures on the due date (or in the
case of redemption, on the redemption date), then a Holder of Preferred
Securities may directly institute a proceeding for enforcement of payment to
such Holder of the principal of or interest on a Like Amount of Debentures (a
"Direct Action") on or after the respective due date specified in the
Debentures, and the amount of the payment will be based on the Holder's pro rata
share of the amount due and owing on all Preferred Securities. In connection
with such Direct Action, the Common Securities Holder will be subrogated to the
rights of such Holder of Preferred Securities to the extent of any payment made
by the Debenture Issuer to such Holder of Preferred Securities in such Direct
Action. Except as provided in the second preceding sentence, the Holders of
Preferred Securities will not be able to exercise directly any other remedy
available to the holders of the Debentures.
Any approval or direction of Holders of Preferred Securities may be
given at a separate meeting of Holders of Preferred Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent and without prior notice. The Administrative
Trustees will cause a notice of any meeting at which Holders of Preferred
Securities are entitled to vote, to be mailed to each Holder of record of
Preferred Securities. Each such notice will include a statement setting forth
(i) the date of such meeting, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote and (iii)
instructions for the delivery of proxies.
No vote or consent of the Holders of the Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Sponsor or any Affiliate of the
Sponsor shall not be entitled to vote or consent and shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
6. Voting Rights - Common Securities.
---------------------------------
(a) Except as provided under Sections 6(b), 6(c), and 7 and as
otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
(b) Unless an Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by the holder of the Common
Securities. If an Event of Default has occurred and is continuing, the Property
Trustee and the Delaware Trustee may be removed at such time by the holders of a
Majority in liquidation amount of the outstanding Preferred Securities. In no
event will the holders of the Preferred Securities have the right to vote to
appoint, remove or replace, or increase or decrease the number of, the
Administrative Trustees, which voting rights are
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vested exclusively in the Holder of the Common Securities. No resignation or
removal of a Trustee and no appointment of a successor trustee shall be
effective until the acceptance of appointment by the successor trustee in
accordance with the provisions of the Declaration.
(c) So long as any Debentures are held by the Property Trustee,
subject to Section 2.6 of the Declaration and only after any Event of Default
with respect to the Preferred Securities has been cured, waived or otherwise
eliminated, 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 such Debenture Trustee with respect to
the Debentures, (ii) waive any past default that is waivable under Section 5.07
of the Indenture, (iii) exercise any right to rescind or annul a declaration of
acceleration of the maturity of the principal of the Debentures 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 a Majority in liquidation amount
of all outstanding Common 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 approval of each Holder of the Common Securities. The Trustees shall
not revoke any action previously authorized or approved by a vote of the Holders
of the Common Securities except by subsequent vote of such Holders. Subject to
Section 2.7 of the Declaration, the Property Trustee shall notify each Holder of
Common Securities of any notice of default with respect to the Debentures. In
addition to obtaining the foregoing approvals of such Holders of the Common
Securities, prior to taking any of the foregoing actions, the Trustees shall
obtain an opinion of counsel experienced in such matters to the effect that the
Trust will not be classified as an association taxable as a corporation for
United States federal income tax purposes on account of such action.
If an Event of Default under the Declaration has occurred and is
continuing and such event is attributable to the failure of the Debenture Issuer
to pay principal of or interest on the Debentures on the due date (or in the
case of redemption, on the redemption date), then a Holder of Common Securities
may institute a Direct Action for enforcement of payment to such Holder of the
principal of or interest on a Like Amount of Debentures on or after the
respective due date specified in the Debentures. In connection with Direct
Action, the rights of the Common Securities Holder will be subordinated to the
rights of such Holder of Preferred Securities to the extent of any payment made
by the Debenture Issuer to such Holder of Common Securities in such Direct
Action. Except as provided in the second preceding sentence, the Holders of
Common Securities will not be able to exercise directly any other remedy
available to the holders of the Debentures.
Any approval or direction of Holders of Common Securities may be given
at a separate meeting of Holders of Common Securities convened for such purpose,
at a meeting of all of the Holders of Securities in the Trust or pursuant to
written consent without prior notice. The Administrative Trustees will cause a
notice of any meeting at which Holders of Common Securities are entitled to vote
to be mailed to each Holder of record of Common Securities. Each such notice
will include a statement setting forth (i) the date of such meeting, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote and (iii) instructions for the delivery of
proxies.
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No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Debentures in accordance with the Declaration and the terms of the
Securities.
7. Amendments to Declaration and Indenture.
---------------------------------------
In addition to the requirements set out in Section 12.1 of the
Declaration, the Declaration may be amended from time to time by the Sponsor,
the Property Trustee and the Administrative Trustees, without the consent of the
Holders (i) to cure any ambiguity, correct or supplement any provisions in the
Declaration that may be inconsistent with any other provisions, or to make any
other provisions with respect to matters or questions arising under the
Declaration which shall not be inconsistent with the other provisions of the
Declaration or (ii) to modify, eliminate or add to any provisions of the
Declaration 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 Securities are outstanding or to ensure that the Trust
will not be required to register as an "Investment Company" under the Investment
Company Act provided, however, that in each case such action shall not adversely
-------- -------
affect the interests of any Holder. Any amendments of the Declaration pursuant
to the immediately preceding sentence shall become effective when notice thereof
is given to the Holders. Under the circumstances referred to in Section 12.1(c)
of the Declaration, the Declaration also may be amended by the Trustees and the
Sponsor with (i) the consent of Holders representing a Majority in liquidation
amount of all outstanding Securities, and (ii) 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, provided that, without the consent of each Holder of
-------- ----
Trust Securities, the Declaration 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 Holder of
Trust Securities to institute suit for the enforcement of any such payment on or
after such date.
8. Pro Rata.
--------
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
according to the aggregate liquidation amount of the Securities held by the
relevant Holder in relation to the aggregate liquidation amount of all
Securities outstanding unless, in relation to a payment, an Event of Default
under the Declaration has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the
Preferred Securities pro rata according to the aggregate liquidation amount of
Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate liquidation
amount of Common Securities held by the relevant Holder relative to the
aggregate liquidation amount of all Common Securities outstanding. In any such
proration, the Property Trustee on behalf of the Trust may make such adjustments
as may be appropriate in order that only securities in authorized denominations
shall be redeemed.
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9. Ranking.
-------
The Preferred Securities rank pari passu with the Common Securities
---- -----
and payment thereon shall be made Pro Rata with the Common Securities, except
that, if an Event of Default under the Declaration occurs and is continuing, no
payments in respect of Distributions on, or payments upon liquidation,
redemption or otherwise with respect to, the Common Securities shall be made
until the Holders of the Preferred Securities shall be paid in full the
Distributions, Redemption Price, Liquidation Distribution and other payments to
which they are entitled at such time.
10. Acceptance of Securities Guarantee and Indenture.
------------------------------------------------
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
11. No Preemptive Rights.
--------------------
The Holders shall have no preemptive or similar rights to subscribe
for any additional securities in the Trust. The issuance of the Securities is
not subject to any preemptive or similar rights.
12. Miscellaneous.
-------------
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee, the Common Securities Guarantee (as may be appropriate)
and the Indenture (including any supplemental indenture) to a Holder without
charge upon written request to the Sponsor at its principal place of business.
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EXHIBIT A-1
FORM OF ____% CUMULATIVE TRUST PREFERRED SECURITY CERTIFICATE
[FACE OF SECURITY]
[if issued as a Global Security insert:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE DECLARATION
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION AND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY.
UNLESS THIS PREFERRED SECURITY CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TO THE TRUST OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHO RIZED
REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSONS IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
A1-1
<PAGE>
Number of
Preferred Securities: CUSIP NO.
Certificate Evidencing _____% Cumulative Trust Preferred Securities
of
East West Bancorp Capital Trust I
_____% Cumulative Trust Preferred Securities
(liquidation amount ___ per Preferred Security)
East West Bancorp Capital Trust I, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Cede & Co. (the "Holder") is the registered owner of __________ Preferred
Securities (as defined below) ($________ in aggregate liquidation amount of
Preferred Securities) of the Trust representing undivided beneficial interests
in the assets of the Trust designated the ____% Cumulative Trust Preferred
Securities (liquidation amount per Preferred Security) (the "Preferred
Securities"). Subject to the Declaration (as defined below), the Preferred
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. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Declaration of Trust of the Trust
dated as of __________ __, 2000, as the same may be amended from time to time
(the "Declaration"), including the designation of the terms of the Preferred
Securities as set forth in Annex I to the Declaration. Capitalized terms used
but not defined herein shall have the meaning given them in the Declaration. The
Sponsor will provide a copy of the Declaration, the Preferred Securities
Guarantee, the Common Securities Guarantee (as may be appropriate), and the
Indenture (including any supplemental indenture) to a Holder without charge upon
written request to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder and to the benefits of
the Preferred Securities Guarantee to the extent provided therein.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Preferred Securities
as evidence of indirect beneficial ownership in the Debentures.
This Certificate shall be governed by and construed in accordance with
the laws of the State of Delaware, without regard to principles of conflict of
laws.
A1-2
<PAGE>
IN WITNESS WHEREOF, the Trust has duly executed this certificate this
___ day of _______ 2000.
EAST WEST BANCORP CAPITAL TRUST I
By:__________________________________________
Julia Gouw
Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the within-
mentioned Declaration.
________________________,
as Property Trustee
Dated:
By:__________________________________________
Authorized Signatory
A1-3
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed at a
rate per annum of ____% (the "Coupon Rate") of the liquidation amount of per
Preferred Security, such rate being the rate of interest payable on the
Debentures to be held by the Property Trustee. Distributions in arrears for
more than one quarterly period will bear interest thereon compounded quarterly
at the Coupon Rate (to the extent permitted by applicable law). A Distribution
is payable only to the extent that payments are made in respect of the
Debentures held by the Property Trustee and to the extent the Property Trustee
has funds on hand legally available therefor.
Distributions on the Preferred Securities will be cumulative, will
accumulate from the most recent date to which Distributions have been paid or
duly provided for, if no Distributions have been paid or duly provided for, from
_________ __, 2000 and will be payable quarterly in arrears, on the last day of
March, June, September and December of each year, commencing on ________ __,
____, except as otherwise described below. Distributions will be computed on
the basis of a 360-day year consisting of twelve 30-day months and, for any
period less than a full calendar quarter, the number of days elapsed in such 90-
day quarter based on 30-day months. As long as no Event of Default has occurred
and is continuing under the Indenture, the Debenture Issuer has the right under
the Indenture to defer payments of interest by extending the interest payment
period at any time and from time to time on the Debentures for a period not
exceeding 20 consecutive calendar quarterly periods, including the first such
quarterly period during such extension period (each an "Extension Period"),
provided that no Extension Period shall end on a date other than an Interest
- -------- ----
Payment Date for the Debentures or extend beyond the Maturity Date of the
Debentures. As a consequence of such deferral, Distributions also will be
deferred. Despite such deferral, quarterly Distributions will continue to
accumulate with interest thereon (to the extent permitted by applicable law) at
the Coupon Rate compounded quarterly during any such Extension Period. Prior to
the termination of any such Extension Period, the Debenture Issuer may further
defer payments of interest by further extending such Extension Period; provided
--------
that such further deferment shall only be permitted to the extent that such
- ----
Extension Period, together with all extensions occurring both before and after
such deferment, does not exceed 20 consecutive quarterly periods, including the
first quarterly period during such Extension Period, end on a date other than an
Interest Payment Date for the Debentures or extend beyond the Maturity Date of
the Debentures. Payments of accumulated Distributions will be payable to Holders
as they appear on the books and records of the Trust on the first record date
after the end of the Extension Period. Upon the termination of any Extension
Period and the payment of all amounts then due, the Debenture Issuer may
commence a new Extension Period, subject to the above requirements.
Subject to the receipt of any required regulatory approval and to
certain other conditions set forth in the Declaration and the Indenture, the
Property Trustee may, at the direction of the Sponsor, at any time dissolve the
Trust and cause the Debentures to be distributed to the holders of the
Securities in liquidation of the Trust or, simultaneous with any redemption of
the Debentures, cause a Like Amount of the Securities to be redeemed by the
Trust.
The Preferred Securities shall be redeemable as provided in the
Declaration.
A1-4
<PAGE>
_____________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
______________________________________________________________________________
______________________________________________________________________________
(Insert assignee's social security or tax identification number)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
_______________________________________________________________________________
_______________________________________________________________________________
___________________________________________________________ agent to transfer
this Preferred 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 Preferred Security
Certificate)
Signature Guarantee/*/: ______________________________
- ------------------------
/*/ Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A1-5
<PAGE>
Schedule A***
The initial number of Preferred Securities evidenced by the Certificate to
which this Schedule is attached is ________ (having an aggregate liquidation
amount of $________). The notations in the following table evidence decreases
and increases in the number of Preferred Securities evidenced by such
Certificate.
<TABLE>
<CAPTION>
Number of Preferred
Decrease in Number Increase in Number Securities Remaining Notation
of Preferred of Preferred after such Decrease or by
Securities Securities Increase Registrar
- ------------------------------------------------------------------------------------
<S> <C> <C> <C>
</TABLE>
* Append to Global Preferred Securities only.
A1-6
<PAGE>
EXHIBIT A-2
[FORM OF COMMON SECURITY CERTIFICATE]
THIS COMMON 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 COMMON 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, REGISTRATION.
THE HOLDER OF THIS COMMON SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER THIS COMMON 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 EAST WEST BANCORP, INC.
(THE "COMPANY") OR ANY "AFFILIATE" OF THE COMPANY WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF THIS SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) SO LONG AS THIS COMMON 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 COMMON SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITU
TIONAL 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
TRUST AND 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 EACH OF THEM, AND (ii)
PURSUANT TO CLAUSE (D), TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE REVERSE OF THIS COMMON SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEREE TO THE TRUST. SUCH HOLDER FURTHER AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS COMMON SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND.
A2-1
<PAGE>
THIS COMMON SECURITY IS NOT TRANSFERABLE EXCEPT AS SET FORTH IN SECTION
9.1(c) OF THE AMENDED AND RESTATED DECLARATION OF TRUST OF EAST WEST BANCORP
CAPITAL TRUST I, DATED AS OF __________ __, 2000, AS THE SAME MAY BE AMENDED
FROM TIME TO TIME.
A2-2
<PAGE>
Certificate No. 1
Certificate Evidencing Common Securities
of
East West Bancorp Capital Trust I
____% Common Securities
(liquidation amount ___ per Common Security)
East West Bancorp Capital Trust I, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that
East West Bancorp, Inc. (the "Holder") is the registered owner of ______ common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust designated the ____% Common Securities (liquidation amount
per Common Security) (the "Common Securities"). Subject to the limitations in
Section 9.1(c) of the Declaration (as defined below), the Common 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. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities represented
hereby are issued and shall in all respects be subject to the provisions of the
Amended and Restated Declaration of Trust of the Trust dated as of _______ __,
2000, as the same may be amended from time to time (the "Declaration"),
including the designation of the terms of the Common Securities as set forth in
Annex I to the Declaration. Capitalized terms used but not defined herein shall
have the meaning given them in the Declaration. The Sponsor will provide a copy
of the Declaration, the Common Securities Guarantee, the Preferred Securities
Guarantee (as may be appropriate) and the Indenture (including any supplemental
indenture) to a Holder without charge upon written request to the Sponsor at its
principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder and to the benefits of
the Common Securities Guarantee to the extent provided therein.
By acceptance, the Holder agrees to treat, for United States federal
income tax purposes, the Debentures as indebtedness and the Common Securities as
evidence of indirect beneficial ownership in the Debentures.
This Certificate shall be governed by and construed in accordance with
the laws of the State of Delaware, without regard to principles of conflicts of
laws.
A2-3
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this _____
day of ________ 2000.
EAST WEST BANCORP CAPITAL TRUST I
By:___________________________________
Julia Gouw
Administrative Trustee
A2-4
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a rate
per annum of _____% (the "Coupon Rate") of the liquidation amount of per Common
Security, such rate being the rate of interest payable on the Debentures to be
held by the Property Trustee. Distributions in arrears for more than one
quarterly period will bear interest thereon compounded quarterly at the Coupon
Rate (to the extent permitted by applicable law). A Distribution is payable
only to the extent that payments are made in respect of the Debentures held by
the Property Trustee and to the extent the Property Trustee has funds available
therefor.
Distributions on the Common Securities will be cumulative, will accrue
from the most recent date to which Distributions have been paid or duly provided
for or, if no Distributions have been paid or duly provided for, from _________
__, 2000 and will be payable quarterly in arrears, on the last day of March,
June, September and December of each year, commencing on __________ __, ____,
except as otherwise described below. Distributions will be computed on the
basis of a 360-day year consisting of twelve 30-day months and, for any period
less than a full calendar quarter, the number of days elapsed in such 90-day
quarter based on 30-day months. As long as no Event of Default has occurred and
is continuing under the Indenture, the Debenture Issuer has the right under the
Indenture to defer payments of interest by extending the interest payment period
at any time and from time to time on the Debentures for a period not exceeding
20 consecutive calendar quarterly periods, including the first such quarterly
period during such extension period (each an "Extension Period"), provided that
-------- ----
no Extension Period shall end on a date other than an Interest Payment Date for
the Debentures or extend beyond the Maturity Date of the Debentures. As a
consequence of such deferral, Distributions also will be deferred. Despite such
deferral, Distributions will continue to accumulate with interest thereon (to
the extent permitted by applicable law) at the Coupon Rate compounded quarterly
during any such Extension Period. Prior to the termination of any such
Extension Period, the Debenture Issuer may further defer payments of interest by
further extending such Extension Period; provided that such further deferment
-------- ----
shall only be permitted to the extent that such Extension Period, together with
all extensions occurring both before and after such deferment, does not exceed
20 consecutive quarterly periods, including the first quarterly period during
such Extension Period, or end on a date other than an Interest Payment Date for
the Debentures or extend beyond the Maturity Date of the Debentures. Payments
of accrued Distributions will be payable to Holders as they appear on the books
and records of the Trust on the first record date after the end of the Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
Subject to the receipt of any required regulatory approval and to
certain other conditions set forth in the Declaration and the Indenture, the
Property Trustee may, at the direction of the Sponsor, at any time dissolve the
Trust and cause the Debentures to be distributed to the holders to the
Securities in liquidation of the Trust or, simultaneous with any redemption of
the Debentures, cause a Like Amount of the Securities to be redeemed by the
Trust.
A2-5
<PAGE>
Under certain circumstances, the right of the holders of the Common
Securities shall be subordinate to the rights of the holders of the Preferred
Securities (as defined in the Declaration), as provided in the Declaration.
The Common Securities shall be redeemable as provided in the
Declaration.
_____________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Insert assignee's social security or tax identification number)
______________________________________________________________________________
______________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
______________________________________________________________________________
_______________________________________________________________________________
___________________________________________________________ agent to transfer
this Common 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 Common Security
Certificate)
A2-6
<PAGE>
EXHIBIT B
SPECIMEN OF DEBENTURE
B-1
<PAGE>
EXHIBIT C
UNDERWRITING AGREEMENT
C-1
<PAGE>
EXHIBIT 4.6
-----------------------------------
TRUST PREFERRED SECURITIES
GUARANTEE AGREEMENT
EAST WEST BANCORP, INC.
Dated as of ________ ___, 2000
------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.......................................... 1
------------------------------
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application....................................... 5
--------------------------------
SECTION 2.2 Lists of Holders of Trust Preferred Securities......................... 6
----------------------------------------------
SECTION 2.3 Reports by the Trust Preferred Securities Guarantee Trustee............ 6
-----------------------------------------------------------
SECTION 2.4 Periodic Reports to Trust Preferred Securities Guarantee
--------------------------------------------------------
Trustee............................................................ 6
-------
SECTION 2.5 Evidence of Compliance with Conditions Precedent....................... 6
------------------------------------------------
SECTION 2.6 Guarantee Events of Default; Waiver.................................... 7
-----------------------------------
SECTION 2.7 Guarantee Event of Default; Notice..................................... 7
----------------------------------
SECTION 2.8 Conflicting Interests.................................................. 7
---------------------
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
TRUST PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Trust Preferred Securities Guarantee Trustee.. 8
----------------------------------------------------------------------
SECTION 3.2 Certain Rights of Trust Preferred Securities Guarantee Trustee......... 10
--------------------------------------------------------------
SECTION 3.3 Not Responsible for Recitals or Issuance of Trust Preferred Securities
----------------------------------------------------------------------
Guarantee.......................................................... 12
---------
ARTICLE IV
TRUST PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Trust Preferred Securities Guarantee Trustee; Eligibility.............. 12
---------------------------------------------------------
SECTION 4.2 Appointment, Removal and Resignation of Trust Preferred Securities
------------------------------------------------------------------
Guarantee Trustee.................................................. 13
-----------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.............................................................. 14
---------
SECTION 5.2 Waiver of Notice and Demand............................................ 14
---------------------------
SECTION 5.3 Obligations Not Affected............................................... 14
------------------------
SECTION 5.4 Rights of Holders...................................................... 15
-----------------
SECTION 5.5 Guarantee of Payment................................................... 16
--------------------
SECTION 5.6 Subrogation............................................................ 16
-----------
SECTION 5.7 Independent Obligations................................................ 16
-----------------------
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.............................................. 16
--------------------------
SECTION 6.2 Ranking................................................................. 17
-------
ARTICLE VII
TERMINATION
SECTION 7.1 Termination............................................................ 17
-----------
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation............................................................. 18
-----------
SECTION 8.2 Indemnification......................................................... 18
---------------
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.................................................. 18
----------------------
SECTION 9.2 Amendments.............................................................. 19
----------
SECTION 9.3 Notices................................................................. 19
-------
SECTION 9.4 Benefit................................................................. 20
-------
SECTION 9.5 Governing Law........................................................... 20
-------------
</TABLE>
ii
<PAGE>
TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT
This Trust Preferred Securities Guarantee Agreement (the "Trust
Preferred Securities Guarantee"), dated as of __________ __, 2000, is executed
and delivered by East West Bancorp, Inc., a Delaware corporation (the
"Guarantor"), and _______________________, a _________ banking corporation, as
trustee, for the benefit of the Holders (as defined herein) from time to time of
the Trust Preferred Securities (as defined herein) of East West Bancorp Capital
Trust I, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of_______ __, 2000, among the trustees of the Issuer
named therein, the Guarantor, as sponsor, and the Holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof, __________ trust preferred securities, having an
aggregate liquidation amount of $__________, such trust preferred securities
being designated the ___% Cumulative Trust Preferred Securities (collectively
the "Trust Preferred Securities"); and
WHEREAS, as incentive for the Holders to purchase the Trust Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Trust Preferred Securities Guarantee, 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; and
WHEREAS, the Guarantor is executing and delivering a guarantee
agreement (the "Common Securities Guarantee"), with substantially identical
terms to this Trust Preferred Securities Guarantee, for the benefit of the
holders of the Common Securities (as defined herein), except that if an Event of
Default (as defined in the Declaration) has occurred and is continuing, the
rights of holders of the Common Securities to receive Guarantee Payments under
the Common Securities Guarantee are subordinated, to the extent and in the
manner set forth in the Common Securities Guarantee, to the rights of holders of
Trust Preferred Securities to receive Guarantee Payments under this Trust
Preferred Securities Guarantee;
NOW, THEREFORE, in consideration of the purchase by each Holder, which
purchase the Guarantor hereby acknowledges shall benefit the Guarantor, the
Guarantor executes and delivers this Trust Preferred Securities Guarantee for
the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
------------------------------
In this Trust Preferred Securities Guarantee, unless the context
otherwise requires:
<PAGE>
(a) capitalized terms used in this Trust Preferred Securities
Guarantee but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;
(b) a term defined in the Declaration as at the date of execution of
this Trust Preferred Securities Guarantee have the same meaning
when used in this Trust Preferred Securities Guarantee unless
otherwise defined in this Trust Preferred Securities Guarantee;
(c) a term defined anywhere in this Trust Preferred Securities
Guarantee has the same meaning throughout;
(d) all references to "the Trust Preferred Securities Guarantee" or
"this Trust Preferred Securities Guarantee" are to this Trust
Preferred Securities Guarantee as modified, supplemented or
amended from time to time;
(e) all references in this Trust Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Trust
Preferred Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning
when used in this Trust Preferred Securities Guarantee, unless
otherwise defined in this Trust Preferred Securities Guarantee or
unless the context otherwise requires; and
(g) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
---------
under the Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" means any day other than a Saturday or a Sunday, or a
------------
day on which banking institutions in the cities of New York, New York or San
Marino, California are authorized or required by law or executive order to
close.
"Common Securities" means the securities representing common undivided
-----------------
beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Trust Preferred
----------------------
Securities Guarantee Trustee at which the corporate trust business of the Trust
Preferred Securities Guarantee Trustee shall, at any particular time, be
principally administered, which office at the date of execution of this Trust
Preferred Securities Guarantee is located at 101 Barclay Street, New York, New
York 10286.
2
<PAGE>
"Covered Person" means any Holder or beneficial owner of Trust
--------------
Preferred Securities.
"Debentures" means the series of subordinated deferrable interest
----------
debentures of the Guarantor designated the ___% Junior Subordinated Deferrable
Interest Debentures due ____________ __, 2030 held by the Property Trustee (as
defined in the Declaration) of the Issuer.
"Guarantee Event of Default" means a default by the Guarantor on any
--------------------------
of its payment or other obligations under this Trust Preferred Securities
Guarantee; provided, however, that except with respect to a default in payment
of any Guarantee Payment, the Guarantor shall have received notice of default
and shall not have cured such default within 60 days after receipt of such
notice.
"Guarantee Payments" means the following payments or distributions,
------------------
without duplication, with respect to the Trust Preferred Securities, to the
extent not paid or made by the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Declaration) that are required to be paid on
such Trust Preferred Securities to the extent the Issuer has funds on hand
legally available therefor at such time; (ii) the redemption price, including
all accumulated and unpaid Distributions to the date of redemption (the
"Redemption Price") to the extent the Issuer has funds on hand legally available
therefor at such time, with respect to any Trust Preferred Securities called for
redemption by the Issuer; and (iii) upon a voluntary or involuntary dissolution
or winding up of the Issuer (other than in connection with the distribution of
Debentures to the Holders in exchange for Trust Preferred Securities as provided
in the Declaration), the lesser of (a) the aggregate of the liquidation amount
and all accumulated and unpaid Distributions on the Trust Preferred Securities
to the date of payment, to the extent the Issuer has funds on hand legally
available therefor, 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 (in either case, the "Liquidation
Distribution"). If an Event of Default has occurred and is continuing, no
Guarantee Payments under the Common Securities Guarantee with respect to the
Common Securities or any guarantee payment under any Other Common Securities
Guarantees shall be made until the Holders shall be paid in full the Guarantee
Payments to which they are entitled under this Trust Preferred Securities
Guarantee.
"Holder" shall mean any holder, as registered on the books and records
------
of the Issuer, of any Trust Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Trust Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Trust Preferred Securities Guarantee
------------------
Trustee, any Affiliate of the Trust Preferred Securities Guarantee Trustee, or
any officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Trust Preferred
Securities Guarantee Trustee.
3
<PAGE>
"Indenture" means the Indenture dated as of __________ __, 2000, among
---------
the Guarantor (the "Debenture Issuer") and ______________________, as trustee
(the "Indenture Trustee"), pursuant to which the Debentures are to be issued to
the Property Trustee of the Issuer.
"Indenture Event of Default" shall mean any event specified in
--------------------------
Section 5.01 of the Indenture.
"Majority in liquidation amount of the Trust Preferred Securities"
----------------------------------------------------------------
means, except as provided by the Declaration, the terms of the Preferred
Securities or by the Trust Indenture Act, a vote by Holder(s) of more than 50%
of the aggregate liquidation amount of all Trust Preferred Securities. In
determining whether the Holders of the requisite amount of Trust Preferred
Securities have voted, Trust Preferred Securities which are owned by the
Guarantor or any Affiliate of the Guarantor or any other obligor on the Trust
Preferred Securities shall be disregarded for the purpose of any such
determination.
"Officers' Certificate" means, with respect to the Guarantor, a
---------------------
certificate signed by any two of the following: the Chairman, a Vice Chairman,
the Chief Executive Officer, the President, a Vice President, the Comptroller,
the Secretary or an Assistant Secretary of the Guarantor. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Trust Preferred Securities Guarantee (other than pursuant
to Section 314(d)(4) of the Trust Indenture Act) 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 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
(c) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Other Common Securities Guarantees" shall have the same meaning as
----------------------------------
"Other Guarantees" as defined in the Common Securities Guarantee.
"Other Debentures" means all junior subordinated debentures issued by
----------------
the Guarantor from time to time and sold to trusts to be established by the
Guarantor, in each case similar to the Issuer.
"Other Guarantees" means all guarantees issued or to be issued by the
----------------
Guarantor with respect to trust preferred securities similar to the Trust
Preferred Securities issued by other trusts established or to be established by
the Guarantor, in each case similar to the Issuer.
4
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"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.
"Responsible Officer" means, with respect to the Trust Preferred
-------------------
Securities Guarantee Trustee, any officer within the Corporate Trust Office of
the Trust Preferred Securities Guarantee Trustee with direct responsibility for
the administration of this Trust Preferred Securities Guarantee 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.
"Successor Trust Preferred Securities Guarantee Trustee" means a
------------------------------------------------------
successor Trust Preferred Securities Guarantee Trustee possessing the
qualifications to act as Trust Preferred Securities Guarantee Trustee under
Section 4.1.
"Trust Preferred Securities Guarantee Trustee" means
--------------------------------------------
___________________, a __________ banking corporation, until a Successor Trust
Preferred Securities Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Trust Preferred Securities Guarantee
and thereafter means each such Successor Trust Preferred Securities Guarantee
Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
-------------------
amended from time to time, or any successor legislation.
"Trust Securities" means the Common Securities and the Trust
----------------
Preferred Securities, collectively.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
--------------------------------
(a) This Trust Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this Trust
Preferred Securities Guarantee and shall, to the extent applicable, be governed
by such provisions; and
(b) if and to the extent that any provision of this Trust Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
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SECTION 2.2 Lists of Holders of Trust Preferred Securities
----------------------------------------------
(a) The Guarantor shall provide the Trust Preferred Securities
Guarantee Trustee (unless the Trust Preferred Securities Guarantee Trustee is
otherwise the registrar of the Trust Preferred Securities) with a list, in such
form as the Trust Preferred Securities Guarantee Trustee may reasonably require,
of the names and addresses of the Holders of the Trust Preferred Securities
("List of Holders") as of such date, (i) within 14 days after each record date
for payment of Distributions, as defined in the Declaration, and (ii) at any
other time within 30 days of receipt by the Guarantor of a written request for a
List of Holders as of a date no more than 14 days before such List of Holders is
given to the Trust Preferred Securities Guarantee Trustee, provided, that the
--------
Guarantor shall not be obligated to provide such List of Holders at any time the
List of Holders does not differ from the most recent List of Holders given to
the Trust Preferred Securities Guarantee Trustee by the Guarantor. The Trust
Preferred Securities Guarantee Trustee shall preserve, in as current a form as
is reasonably practicable, all information contained in a List of Holders given
to it, provided that it may destroy any List of Holders previously given to it
on receipt of a new List of Holders.
(b) The Trust Preferred Securities Guarantee Trustee shall comply
with its obligations under Sections 311(a), 311(b) and Section 312(b) of the
Trust Indenture Act.
SECTION 2.3 Reports by the Trust Preferred Securities Guarantee Trustee
-----------------------------------------------------------
Within 60 days after May 15 of each year, commencing May 15, 2000, the
Trust Preferred Securities 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 Trust Preferred Securities Guarantee Trustee shall also comply with the
other requirements of Section 313 of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Trust Preferred Securities Guarantee Trustee
----------------------------------------------------------------
The Guarantor shall provide to the Trust Preferred Securities
Guarantee 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 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, provided that such
compliance certificate shall be delivered on or before 120 days after the end of
each fiscal year of the Guarantor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
------------------------------------------------
The Guarantor shall provide to the Trust Preferred Securities
Guarantee Trustee such evidence of compliance with any conditions precedent, if
any, provided for in this Trust Preferred Securities Guarantee that relate to
any of the matters set forth in Section 314(c) of the Trust
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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 2.6 Guarantee Events of Default; Waiver
-----------------------------------
The Holders of a Majority in liquidation amount of Trust Preferred
Securities may, by vote or by written consent, on behalf of all Holders, waive
any past Guarantee Event of Default and its consequences. Upon such waiver, any
such Guarantee Event of Default shall cease to exist, and any Guarantee Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Trust Preferred Securities Guarantee, but no such waiver shall extend to
any subsequent or other default or Guarantee Event of Default or impair any
right consequent thereon.
SECTION 2.7 Guarantee Event of Default; Notice
----------------------------------
(a) The Trust Preferred Securities Guarantee Trustee shall, within 90
days after the occurrence of a Guarantee Event of Default, mail by first class
postage prepaid, to all Holders, notices of all Guarantee Events of Default
actually known to a Responsible Officer, unless such defaults have been cured
before the giving of such notice; provided, that, except in the case of a
Guarantee Event of Default in the timing or payment of any Guarantee Payment,
the Trust Preferred Securities 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 a Responsible Officer of the
Trust Preferred Securities Guarantee Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders.
(b) The Trust Preferred Securities Guarantee Trustee shall not be
deemed to have knowledge of any Guarantee Event of Default unless the Trust
Preferred Securities Guarantee Trustee shall have received written notice from
the Guarantor, or a Responsible Officer charged with the administration of this
Trust Preferred Securities Guarantee shall have obtained actual knowledge, of
such Guarantee Event of Default.
SECTION 2.8 Conflicting Interests
---------------------
The Declaration shall be deemed to be specifically described in this
Trust Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF
TRUST PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Trust Preferred Securities Guarantee
-------------------------------------------------------------
Trustee
-------
(a) This Trust Preferred Securities Guarantee shall be held by the
Trust Preferred Securities Guarantee Trustee for the benefit of the Holders, and
the Trust Preferred Securities Guarantee Trustee shall not transfer this Trust
Preferred Securities Guarantee to any Person except a Holder exercising his, her
or its rights pursuant to Section 5.4(b) or to a Successor Trust Preferred
Securities Guarantee Trustee on acceptance by such Successor Trust Preferred
Securities Guarantee Trustee of its appointment to act as Successor Trust
Preferred Securities Guarantee Trustee. The right, title and interest of the
Trust Preferred Securities Guarantee Trustee shall automatically vest in any
Successor Trust Preferred Securities Guarantee Trustee, and such vesting and
succession of title shall be effective whether or not conveyancing documents
have been executed and delivered pursuant to the appointment of such Successor
Trust Preferred Securities Guarantee Trustee.
(b) If a Guarantee Event of Default actually known to a Responsible
Officer has occurred and is continuing, the Trust Preferred Securities Guarantee
Trustee shall enforce this Trust Preferred Securities Guarantee for the benefit
of the Holders.
(c) The Trust Preferred Securities Guarantee Trustee, before the
occurrence of any Guarantee Event of Default and after the curing of all
Guarantee Events of Default that may have occurred, shall undertake to perform
only such duties as are specifically set forth in this Trust Preferred
Securities Guarantee, and no implied covenants shall be read into this Trust
Preferred Securities Guarantee against the Trust Preferred Securities Guarantee
Trustee. In case a Guarantee Event of Default has occurred (that has not been
cured or waived pursuant to Section 2.6) and is actually known to a Responsible
Officer, the Trust Preferred Securities Guarantee Trustee shall exercise such of
the rights and powers vested in it by this Trust Preferred Securities Guarantee,
and use the same degree of care and skill in its exercise thereof, 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 Preferred Securities Guarantee shall
be construed to relieve the Trust Preferred Securities 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 Guarantee Event of Default
and after the curing or waiving of all such Guarantee Events of Default
that may have occurred:
(A) the duties and obligations of the Trust Preferred
Securities Guarantee Trustee shall be determined solely by the express
provisions of this Trust Preferred Securities Guarantee, and the Trust
Preferred Securities
8
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Guarantee Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Trust Preferred Securities Guarantee, and no implied covenants or
obligations shall be read into this Trust Preferred Securities
Guarantee against the Trust Preferred Securities Guarantee Trustee;
and
(B) in the absence of bad faith on the part of the Trust
Preferred Securities Guarantee Trustee, the Trust Preferred Securities
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 Trust Preferred
Securities Guarantee Trustee and conforming to the requirements of
this Trust Preferred Securities Guarantee; but in the case of any such
certificates or opinions that by any provision hereof are specifically
required to be furnished to the Trust Preferred Securities Guarantee
Trustee, the Trust Preferred Securities Guarantee Trustee shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Trust Preferred Securities
Guarantee (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);
(ii) the Trust Preferred Securities Guarantee 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 Trust Preferred Securities
Guarantee Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Trust Preferred Securities 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 a Majority in
liquidation amount of the Trust Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available to
the Trust Preferred Securities Guarantee Trustee, or exercising any trust
or power conferred upon the Trust Preferred Securities Guarantee Trustee
under this Trust Preferred Securities Guarantee; and
(iv) no provision of this Trust Preferred Securities Guarantee
shall require the Trust Preferred Securities 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 Trust Preferred Securities Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Trust
Preferred Securities Guarantee or indemnity, reasonably satisfactory to the
Trust Preferred Securities Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
9
<PAGE>
SECTION 3.2 Certain Rights of Trust Preferred Securities Guarantee Trustee
--------------------------------------------------------------
(a) Subject to the provisions of Section 3.1:
(i) The Trust Preferred Securities Guarantee Trustee may
conclusively 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
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
Trust Preferred Securities Guarantee may be sufficiently evidenced by an
Officers' Certificate.
(iii) Whenever, in the administration of this Trust Preferred
Securities Guarantee, the Trust Preferred Securities Guarantee Trustee
shall deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Trust Preferred
Securities Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Guarantor.
(iv) The Trust Preferred Securities Guarantee Trustee shall
have no duty to see to any recording, filing or registration of any
instrument (or any rerecording, refiling or registration thereof).
(v) The Trust Preferred Securities Guarantee Trustee may
consult with counsel of its selection, and the advice or opinion of such
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 counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The Trust Preferred
Securities Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Preferred
Securities Guarantee from any court of competent jurisdiction.
(vi) The Trust Preferred Securities Guarantee Trustee shall be
under no obligation to exercise any of the rights or powers vested in it by
this Trust Preferred Securities Guarantee at the request or direction of
any Holder, unless such Holder shall have provided to the Trust Preferred
Securities Guarantee Trustee such security and indemnity, reasonably
satisfactory to the Trust Preferred Securities Guarantee Trustee, against
the costs, expenses (including attorneys' fees and expenses and the
expenses of the Trust Preferred Securities Guarantee Trustee's agents,
nominees or custodians) 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 Trust Preferred Securities Guarantee
Trustee; provided
10
<PAGE>
that, nothing contained in this Section 3.2(a)(vi) shall be taken to
relieve the Trust Preferred Securities Guarantee Trustee, upon the
occurrence of a Guarantee Event of Default, of its obligation to exercise
the rights and powers vested in it by this Trust Preferred Securities
Guarantee.
(vii) The Trust Preferred Securities 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 Trust Preferred
Securities Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(viii) The Trust Preferred Securities Guarantee Trustee may
execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, nominees, custodians or
attorneys, and the Trust Preferred Securities Guarantee Trustee shall not
be responsible for any misconduct or negligence on the part of any agent,
custodian, nominee or attorney appointed with due care by it hereunder.
(ix) Any action taken by the Trust Preferred Securities
Guarantee Trustee or its agents hereunder shall bind the Holders, and the
signature of the Trust Preferred Securities Guarantee Trustee or its agents
alone shall be sufficient and effective to perform any such action. No
third party shall be required to inquire as to the authority of the Trust
Preferred Securities Guarantee Trustee to so act or as to its compliance
with any of the terms and provisions of this Trust Preferred Securities
Guarantee, both of which shall be conclusively evidenced by the Trust
Preferred Securities Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Trust Preferred
Securities Guarantee the Trust Preferred Securities Guarantee Trustee shall
deem it desirable to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder, the Trust Preferred
Securities Guarantee Trustee (i) may request instructions from the Holders
of a Majority in liquidation amount of the Trust Preferred Securities, (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
conclusively relying on or acting in accordance with such instructions.
(xi) The Trust Preferred Securities Guarantee Trustee shall not
be liable for any action taken, suffered, or omitted to be taken by it in
good faith, without negligence, and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Trust Preferred Securities Guarantee.
(b) No provision of this Trust Preferred Securities Guarantee shall
be deemed to impose any duty or obligation on the Trust Preferred Securities
Guarantee Trustee to perform any
11
<PAGE>
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
Trust Preferred Securities 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 Trust Preferred Securities Guarantee Trustee shall be
construed to be a duty.
SECTION 3.3. Not Responsible for Recitals or Issuance of Trust Preferred
-----------------------------------------------------------
Securities Guarantee
--------------------
The recitals contained in this Trust Preferred Securities Guarantee
shall be taken as the statements of the Guarantor, and the Trust Preferred
Securities Guarantee Trustee does not assume any responsibility for their
correctness. The Trust Preferred Securities Guarantee Trustee makes no
representation as to the validity or sufficiency of this Trust Preferred
Securities Guarantee.
ARTICLE IV
TRUST PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Trust Preferred Securities Guarantee Trustee; Eligibility
---------------------------------------------------------
(a) There shall at all times be a Trust Preferred Securities
Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section 4.1(a)(ii), 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 Trust Preferred Securities Guarantee Trustee
shall cease to be eligible to so act under Section 4.1(a), the Trust Preferred
Securities Guarantee Trustee shall immediately resign in the manner and with the
effect set out in Section 4.2(c).
(c) If the Trust Preferred Securities Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Trust
12
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Preferred Securities Guarantee Trustee and Guarantor shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Trust Preferred Securities
------------------------------------------------------------------
Guarantee Trustee
-----------------
(a) Subject to Section 4.2(b), the Trust Preferred Securities
Guarantee Trustee may be appointed or removed without cause at any time by the
Guarantor except during a Guarantee Event of Default.
(b) The Trust Preferred Securities Guarantee Trustee shall not be
removed in accordance with Section 4.2(a) until a Successor Trust Preferred
Securities Guarantee Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor Trust Preferred
Securities Guarantee Trustee and delivered to the Guarantor.
(c) The Trust Preferred Securities Guarantee Trustee shall hold
office until a Successor Trust Preferred Securities Guarantee Trustee shall have
been appointed or until its removal or resignation. The Trust Preferred
Securities Guarantee Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by the Trust
Preferred Securities Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Trust Preferred Securities
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Trust Preferred Securities
Guarantee Trustee and delivered to the Guarantor and the resigning Trust
Preferred Securities Guarantee Trustee.
(d) If no Successor Trust Preferred Securities Guarantee Trustee
shall have been appointed and accepted appointment as provided in this Section
4.2 within 60 days after delivery of an instrument of removal or resignation,
the Trust Preferred Securities Guarantee Trustee resigning or being removed may
petition any court of competent jurisdiction for appointment of a Successor
Trust Preferred Securities Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Trust Preferred Securities Guarantee Trustee.
(e) No Trust Preferred Securities Guarantee Trustee shall be liable
for the acts or omissions to act of any Successor Trust Preferred Securities
Guarantee Trustee.
(f) Upon termination of this Trust Preferred Securities Guarantee or
removal or resignation of the Trust Preferred Securities Guarantee Trustee
pursuant to this Section 4.2, the Guarantor shall pay to the Trust Preferred
Securities Guarantee Trustee all amounts due to the Trust Preferred Securities
Guarantee Trustee for fees and reimbursement of expenses which have accrued to
the date of such termination, removal or resignation.
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ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
---------
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense, right of set-
off or counterclaim that the Issuer may have or assert. The Guarantor's
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 5.2 Waiver of Notice and Demand
---------------------------
The Guarantor hereby waives notice of acceptance of this Trust
Preferred Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against 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 5.3 Obligations Not Affected
------------------------
The obligations, covenants, agreements and duties of the Guarantor
under this Trust Preferred Securities Guarantee shall be absolute and
unconditional and shall remain in full force and effect until the entire
liquidation amount of all Trust Preferred Securities shall have been paid and
such obligations, covenants, agreements and duties shall in no way be affected
or impaired by reason of the happening from time to time of any event, including
without limitation the following, whether or not with notice to, or the consent
of, the Guarantor:
(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 Trust Preferred 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, Redemption Price, Liquidation Distribution (as
defined in the Declaration) or any other sums payable under the terms of the
Trust Preferred Securities or the extension of time for the performance of any
other obligation under, arising out of, or in connection with, the Trust
Preferred Securities (other than an extension of time for payment of
Distributions, Redemption Price, Liquidation Distribution or other sum payable
that results from the extension of any interest payment period on the Debentures
permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Property Trustee or the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred
14
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on the Property Trustee or the Holders pursuant to the terms of the Trust
Preferred Securities, or any action on the part of the Issuer granting
indulgence or extension of any kind;
(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 Trust
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred;
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor with respect to the
Guarantee Payments 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. No set-off, counterclaim, reduction or diminution of any obligation,
or any defense of any kind or nature that the Guarantor has or may have against
any Holder shall be available hereunder to the Guarantor against such Holder to
reduce the payments to it under this Trust Preferred Securities Guarantee.
SECTION 5.4 Rights of Holders
-----------------
(a) The Holders of a Majority in liquidation amount of the Trust
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trust Preferred
Securities Guarantee Trustee in respect of this Trust Preferred Securities
Guarantee or exercising any trust or power conferred upon the Trust Preferred
Securities Guarantee Trustee under this Trust Preferred Securities Guarantee.
(b) If the Trust Preferred Securities Guarantee Trustee fails to
enforce such Trust Preferred Securities Guarantee, any Holder may institute a
legal proceeding directly against the Guarantor to enforce the Trust Preferred
Securities Guarantee Trustee's rights under this Trust Preferred Securities
Guarantee, without first instituting a legal proceeding against the Issuer, the
Trust Preferred Securities Guarantee Trustee or any other Person or entity.
Notwithstanding the foregoing, if the Guarantor has failed to make a Guarantee
Payment, a Holder may directly institute a proceeding against the Guarantor for
enforcement of the Trust Preferred Securities Guarantee for such payment to the
Holder of the principal of or interest on the Debentures on or after the
respective due dates specified in the Debentures, and the amount of the payment
will be based on the Holder's pro rata share of the amount due and owing on all
of the Trust Preferred Securities. The Guarantor
15
<PAGE>
waives any right or remedy to require that any action be brought first against
the Issuer or any other Person or entity before proceeding directly against the
Guarantor.
SECTION 5.5 Guarantee of Payment
--------------------
This Trust Preferred Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 5.6 Subrogation
-----------
The Guarantor shall be subrogated to all (if any) rights of the
Holders against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Trust Preferred Securities Guarantee; provided, however,
-------- -------
that the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any right that it may
acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Trust Preferred
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Trust Preferred Securities Guarantee. 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 5.7 Independent Obligations
-----------------------
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Trust Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Trust
Preferred Securities Guarantee notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
--------------------------
So long as any Trust Preferred Securities remain outstanding, if there
shall have occurred a Guarantee Event of Default or an Event of Default, or an
event that, with the giving of notice or the lapse of time, or both, would be a
Guarantee Event of Default or an Event of Default then, prior to the payment of
all accrued interest on outstanding Debentures , the Guarantor shall not (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 capital
stock (which includes common and preferred stock), (ii) make any payment of
principal, interest or premium, if any, on or repay or repurchase or redeem any
debt securities of the Guarantor (including any Other Debentures) that rank pari
passu with or junior in right of payment to the Debentures or (iii) make any
guarantee
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payments with respect to any guarantee by the Guarantor of the debt securities
of any Subsidiary (including under Other Guarantees) if such guarantee ranks
equal or junior in right of payment to the Debentures (other than (a) dividends
or distributions in shares of, or options, warrants, rights to subscribe for or
purchase shares of, common stock of the Guarantor, (b) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
or the issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under the Trust
Preferred Securities Guarantee, (d) the purchase of fractional shares resulting
from a reclassification of the Guarantor's capital stock, (e) the purchase of
fractional interests in shares of the Guarantor's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged and (f) purchases of common stock related to the issuance
of common stock or rights under any of the Guarantor's benefit plans for its
directors, officers or employees or any of the Guarantor's dividend reinvestment
plans).
SECTION 6.2 Ranking
-------
This Trust Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to Senior and Subordinated Indebtedness (as defined in the Indenture),
to the same extent and in the same manner that the Debentures are subordinated
to Senior and Subordinated Indebtedness pursuant to the Indenture, (ii) pari
passu with the Debentures, the Other Debentures, the Common Securities
Guarantee, any Other Guarantee and any Other Common Securities Guarantee, (iii)
senior to the Guarantor's capital stock and (iv) effectively subordinated to the
liabilities and obligations of the Guarantor's subsidiaries. If an Event of
Default has occurred and is continuing, the rights of the holders of the Common
Securities to receive any payments shall be subordinated to the rights of the
Holders to receive Guarantee Payments hereunder.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
-----------
This Trust Preferred Securities Guarantee shall terminate (i) upon
full payment of the Redemption Price (as defined in the Declaration) of all
Trust Preferred Securities or (ii) upon liquidation of the Issuer and the full
payment of the amounts payable in accordance with the Declaration or the
distribution of the Debentures to the Holders and the holders of Common
Securities. Notwithstanding the foregoing, this Trust Preferred Securities
Guarantee 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 under the
Trust Preferred Securities or under this Trust Preferred Securities Guarantee.
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ARTICLE VII
INDEMNIFICATION
SECTION 8.1 Exculpation
-----------
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith in accordance with this Trust Preferred
Securities Guarantee and in a manner that such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by this Trust Preferred Securities Guarantee or by law, except that an
Indemnified Person shall be liable for any such loss, damage or claim incurred
by reason of such Indemnified Person's negligence or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
SECTION 8.2 Indemnification
---------------
The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 8.2 shall survive the termination of this
Trust Preferred Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
----------------------
All guarantees and agreements contained in this Trust Preferred
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
then outstanding.
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SECTION 9.2 Amendments
----------
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Trust Preferred Securities Guarantee may only be amended with the prior approval
of the Holders of a Majority in liquidation amount of the Trust Preferred
Securities (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined). The provisions of the Declaration
with respect to consents to amendments thereof (whether at a meeting or
otherwise) shall apply to the giving of such approval.
Prior to executing any amendment hereto, the Trust Preferred
Securities Guarantee Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Trust Preferred Securities Guarantee Agreement.
SECTION 9.3 Notices
-------
All notices provided for in this Trust Preferred Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Issuer, in care of the Trustee at the Issuer's
mailing address set forth below (or such other address as the Issuer may give
notice of to the Holders and the Trust Preferred Securities Guarantee Trustee):
East West Bancorp
c/o East West Bancorp, Inc.
415 Huntington Drive
San Marino, California 91108
Attention: Julia Gouw
Administrative Trustee
Telecopy: (626) 799-2799
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(b) If given to the Trust Preferred Securities Guarantee Trustee, at
the Trust Preferred Securities Guarantee Trustee's mailing address set forth
below (or such other address as the Trust Preferred Securities Guarantee Trustee
may give notice of to the Holders, the Guarantor and the Issuer):
____________________
____________________
__________
____________________
Attention: Corporate Trust Trustee Administration
Telecopy: ___________
(c) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders and the Trust Preferred Securities Guarantee Trustee):
East West Bancorp, Inc.
415 Huntington Drive
San Marino, California 91108
Attention: Julia Gouw
Chief Financial Officer
Telecopy: (626) 799-2799
(d) If given to any Holder, at the address set forth on the books
and records of the Issuer.
All such notices 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 document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 Benefit
-------
This Trust Preferred Securities Guarantee is solely for the benefit of
the Holders and, subject to Section 3.1(a), is not separately transferable from
the Trust Preferred Securities.
SECTION 9.5 Governing Law
-------------
THIS TRUST PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
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THIS TRUST PREFERRED SECURITIES GUARANTEE is executed as of the day
and year first above written.
EAST WEST BANCORP, INC., as Guarantor
By: _________________________________________
Julia Gouw
Chief Financial Officer
__________________________, as Trust Preferred
Securities Guarantee Trustee
By: _________________________________________
Name:
Title:
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Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
East West Bancorp, Inc. on Form S-3 of our report dated February 2, 1999,
appearing in the Annual Report on Form 10-K of East West Bancorp, Inc. for the
year ended December 31, 1998 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
Los Angeles, California
February 3, 2000
