<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 27, 1997
REGISTRATION NO. 333-
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
GBC BANCORP
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------------
<TABLE>
<S> <C>
CALIFORNIA 95-3586596
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
800 WEST SIXTH STREET
LOS ANGELES, CALIFORNIA 90017
(213) 972-4104
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
PETER LOWE
CHIEF FINANCIAL OFFICER
800 WEST SIXTH STREET
LOS ANGELES, CALIFORNIA 90017
(213) 972-4104
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------
COPIES TO:
<TABLE>
<S> <C>
STANLEY F. FARRAR WILLIAM T. QUICKSILVER
SULLIVAN & CROMWELL MANATT, PHELPS & PHILLIPS, LLP
444 SOUTH FLOWER STREET 11355 W. OLYMPIC BOULEVARD
LOS ANGELES, CALIFORNIA 90071 LOS ANGELES, CALIFORNIA 90064
(213) 955-8000 (310) 312-4000
</TABLE>
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: After the
effective date of this Registration Statement, as determined by market
conditions.
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, please check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement 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
<TABLE>
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<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED PER UNIT OFFERING PRICE FEE
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<S> <C> <C> <C>
% Subordinated Notes due 2007................ 100% $40,000,000 $12,121.21
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</TABLE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE OR UNTIL THE REGISTRANT
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.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to completion, dated June 27, 1997
PROSPECTUS
dated , 1997
$40,000,000
[LOGO OF GBC BANCORP]
% SUBORDINATED NOTES DUE 2007
Interest on the % Subordinated Notes due 2007 (the "Notes") issued by GBC
Bancorp (the "Company") is payable on the 15th day of October, January, April
and July of each year, commencing October 15, 1997. The Notes mature on ,
2007. The Notes are not redeemable prior to , 2002. Thereafter, the
Notes are redeemable, in whole or in part, at the option of the Company at the
redemption prices set forth in this Prospectus plus accrued interest to the
date of redemption. The Notes have no sinking fund. The Notes will be issued
only in fully registered book-entry form in denominations of $1,000 and any
integral multiple thereof. The Notes will be unsecured general obligations of
the Company and will be pari passu with the Company's existing subordinated
debt and subordinated to all future Senior Indebtedness (as defined herein) of
the Company. There is no limitation in the Indenture on the Company's ability
to create or incur Senior Indebtedness or indebtedness ranking on a parity with
the Notes. Application has been made to list the Notes on the New York Stock
Exchange. Although the Underwriters have each indicated an intention to make a
market in the Notes, no Underwriter is obligated to make a market in the Notes
and any market making may be discontinued at any time at the sole discretion of
such Underwriter. See "Description of Notes" and "Underwriting."
Payment of principal of the Notes may be accelerated only in the case of
certain events relating to the bankruptcy, insolvency or reorganization of the
Company. There is no right to acceleration in the case of a default in the
payment of interest on the Notes or in the performance of any other covenant of
the Company. See "Description of Notes."
SEE "RISK FACTORS" BEGINNING ON PAGE 9 FOR A DISCUSSION OF CERTAIN FACTORS THAT
SHOULD BE CONSIDERED BY PROSPECTIVE INVESTORS.
THE NOTES ARE NOT SAVINGS ACCOUNTS OR DEPOSITS AND ARE NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION, ANY OTHER GOVERNMENTAL AGENCY OR
OTHERWISE.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
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<S> <C> <C> <C>
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC DISCOUNT(1) COMPANY(2)
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Per Note....................... 100.00% % %
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Total.......................... $ $ $
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</TABLE>
(1) The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended. See "Underwriting."
(2) Before deducting expenses payable by the Company estimated at $ .
The Notes are being offered by the Underwriters named herein subject to prior
sale and when, as and if delivered to and accepted by the Underwriters. It is
expected that the Notes will be ready for delivery in book-entry form only
through the facilities of The Depository Trust Company (the "Depositary") in
New York, on or about , 1997 against payment therefor in immediately
available funds.
PIPER JAFFRAY INC.
KEEFE, BRUYETTE & WOODS, INC.
OPPENHEIMER & CO., INC.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and, in accordance therewith, files
reports, proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy statements and
other information can be inspected and copied at the Public Reference Room of
the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
following Regional Offices of the Commission: Chicago Regional Office,
Citicorp Center, Suite 1400, 500 West Madison Street, Chicago, Illinois 60661;
and New York Regional Office, Seven World Trade Center, 13th Floor, New York,
New York 10048. Copies of such material can also be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, at prescribed rates. The Commission maintains a website that
contains reports, proxy and information statements and other information
regarding registrants that file electronically. The address of the website is
http://www.sec.gov. The Company's common stock is traded on the Nasdaq
National Market. Reports and other information concerning the Company can be
inspected at the National Association of Securities Dealers, Inc., 1735 K
Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all exhibits and amendments thereto, called the
"Registration Statement") under the Securities Act of 1933, as amended, with
respect to the securities covered by this Prospectus. This Prospectus does not
contain all of the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules and
regulations of the Commission. For further information, reference is made to
the Registration Statement. Copies of the Registration Statement, including
any amendments and exhibits thereto, can be inspected and copied at the
offices of the Commission as set forth above. Statements contained in this
Prospectus as to the contents of any contract or any other document are not
necessarily complete, and in each instance reference is made to the copy of
such contract or other document filed as an exhibit to the Registration
Statement, each such statement being qualified in all respects by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of the Company which have been previously filed with
the Commission are hereby incorporated by reference in this Prospectus:
(a) the Company's Annual Report on Form 10-K for the Fiscal Year Ended
December 31, 1996;
(b) the Company's Quarterly Report on Form 10-Q for the Quarter Ended March
31, 1997; and
(c) the Company's Proxy Statement dated March 24, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering hereunder shall be deemed to be incorporated by
reference into this Prospectus and to be a part hereof from the date of filing
of such documents. Any statement contained herein or in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained
herein or in any other subsequently filed document which also is or is deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the oral or written request of any such
person, a copy of all documents which are incorporated by reference in this
Prospectus, other than exhibits to such documents (unless such exhibits are
specifically incorporated by reference in such documents). Requests for such
copies should be directed to Amy Lin, GBC Bancorp, 800 West Sixth Street, Los
Angeles, California 90017, telephone number (213) 972-4268.
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE NOTES OFFERED
HEREBY. SUCH TRANSACTIONS MAY INCLUDE STABILIZING, THE PURCHASE OF SECURITIES
TO COVER SYNDICATE SHORT POSITIONS AND THE IMPOSITION OF PENALTY BIDS. FOR A
DESCRIPTION OF THESE ACTIVITIES, SEE "UNDERWRITING."
2
<PAGE>
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SUMMARY
The following summary is qualified in its entirety by the more detailed
information and consolidated financial information appearing elsewhere in this
Prospectus or incorporated herein by reference. Unless the context clearly
suggests otherwise, and except as described under the caption "Description of
Notes," references to the Company include the Company and its subsidiaries. In
addition to the historical information contained herein, certain statements in
this Prospectus constitute "forward-looking statements" under the Private
Securities Litigation Reform Act of 1995 (the "Reform Act") which involve
risks and uncertainties. The Company's actual results may differ significantly
from those discussed herein. Factors that might cause such a difference
include, but are not limited to, those discussed under the caption "Risk
Factors" as well as those discussed elsewhere in this Prospectus or in
documents incorporated by reference herein. See "Risk Factors--Forward-Looking
Statements."
THE COMPANY
GBC Bancorp (the "Company") is a bank holding company based in Los Angeles,
California, which operates through its principal subsidiary, General Bank (the
"Bank"), a California state-chartered commercial bank. The Bank serves
primarily small to medium-sized businesses and high net worth individuals
through fifteen branch offices located in the greater Los Angeles, San Diego
and Silicon Valley areas of California. The primary emphasis of the Bank is on
commercial and real estate lending, real estate construction lending and to a
lesser extent, residential mortgage lending. Substantially all of the Bank's
funding is comprised of retail and commercial deposits generated within its
market areas. At March 31, 1997, the Company had consolidated assets of $1.4
billion, deposits of $1.2 billion and stockholders' equity of $119.3 million.
The Bank has focused on servicing the Asian community, primarily persons of
Taiwanese and Chinese descent. Consistent with this strategy, the Bank
emphasizes building long-term relationships with its customers and providing
specialized products and services for these markets. Generally the Bank's
customers have a need for both commercial and residential real estate loans to
finance their businesses and homes. In addition, many of the Bank's customers
have operations both in the U.S. and in their home countries and, therefore,
require ongoing trade financing and other international banking services to
conduct business between the two locations. The Bank's specialized services
for its customers include an International Banking Division which provides
expertise on trade-related banking matters, a Small Business Administration
("SBA") department which makes SBA guaranteed loans to assist smaller
businesses and a High Technology Division that services venture-backed, early
stage, emerging growth companies in the high technology market. In concert
with the High Technology Division, the Company established GBC Venture
Capital, Inc. in 1996 to invest in technology ventures, thereby providing a
full range of financing services to its technology customers.
The Bank's funding strategy focuses on servicing its high net worth
customers and their businesses through its fifteen branch offices. Given the
nature of its customers, a significant amount of its funding is in the form of
certificates of deposit of $100,000 or more, nearly all of which mature in one
year or less. At December 31, 1996, approximately half of the funds
represented by such certificates of deposit were maintained by the Bank for
three years or more. The Company believes its success in retaining such funds
is a result of its customers' strong ties to the Bank and their desire for
personal service.
The Company expects to continue its growth by expanding its core business
and by leveraging its product competencies and its experience in dealing with
niche customer markets. The principal components of the Company's strategy are
to:
. Grow core customer base: As a leading lending institution for the
Taiwanese and Chinese communities in California, the Company believes
that it can maintain its existing business with this core customer base
and build its customer base among the growing Taiwanese and Chinese
populations of California.
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3
<PAGE>
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. Continue geographic expansion: The Company plans to explore other
geographic regions with a high concentration of persons of Taiwanese and
Chinese descent and where there is need for trade-related international
banking. The Company believes that the elimination of many barriers to
interstate branching should enable it to expand more efficiently to
other such markets.
. Further develop core product competencies: Through services provided to
its core customer base, the Company has developed expertise in providing
construction lending, commercial and real estate lending, trade-related
international banking and lending to technology companies. The Company
believes that it can continue to market such products to customers
outside of its core customer base. For example, a substantial amount of
the Company's construction loans as of March 31, 1997, were to non-
Taiwanese or Chinese customers.
. Enter new customer markets: Within California, the Company believes
there are growing concentrations of other ethnic groups whose members
have similar characteristics to those of the Company's core customer
base, such as high net worth, as well as similar needs, such as trade-
related international banking needs, a need for real estate lending and
a desire to conduct business in their native language. The Company
believes that it has the experience and product expertise to serve new
customer markets.
The Company is a California corporation with its principal executive offices
at 800 West Sixth Street, Los Angeles, California 90017, and its telephone
number is (213) 972-4104.
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4
<PAGE>
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THE OFFERING
<TABLE>
<C> <S>
Notes offered.................... $40,000,000 principal amount of %
Subordinated Notes due 2007.
Denominations.................... $1,000 and integral multiples thereof.
Maturity......................... , 2007
Interest payment dates........... Interest on the Notes is payable quarterly
commencing October 15, 1997 and on the 15th
day of each January, April, July and
October thereafter. The first interest
payment will represent interest from the
date of issuance of the Notes through
October 14, 1997.
Sinking fund..................... None.
Optional redemption.............. The Notes may not be redeemed prior to
, 2002. The Company may elect to redeem
the Notes, in whole or in part, upon not
less than 30 nor more than 60 days' prior
written notice, at any time on or after
, 2002 and prior to , 2003 at
102% of the principal amount thereof, on or
after , 2003 and prior to ,
2004 at 101% of the principal amount
thereof and on or after , 2004, at
100% of the principal amount thereof, in
each case plus accrued interest to the date
of redemption. See "Description of Notes--
Redemption at Option of the Company."
Covenants........................ The indenture under which the Notes will be
issued (the "Indenture"), among other
things, restricts the ability of the
Company under certain circumstances to pay
cash dividends or to make other capital
distributions. See "Description of Notes--
Restriction on Dividends and Other
Distributions." The Indenture does not
limit the ability of the Company or its
subsidiaries to incur additional
indebtedness.
Limited rights of acceleration... Payment of principal of the Notes may be
accelerated only in case of certain events
involving the bankruptcy, insolvency or
reorganization of the Company which
constitute an Acceleration Event (as
defined). There is no right of acceleration
in the case of a default in the payment of
principal of or interest on the Notes or
the performance of any other covenant of
the Company in the Indenture. See
"Description of Notes--Acceleration
Events."
Subordination.................... The Notes will be unsecured general
obligations of the Company and will be
subordinated to all existing and future
Senior Indebtedness (as defined) of the
Company in the manner and to the extent
described herein. As of March 31, 1997, the
Company had no outstanding Senior
Indebtedness, and had $15 million of
outstanding subordinated debentures ranking
pari passu with the Notes. There is no
limitation in the Indenture on the
Company's ability to create or incur Senior
Indebtedness or indebtedness ranking on a
parity with the Notes. See "Description of
Notes--Subordination."
</TABLE>
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5
<PAGE>
<TABLE>
<C> <S>
Use of proceeds.................. The net proceeds of this offering will be
used for general corporate purposes, which
may include repayment of the Company's
$15 million of outstanding subordinated
debentures, repurchases by the Company of
its common stock and possible future
acquisitions. The Notes are expected to be
treated as Tier 2 capital for regulatory
purposes. As Tier 2 capital, the Notes are
expected to strengthen further the capital
structure of the Company. See "Use of
Proceeds."
Listing.......................... Application has been made to list the Notes
on the New York Stock Exchange.
Trustee.......................... BNY Western Trust Company.
</TABLE>
6
<PAGE>
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SUMMARY CONSOLIDATED FINANCIAL INFORMATION
The following summary consolidated financial information of the Company and
its subsidiaries as of and for the years ended December 31, 1996, 1995, 1994,
1993 and 1992 has been derived from the Company's audited consolidated
financial statements. The following summary consolidated financial information
for the three months ended March 31, 1997 and 1996 has been derived from the
Company's unaudited consolidated quarterly financial statements which, in the
opinion of management, include all adjustments (consisting of normal recurring
adjustments) considered necessary for a fair presentation. The summary
consolidated financial information should be read in conjunction with the
Company's audited consolidated financial statements and related notes
incorporated herein by reference. The consolidated financial information for
the three months ended March 31, 1997 is not necessarily indicative of the
operating results to be expected for the entire year.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
---------------------- --------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
---------- ---------- ---------- ---------- ---------- --------- ---------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF INCOME
DATA:
Interest income......... $ 25,734 $ 23,284 $ 97,641 $ 85,126 $ 72,782 $ 65,159 $ 65,731
Interest expense........ 11,050 10,666 43,661 37,418 28,889 24,997 28,441
---------- ---------- ---------- ---------- ---------- --------- ---------
Net interest income..... 14,684 12,618 53,980 47,708 43,893 40,162 37,290
Provision for credit
losses................. 1,000 1,500 4,500 18,570 16,194 9,300 3,830
---------- ---------- ---------- ---------- ---------- --------- ---------
Net interest income
after provision for
credit losses.......... 13,684 11,118 49,480 29,138 27,699 30,862 33,460
Non-interest income..... 1,524 1,832 6,073 6,042 5,936 8,286 4,420
Non-interest expense.... 6,790 6,588 27,337 26,104 24,310 22,012 18,283
---------- ---------- ---------- ---------- ---------- --------- ---------
Income before income
taxes.................. 8,418 6,362 28,216 9,076 9,325 17,136 19,597
Provision for income
taxes.................. 2,674 2,053 9,179 1,427 1,796 5,196 6,585
---------- ---------- ---------- ---------- ---------- --------- ---------
Net income.............. $ 5,744 $ 4,309 $ 19,037 $ 7,649 $ 7,529 $ 11,940 $ 13,012
========== ========== ========== ========== ========== ========= =========
Earnings per common
share:
Net income............. $ 0.82 $ 0.62 $ 2.67 $ 1.14 $ 1.12 $ 1.76 $ 1.94
Average common shares
outstanding............ 6,983,000 6,997,000 7,135,000 6,729,000 6,693,000 6,774,000 6,707,000
SELECTED OPERATING
RATIOS AND OTHER DATA:
Return on average
assets(1).............. 1.73% 1.38% 1.46% 0.70% 0.76% 1.32% 1.59%
Return on average common
stockholders'
equity(1).............. 19.55 17.06 17.93 8.13 8.34 14.47 18.25
Net interest
margin(1)(2)........... 4.67 4.25 4.36 4.59 4.74 4.74 4.86
Net charge-offs to
average loans and
leases(1).............. 1.33 1.59 0.96 5.10 1.01 1.00 0.48
Efficiency Ratio (3).... 41.90 45.60 45.50 48.60 48.80 45.40 43.80
Ratio of earnings to
fixed charges(4):
Excluding interest on
deposits.............. 9.42x 5.64x 6.38x 2.37x 2.44x 3.16x 4.91x
Including interest on
deposits.............. 1.68x 1.52x 1.57x 1.17x 1.24x 1.53x 1.61x
BALANCE SHEET DATA:
Assets.................. $1,353,577 $1,365,719 $1,352,115 $1,204,506 $1,081,602 $ 957,260 $ 861,252
Loans and leases, net... 592,158 464,994 582,507 451,891 474,276 489,394 435,880
Securities(5)........... 553,720 662,429 532,095 540,694 440,511 310,979 336,139
Deposits................ 1,199,920 1,208,763 1,201,513 1,046,200 934,020 790,575 697,020
Subordinated debt....... 15,000 15,000 15,000 15,000 15,000 15,000 15,000
Stockholders' equity.... 119,260 101,266 116,636 99,477 87,683 86,438 76,209
Book value per common
share.................. 17.57 15.12 17.24 14.89 13.17 13.00 11.51
</TABLE>
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7
<PAGE>
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<TABLE>
<CAPTION>
THREE MONTHS
ENDED MARCH 31, YEAR ENDED DECEMBER 31,
---------------- -------------------------------------------
1997 1996 1996 1995 1994 1993 1992
------- ------- ------- ------- ------- ------- -------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
SELECTED ASSET QUALITY
DATA:
Loans 90 days or more
past due and still
accruing............... $ 5,109 $ 9 $ 6,779 $ 9 $ 999 $ 4,059 $ 87
Non-accrual loans....... 9,096 27,539 11,719 43,712 46,672 22,033 15,965
Restructured loans(6)... 22,240 20,103 23,125 10,151 20,865 11,898 --
------- ------- ------- ------- ------- ------- -------
Total non-performing
loans.................. 36,445 47,651 41,623 53,872 68,536 37,990 16,052
Other real estate owned
("OREO"), net.......... 15,866 10,452 12,988 7,686 5,051 15,541 14,713
------- ------- ------- ------- ------- ------- -------
Total non-performing
assets................. $52,311 $58,103 $54,611 $61,558 $73,587 $53,531 $30,765
======= ======= ======= ======= ======= ======= =======
SELECTED FINANCIAL
CONDITION RATIOS:
Non-accrual loans to
loans and leases, net.. 1.54% 5.92% 2.01% 9.67% 9.84% 4.50% 3.66%
Non-performing assets to
total assets........... 3.86 4.25 4.04 5.11 6.80 5.59 3.57
Non-performing assets to
loans and leases, net
and OREO, net.......... 8.60 12.22 9.17 13.39 15.35 10.60 6.83
Allowance for credit
losses to total loans
and leases............. 2.49 3.37 2.69 3.53 4.60 2.37 1.68
Allowance for credit
losses to non-accrual
loans.................. 167.17 59.21 138.31 38.15 49.33 54.36 47.00
Allowance for credit
losses to non-
performing loans....... 41.72 34.22 38.94 30.95 33.60 31.53 46.74
Regulatory capital
ratios:
Tier 1 risk-based
capital............... 12.51 12.77 11.97 13.83 13.21 11.93 11.77
Total risk-based
capital............... 14.23 14.40 13.69 15.51 15.34 14.44 14.81
Leverage ratio......... 8.98 8.00 8.74 8.27 8.69 8.96 8.67
</TABLE>
- --------
(1) Annualized for the three-month periods ended March 31, 1997 and 1996.
(2) Tax-exempt interest income is not adjusted to a fully taxable equivalent
basis.
(3) Non-interest expense divided by the sum of net interest income plus non-
interest income.
(4) For purposes of computing the ratio on earnings to fixed charges, earnings
represents income before income taxes, extraordinary items and fixed
charges. Fixed charges represents interest expense, and net rental
expense. The portion of rents applicable to interest has been deemed
immaterial and is not included in fixed charges.
(5) Includes securities available for sale and securities held to maturity.
(6) A loan is categorized as restructured if the original interest rate on
such loan, the repayment terms, or both, are modified due to a
deterioration in the financial condition of the borrower. Restructured
loans which are non-accrual loans are not included in the balance of
restructured loans. The weighted average yield of the restructured loans
(on accrual status) as of March 31, 1997, was 10.23%.
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8
<PAGE>
RISK FACTORS
Prospective investors should consider, among other things, the following
factors in connection with a decision to purchase the Notes.
SOURCE OF PAYMENTS TO HOLDERS OF NOTES
As a holding company without significant assets other than its equity
interest in the Bank, the Company's ability to pay the principal of and
interest on the Notes depends primarily upon the cash dividends it receives
from the Bank. The Notes mature on , 2007, and there is no sinking fund
or other mandatory provision for earlier retirement. Dividend payments from
the Bank are subject to regulatory limitations, generally based on current and
retained earnings, imposed by the California Financial Code. Payment of
dividends is also subject to regulatory restrictions if such dividends would
impair the capital of the Bank. No assurance can be given that the Bank will
be able to pay dividends in the future in amounts sufficient to pay principal
and interest on the Notes. Substantially all of the consolidated assets of the
Company are held by the Bank, and, in the event of liquidation of both the
Company and the Bank, creditors of the Bank, including depositors, would have
first claim to such assets before holders of the Notes. At December 31, 1996,
the Bank had outstanding indebtedness and other liabilities, including
deposits, of approximately $1.2 billion.
ECONOMIC CONDITIONS AND GEOGRAPHIC CONCENTRATION
The Company's operations are located in California and concentrated
primarily in Southern California. As a result of the geographic concentration,
the Company's results depend largely upon economic conditions in this area. A
deterioration in economic conditions in the Company's market areas,
particularly in the real estate industry, could have a material adverse impact
on the quality of the Company's loan portfolio and the demand for its products
and services, and accordingly, its results of operations.
CREDIT QUALITY
A significant source of risk for the Company arises from the possibility
that losses will be sustained because borrowers, guarantors and related
parties may fail to perform in accordance with the terms of their loans. The
Company has adopted underwriting and credit monitoring procedures and credit
policies, including the establishment and review of the allowance for credit
losses, that management believes are appropriate to minimize this risk by
assessing the likelihood of nonperformance, tracking loan performance and
diversifying the Company's credit portfolio. Such policies and procedures,
however, may not prevent unexpected losses that could materially adversely
affect the Company's results of operations. Because a high percentage of the
Company's credit portfolio is secured by real estate, a diminution in value of
the real estate market could adversely affect the Company's results of
operations.
DEPENDENCE ON KEY PERSONNEL
The Company's success depends substantially on certain members of its senior
management, in particular Li-Pei Wu, Chairman, President and Chief Executive
Officer of the Bank. Mr. Wu serves as Chairman, President and CEO pursuant to
an Employment Agreement which contains a seven year term that commenced on
January 1, 1992 and ends September 9, 1998. Thereafter, the agreement may be
renewed at Mr. Wu's option for a successive 12-month period. There would
likely be a difficult transition period if the services of Mr. Wu were lost to
the Company. There is no assurance that the Company will be able to retain its
current key personnel or attract additional qualified key persons as needed.
INTEREST RATES
Banking companies' earnings depend largely on the relationship between the
cost of funds, primarily deposits, and the yield on earning assets. This
relationship, known as the interest rate spread, is subject to
9
<PAGE>
fluctuation and is affected by economic and competitive factors which
influence interest rates, the volume and mix of interest-earning assets and
interest-bearing liabilities, and the level of non-performing assets. The
Company is subject to interest rate risk to the degree that its interest
bearing liabilities reprice or mature more slowly or more rapidly or on a
different basis than its interest earning assets. Given the Company's current
volume and mix of interest-bearing liabilities and interest earning assets,
the Company's interest rate spread could be expected to increase during times
of rising interest rates and, conversely, to decline during times of falling
interest rates. Although the Company believes its current level of interest
rate sensitivity is reasonable, declines in interest rates may have an adverse
effect on the Company's results of operations.
COMPETITION
The banking and financial services business in California generally, and in
the Bank's market areas specifically, is highly competitive. The increasingly
competitive environment is a result primarily of changes in regulation,
changes in technology and product delivery systems, and the accelerating pace
of consolidation among financial services providers. The Bank competes for
loans, deposits and customers for financial services with other commercial
banks, savings and loan associations, securities and brokerage companies,
mortgage companies, insurance companies, finance companies, money market
funds, credit unions, and other nonbank financial service providers. The
Bank's profitability is directly impacted by its ability to competitively
price loans and accept deposits in relation to its competitors' abilities to
provide the same or similar services. Many of these competitors are much
larger in total assets and capitalization, have greater access to capital
markets and offer a broader array of financial services than the Bank. There
can be no assurance that the Bank will be able to compete effectively in its
markets, and the results of operations of the Company could be adversely
affected if circumstances affecting the nature or level of competition change.
LIMITED RIGHT OF ACCELERATION OF NOTES
Payment of principal of or interest on the Notes may be accelerated only in
the case of the bankruptcy, insolvency or reorganization of the Company. There
is no right of acceleration in the case of a default in the payment of
principal or interest on the Notes or in the performance of any other covenant
of the Company, or upon a change in control of the Company. There has been and
continues to be merger, acquisition and consolidation activity in the banking
and financial services industry. The Company has from time to time received
inquiries relating to a potential acquisition. The Company hired an investment
banking firm in December 1996 to provide financial advisory and investment
banking services in connection with mergers and acquisitions, including a
potential sale of the Company. Although the Company is not currently in
negotiations with any potential purchaser, there can be no assurance that the
Company will not in the future undergo a change in control through acquisition
or otherwise. See "Description of Notes--Acceleration Events."
LIMITED COVENANTS
The covenants in the Indenture are limited. The covenants do not protect
holders of the Notes in the event of a material adverse change in the
Company's financial condition or results of operations and do not limit the
ability of the Company or any subsidiary to incur additional indebtedness.
Therefore, the provisions of the Indenture should not be considered a
significant factor in evaluating whether the Company will be able to comply
with its obligations under the Notes. See "Description of Notes."
SUBORDINATION OF NOTES
The payment of principal of and interest on the Notes is unsecured and is
subordinated in right of payment to all Senior Indebtedness of the Company, as
defined in the Indenture. As a result, in the event of the dissolution,
liquidation or reorganization of the Company, the holders of Notes would not
receive payment until the holders of Senior Indebtedness were fully satisfied.
As of March 31, 1997, the Company had no outstanding Senior Indebtedness and
had $15 million of outstanding subordinated debentures ranking pari passu with
the Notes.
10
<PAGE>
There is no limitation in the Indenture on the Company's ability to create or
incur Senior Indebtedness or indebtedness ranking on a parity with the Notes.
In addition, because substantially all of the consolidated assets of the
Company are held by the Bank, the Notes are structurally subordinated to the
liabilities of the Bank, which at March 31, 1997 were approximately $1.2
billion. See "--Source of Payments to Holders of Notes" and "Description of
Notes--Subordination."
ABSENCE OF EXISTING PUBLIC MARKET; MARKET PRICES
There is no existing market for the Notes. Application has been made to list
the Notes on the New York Stock Exchange, but there can be no assurance that an
active and liquid trading market will develop or that a continued listing will
be available. Although the Underwriters have each indicated an intention to
make a market in the Notes, none of the Underwriters is obligated to make a
market in the Notes and any market making may be discontinued at any time at
the sole discretion of such Underwriter. If the Notes are traded after their
original issuance, they may trade at a discount to their principal amount.
REGULATION
The Company, as a bank holding company, is subject to extensive regulation by
the Board of Governors of the Federal Reserve System. This regulation limits
the manner in which the Company conducts its businesses and obtains financing
and is designed primarily to protect depositors and not to benefit holders of
securities of financial institutions. The Bank is subject to extensive
regulation and supervision by the California Commissioner of Financial
Institutions, and the Federal Deposit Insurance Corporation (the "FDIC"). The
Company is subject to periodic examinations by the bank regulatory authorities.
As a result of the FDIC's examination of the Bank in 1994, the Bank entered
into a Memorandum of Understanding ("MOU") with the FDIC, which was revised in
1995. In April, 1996, the FDIC terminated the MOU based upon the results of a
safety and soundness examination. There can be no assurance that the FDIC will
not require the Bank to enter into another memorandum of understanding or take
other supervisory actions with respect to the Bank in the future. The banking
industry is subject to rapidly changing laws and regulations, as well as
changing political conditions. There can be no assurance that implementation of
and changes in laws and regulations affecting banking will not adversely affect
the Company, and therefore its ability to meet the debt service requirements on
the Notes.
FORWARD-LOOKING STATEMENTS
Certain statements contained in this Prospectus, including, without
limitation, statements containing the words "believes," "intends," "expects"
and words of similar import, constitute, "forward-looking statements" within
the meaning of the Reform Act. Such forward-looking statements involve known
and unknown risks, uncertainties and other factors that may cause the actual
results, performance or achievements of the Company to be materially different
from any future results, performance or achievements expressed or implied by
such forward-looking statements. Such factors include, among others, the
following: general economics and business conditions in those areas in which
the Company operates; demographic changes; competition; fluctuations in
interest rates; changes in business strategy or development plans; changes in
governmental regulation; credit quality; and other factors referenced in this
Prospectus or in documents incorporated by reference herein, including, without
limitation, under the captions "Summary," and "Risk Factors." Given these
uncertainties, prospective investors are cautioned not to place undue reliance
on such forward-looking statements. The Company disclaims any obligation to
update any such factors or to publicly announce the results of any revisions to
any of the forward-looking statements contained herein to reflect future events
or developments.
11
<PAGE>
USE OF PROCEEDS
The net proceeds to the Company from the sale of the Notes offered hereby
(after deducting the underwriting discount and the estimated expenses of the
offering) are estimated to be $ . The Company intends to use a
portion of the net proceeds for general corporate purposes, which may include
the repayment of the Company's $15 million of outstanding subordinated
debentures, repurchases of the Company's common stock and possible future
acquisitions. The Company's outstanding subordinated debentures have a stated
maturity of September 1, 2000 and bear interest at a rate of 10.52%. Although
the Company has no contractual right to prepay the subordinated debentures,
the Company is currently negotiating prepayment with the holder of such
debentures. Any such prepayment would require a prepayment premium which would
be paid with a portion of the net proceeds. Pending their ultimate
application, the net proceeds may be loaned to the Bank or invested in short
term investment grade financial instruments.
The Notes are expected to be treated as Tier 2 capital for regulatory
purposes. As Tier 2 capital, the Notes will help to strengthen further the
capital structure of the Company.
CAPITALIZATION
The following table sets forth the consolidated capitalization of the
Company and its subsidiaries at March 31, 1997, and as adjusted to give effect
to the sale of the $40,000,000 principal amount of Notes offered hereby and
the application of the estimated net proceeds therefrom. At March 31, 1997,
the Company had other funding liabilities consisting of deposits of $1.2
billion. This table should be read in conjunction with the consolidated
financial statements of the Company incorporated herein by reference.
<TABLE>
<CAPTION>
MARCH 31, 1997
------------------------
ACTUAL AS ADJUSTED(1)
-------- --------------
(IN THOUSANDS)
<S> <C> <C>
Borrowings:
Subordinated debt(2)................................ $ 15,000 $ 15,000
Notes offered hereby................................ 0 40,000
-------- --------
Total borrowings.................................. 15,000 55,000
-------- --------
Stockholders' equity:
Common Stock, no par or stated value, 20,000,000
shares authorized;
6,786,589 shares outstanding(3).................... 47,729 47,729
Securities valuation allowance, net of tax.......... (2,108) (2,108)
Retained earnings................................... 73,646 73,646
Foreign currency translation adjustments............ (7) (7)
-------- --------
Total stockholders' equity........................ 119,260 119,260
-------- --------
Total capitalization............................ $134,260 $174,260
======== ========
</TABLE>
- --------
(1) If the Company is successful in negotiating the prepayment of the
outstanding subordinated debt, total borrowings and total capitalization
as of March 31, 1997, as adjusted to give effect to the sale of the Notes
and such prepayment, would be $40,000,000 and $159,260,000, respectively
(without giving effect to any premium payable in connection with such
repayment). See "Use of Proceeds."
(2) The principal of the subordinated debt is payable in four installments of
$3,750,000 each on September 1 of 1997, 1998, 1999 and 2000.
(3) Does not include 642,960 shares of common stock issuable upon exercise of
outstanding employee stock options issued under the Company's 1988 stock
option plan, 308,500 shares of common stock issuable upon exercise of
outstanding stock options issued under the Company's contingency stock
option plan and 444,860 shares reserved for future grant under the
Company's 1988 stock option plan.
12
<PAGE>
MANAGEMENT
The following table sets forth certain information about the executive
officers of the Company and the Bank, and the directors of the Company.
EXECUTIVE OFFICERS
<TABLE>
<CAPTION>
AGE AT EXECUTIVE
DECEMBER 31, OFFICER
NAME 1996 SINCE POSITION/BACKGROUND
---- ------------ --------- -------------------
<C> <C> <C> <S>
Li-Pei Wu.......... 62 1982 President and Chief Executive
Officer of the Company and the
Bank since May 1982, Chairman of
the Board of the Company and the
Bank since 1984.
Peter Wu, Ph.D.(1). 48 1979 Chief Operating Officer of the Bank
since 1995, Executive Vice
President of the Company and
Secretary of the Company and the
Bank since 1979.
Peter Lowe......... 55 1994 Executive Vice President and Chief
Financial Officer of the Company
and the Bank since 1994; prior
thereto, Executive Vice President
and Chief Financial Officer of
Manufacturers Bank from 1990 to
1993.
Eddie Chang........ 41 1995 Senior Vice President and Manager
of the Real Estate Department
since January 1996. From July 1995
to January 1996 Manager of the
Real Estate Department. From July
1994 to July 1995 self-employed.
From 1992 to July 1994, Senior
Vice President and Manager of the
Real Estate Department.
Gloria Chen........ 54 1997 Senior Vice President and
Relationship Manager in the
Corporate Lending Department since
May 1997; prior thereto, Senior
Vice President and Manager of the
International Department at
Preferred Bank from 1992 to 1997.
Sue Lai............ 44 1997 Senior Vice President of the
Corporate Lending Department since
April 1997, Manager of the
Corporate Lending Department since
1994, in various capacities with
the Bank since 1991.
Johnny Lee......... 34 1997 Senior Vice President and Regional
Manager of the Northern California
Region since April 1997, in
various positions with the Bank
since 1990.
Domenic Massei..... 52 1989 Senior Vice President of Operations
Administration of the Bank since
1989; prior thereto, Executive
Vice President and Chief
Administrative Officer of
Transnational Bank from 1984 to
1988.
Richard Voake...... 56 1992 Senior Vice President and Credit
Administrator of the Bank since
1994, Vice President and Manager
of Corporate Credit Examination
from 1992 to 1994.
Thomas Wong, Jr.... 47 1997 Senior Vice President and Special
Assistant to the Chief Executive
Officer since April 1997; prior
thereto, Senior Vice President and
head of International Banking and
Cash Management sales at Whitney
National Bank from 1993 to 1996.
Carl Maier......... 56 1993 Vice President and Controller of
the Bank since July 1993. From
October 1991 to July 1993 self-
employed.
</TABLE>
13
<PAGE>
DIRECTORS
<TABLE>
<CAPTION>
AGE AT
DECEMBER 31, DIRECTOR
NAME 1996 SINCE POSITION/BACKGROUND
---- ------------ -------- -------------------
<C> <C> <C> <S>
Eric W. Chang 50 1983 General Partner of Ultrapure
(aka Eric W. John). Separation Technology, New Mexico,
from 1980 to present and General
Manager of Ocean Seven Corp. from
1975 to present.
Helen Y. Chen....... 54 1986 Vice President of Fullong
Enterprise Corp. from 1974 to
present.
Thomas C. T. Chiu... 49 1983 Medical doctor.
Chuang-I Lin, Ph.D.. 56 1983 Chairman and President of Myriad
Capital, Inc., Monterey Park, CA,
from 1980 to present.
Ko-Yen Lin.......... 53 1986 President of T. K. Lin Investment
Co., Calabasas, CA, from 1977 to
present.
Ting Y. Liu, Ph.D... 60 1981 Chairman of General Link Inc.,
Chatsworth, CA from 1994 to
present and Chairman of Phoenix
Hotel Group, Inc. from 1984 to
present.
John C. Wang(2)..... 34 1989 President of Pacific Coast Realty
Services, Inc. from 1991 to
present, Managing Director of
South Bay Capital Corporation,
Long Beach, CA from 1990 to
present, and Vice President of The
Wang Partnership from 1987 to
present.
Kenneth C. Wang(2).. 35 1991 Executive Vice President of Kenjohn
Trading from 1993 to present and
Executive Vice President of The
Wang Partnership from 1986 to
present.
Chien-Te Wu(1)...... 35 1994 President from August 1993 to
present, and Executive Vice
President from September 1990 to
July 1993, of Tone Yee Investments
& Developments, Rancho Cucamonga,
CA.
Julian Wu, Ph.D(1).. 55 1981 General Partner of West Union
Investment Co., Torrance, CA, from
1977 to present.
Li-Pei Wu........... 62 1982 See "-- Executive Officers".
Peter Wu, Ph.D.(1).. 48 1981 See "-- Executive Officers".
Ping C. Wu(1)....... 51 1981 President of President Global
Corp., Buena Park, CA, from 1975
to present.
Walter Wu........... 51 1981 President of Wenix International
Corp., Los Angeles, CA, from 1984
to present.
Chin-Liang Yen...... 54 1983 President of San Yang Enterprises
Corp. from 1986 to present.
</TABLE>
- --------
(1) Peter Wu, Ph.D., Ping C. Wu and Chien-Te Wu are brothers and are first
cousins to Julian Wu, Ph.D.
(2) John C. Wang and Kenneth C. Wang are brothers.
14
<PAGE>
DESCRIPTION OF NOTES
The Notes are to be issued under an Indenture (the "Indenture"), dated as of
, 1997, between the Company and BNY Western Trust Company, as
trustee (the "Trustee"). The Notes are not savings accounts or deposits of the
Bank and are not insured by the FDIC, any other governmental agency or
otherwise.
The following summaries of certain provisions of the Notes and the Indenture
do not purport to be complete and are subject to, and are qualified in their
entirety by reference to, the provisions of the Indenture (including the
definition of certain terms in the Indenture). The form of the Indenture and
the Notes have been filed with the Commission as an exhibit to the
Registration Statement of which this Prospectus is a part. Wherever particular
provisions or definitions are referred to, such provisions and definitions are
incorporated herein by reference, and the statements made herein are qualified
in their entirety by such reference. Unless otherwise indicated, capitalized
terms shall have the meanings ascribed to them in the Indenture. Article and
Section references are to applicable Articles and Sections of the Indenture.
For purposes of the following summary, the term the "Company" excludes the
Company's Subsidiaries unless otherwise provided.
GENERAL
The Notes offered by this Prospectus will be limited to $40,000,000 in
aggregate principal amount. The Notes will be issued in registered form only,
without coupons, in denominations of $1,000 and any integral multiple thereof.
Interest on the Notes will accrue from the date of original issuance and will
be payable on the 15th day of October, January, April and July of each year,
commencing October 15, 1997, at the rate per annum stated on the cover page of
this Prospectus. Interest will be payable to the person in whose name the Note
is registered at the close of business on the business day next preceding such
Interest Payment Date. Notwithstanding the above, in the event that the Notes
are no longer in book-entry only form, the record date for such payment shall
be the first day of the month in which such payment is made. (Sections 301 and
302) The Notes will mature on , 2007, unless redeemed earlier at the
option of the Company. See "Redemption at Option of the Company."
The Notes will not be secured by the assets of the Company or any of its
Subsidiaries or otherwise and will not have the benefit of a sinking fund for
the retirement of principal. In addition, the rights of the Company to
participate in any distribution of assets of any Subsidiary, including the
Bank, upon its liquidation or reorganization or otherwise (and thus the
ability of the Holders of the Notes to benefit indirectly from such
distribution) are subject to the prior claims of creditors of that Subsidiary.
Claims on the Company's Subsidiaries by creditors other than the Company may
include substantial obligations with respect to deposit liabilities, federal
funds purchased and securities sold under repurchase agreements and other debt
obligations. There are also limitations on the extent to which the Bank may
pay dividends or make other payments to the Company.
So long as the Company is a reporting company under the Exchange Act, the
Company will furnish to Holders of the Notes annual reports of the Company
containing audited consolidated financial statements and interim reports with
unaudited consolidated financial data on a quarterly basis. If the Company
ceases to be a reporting company under the Exchange Act, the Company will
furnish to Holders of the Notes annual audited consolidated financial
statements and quarterly unaudited consolidated summary income statements and
retained earnings data. (Section 704)
The Indenture does not contain provisions that would provide protection to
Holders against a sudden and dramatic decline in credit quality resulting from
takeovers, recapitalizations or similar restructurings.
REDEMPTION AT OPTION OF THE COMPANY
The Notes may not be redeemed prior to , 2002. The Notes are subject
to redemption at the option of the Company, in whole at any time or in part
from time to time, upon not less than 30 nor more than 60 days' notice,
commencing on , 2002, at the following redemption prices (expressed as a
15
<PAGE>
percentage of the principal amount), plus accrued and unpaid interest to the
date fixed for redemption, if redeemed during the 12-month period beginning
of the year indicated:
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
---- ----------
<S> <C>
2002......................................................... 102%
2003......................................................... 101%
2004 and thereafter.......................................... 100%
</TABLE>
The redemption price will be paid with interest accrued to the date fixed for
redemption (subject to the right of the registered Holder on the Record Date
for an interest payment to receive such interest). If the Company elects to
redeem less than all of the Notes, the Trustee will select which Notes to
redeem using such method as it shall deem fair and appropriate, including the
selection for redemption of a portion of the principal amount of any Note but
not less than $1,000. On and after the redemption date, interest will cease to
accrue on the Notes or portions thereof called for redemption. (Article Eleven)
SUBORDINATION
The Notes are subordinated, in the manner and to the extent hereinafter
described, to the prior payment of all "Senior Indebtedness" of the Company.
Senior Indebtedness of the Company means the principal of, premium, if any, and
interest on (1) all indebtedness for money borrowed (as defined below) of the
Company (including indebtedness for money borrowed of others guaranteed by the
Company) other than the Notes, whether outstanding on the date of the Indenture
or thereafter created, assumed or incurred, (2) any amendments, renewals,
extensions, modifications and refundings of any such indebtedness, unless in
either case in the instrument creating or evidencing any such indebtedness or
pursuant to which it is outstanding it is provided that such indebtedness is
not superior in right of payments to the Notes, and (3) Derivative Obligations
(as defined below).
For the purposes of such definition, "indebtedness for money borrowed" means
(a) any obligation of, or any obligation, contingent or otherwise, guaranteed
by, the Company for the repayment of borrowed money, whether or not evidenced
by bonds, debentures, notes or other written instruments, (b) any deferred
payment obligation of or any such obligation guaranteed by, the Company for the
payment of the purchase price of property, assets or services and (c) any
obligation of or any such obligation guaranteed by, the Company for the payment
of rent or other amounts under a lease of property or assets which obligation
is required to be classified and accounted for as a capitalized lease on the
balance sheet of the Company under generally accepted accounting principles.
Notwithstanding the foregoing, Senior Indebtedness shall not include any
obligation of the Company that constitutes a trade payable or accrued liability
arising in the ordinary course of business.
"Derivative Obligations" are any obligations of the Company to make payment
pursuant to the terms of any securities contracts and foreign currency exchange
contracts, derivative instruments, such as swap agreements (including interest
rate and currency and foreign exchange rate swap agreements), cap agreements,
floor agreements, collar agreements, interest rate agreements, foreign exchange
agreements, options, commodity futures contracts and commodity options
contracts (other than obligations on account of indebtedness for money borrowed
ranking pari passu with or subordinate to the Notes). (Section 101)
Upon a distribution of assets, dissolution, winding up, liquidation or
reorganization of the Company, if an event of default has occurred and is
continuing with respect to any Senior Indebtedness or if an Acceleration Event
shall have occurred and the principal of the Notes has been declared due and
payable and such declaration has not been rescinded or annulled, then in any
such instance all Senior Indebtedness must be paid in full before any payment
of principal or interest on the Notes can be made. (Sections 1202 and 1203)
However, subordination does not prevent the occurrence of an Acceleration Event
or an "Event of Default" (as defined below) under the Indenture.
By reason of the subordination of the Notes, in the event of liquidation of
the Company, the Holders of the Notes will not receive payment until the
holders of Senior Indebtedness have been satisfied. As of March 31, 1997, the
Company had no outstanding Senior Indebtedness and had $15 million of
outstanding subordinated
16
<PAGE>
debentures ranking pari passu with the Notes. There is no limitation in the
Indenture on the Company's creation of Senior Indebtedness or indebtedness
ranking on a parity with the Notes.
DENOMINATIONS, REGISTRATION AND TRANSFER
The Notes will be represented by a global certificate registered in the name
of the Depositary or its nominee ("Global Note"). Beneficial interests in the
Notes will be shown on, and transfers thereof will be effected only through,
records maintained by the Depositary. Except as described below, Notes in
certificated form will not be issued in exchange for the global certificate.
Unless and until the Global Note is exchanged in whole or in part for the
individual Notes represented thereby, it may not be transferred except as a
whole by the Depositary for such Global Note to a nominee of such Depositary
or by a nominee of such Depositary to such Depositary or another nominee of
such Depositary or by the Depositary or any nominee to a successor Depositary
or any nominee of such successor.
The Global Note shall be exchangeable for Notes registered in the names of
persons other than the Depositary or its nominee only if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as a
depositary for such Global Note and no successor depositary shall have been
appointed, or if at any time the Depositary ceases to be a clearing agency
registered under the Securities Exchange Act, at a time when the Depositary is
required to be so registered to act as such depositary or (ii) the Company in
its sole discretion determines that such Global Note shall be so exchangeable.
Any Global Note that is exchangeable pursuant to the preceding sentence shall
be exchangeable for definitive certificates registered in such names as the
Depositary shall direct. It is expected that such instructions will be based
upon directions received by the Depositary from its Participants (as defined
below) with respect to ownership of beneficial interests in such Global Note.
In the event that Notes are issued in definitive form, such Notes will be in
denominations of $1,000 and integral multiples thereof and may be transferred
or exchanged at the offices described below.
Payments on Notes represented by a Global Note will be made to the
Depositary, as the depositary for the Notes. In the event Notes are issued in
definitive form, principal and interest will be payable, the transfer of the
Notes will be registrable, and Notes will be exchangeable for Notes of other
denominations of a like aggregate principal amount, at the corporate office of
the Trustee, or at the offices of any paying agent or transfer agent appointed
by the Company, provided that payment of interest may be made at the option of
the Company, the check mailed to the address of the persons entitled thereto
or by wire transfer. In addition, if the Notes are issued in certificated
form, the record dates for payment of interest will be the first day of the
month in which such payment is to be made.
Upon the issuance of the Global Note, and the deposit of such Global Note
with or on behalf of the Depositary, the Depositary for such Global Note or
its nominee will credit, on its book-entry registration and transfer system,
the respective principal amounts of the individual Notes represented by such
Global Note to the accounts of persons that have accounts with such Depositary
("Participants"). Ownership of beneficial interests in the Global Note will be
limited to Participants or persons that may hold interests through
Participants. Ownership of beneficial interests in the Global Note will be
shown on, and the transfer of that ownership will be effected only through,
records maintained by the applicable Depositary or its nominee (with respect
to interests of Participants) and the records of Participants (with respect to
interests of persons who hold through Participants). The laws of some states
require that certain purchasers of securities take physical delivery of such
securities in definitive form. Such limits and such laws may impair the
ability to transfer beneficial interest in the Global Note.
So long as the Depositary for the Global Note, or its nominee, is the
registered owner of such Global Note such Depositary or such nominee, as the
case may be, will be considered the sole owner or holder of the Notes
represented by such Global Note for all purposes under the Indenture. Except
as provided below, owners of beneficial interests in a Global Note will not be
entitled to have any of the individual Notes represented by such Global Note
registered in their names, will not receive or be entitled to receive physical
delivery of any such Notes in definitive form and will not be considered the
owners or holders thereof under the Indenture.
17
<PAGE>
Payments of principal of and interest on individual Notes represented by a
Global Note registered in the name of the Depositary or its nominee will be
made to the Depositary or its nominee, as the case may be, as the registered
owner of the Global Note. None of the Company, the Trustee, any Paying Agent,
or the Securities Registrar for such Notes will have any responsibility or
liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of the Global Note representing such
Notes or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
The Company expects that the Depositary or its nominee, upon receipt of any
payment of principal or interest in respect of a permanent Global Note
representing the Notes, immediately will credit Participants' accounts with
payments in amounts proportionate to their respective beneficial interest in
the principal amount of the Global Note as shown on the records of such
Depositary or its nominee. The Company also expects that payments by
Participants to owners of beneficial interests in such Global Note held
through such Participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts
of customers in bearer form or registered in "street name." Such payments will
be the responsibility of such Participants.
If the Depositary is at any time unwilling, unable or ineligible to continue
as depositary and a successor depositary is not appointed by the Company
within 90 days, the Company will issue individual Notes in exchange for the
Global Note. In addition, the Company may at any time and in its sole
discretion, determine not to have the Note represented by a Global Note and,
in such event, will issue individual Notes in exchange for the Global Note.
Further, if the Company so specifies with respect to the Notes, an owner of a
beneficial interest in a Global Note representing Notes may, on terms
acceptable to the Company, the Trustee and the Depositary for such Global
Note, receive individual Notes in exchange for such beneficial interests. In
any such instance, an owner of a beneficial interest in a Global Note will be
entitled to physical delivery of individual Notes equal in principal amount to
such beneficial interest and to have such Notes registered in its name.
Individual Notes so issued will be issued in denominations, unless otherwise
specified by the Company, of $1,000 and integral multiples thereof.
The Depositary is a limited purpose trust company organized under the New
York Banking Law, a "banking organization" within the meaning of the New York
Banking Law, 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 Exchange
Act. The Depositary holds securities that its Participants deposit with the
Depositary. The Depositary also facilitates the settlement among participants
of securities transactions, such as transfers and pledges, in deposited
securities through electronic computerized book-entry changes in Participants'
accounts, thereby eliminating the need for physical movement of securities
certificates. "Direct Participants" include securities brokers and dealers,
banks, trust companies, clearing corporations and certain other organizations.
The Depositary is owned by a number of its Direct Participants and by the New
York Stock Exchange, Inc., the American Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc. Access to the Depositary system is
also available to others such as securities brokers and dealers, banks and
trust companies that clear through or maintain custodial relationships with
Direct Participants, either directly or indirectly ("Indirect Participants").
The rules applicable to the Depositary and its Participants are on file with
the Commission.
Purchases of Notes within the Depositary system must be made by or through
Direct Participants, which will receive a credit for the Notes on the
Depositary's records. The ownership interest of each actual purchaser of each
Note ("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from the Depositary of their purchases, but Beneficial Owners are expected to
receive written confirmations providing details of the transactions, as well
as periodic statements of their holdings, from the Direct or Indirect
Participants through which the Beneficial Owners purchased Notes. Transfers of
ownership interests in the Notes are to be accomplished by entries made on the
books of Participants acting on behalf of Beneficial owners. Beneficial Owners
will not receive certificates representing their ownership interests in the
Notes except in the event that use of the book-entry system for the Notes is
discontinued.
18
<PAGE>
The Depositary has no knowledge of the actual Beneficial Owners of the
Notes, the Depositary's records reflect only the identity of the Direct
Participants to whose accounts such Notes are credited, which may or may not
be the Beneficial Owners. The Participants will remain responsible for keeping
account of their holdings on behalf of their customers.
Conveyance of notices and other communications by the Depositary to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners and the voting
rights of Direct Participants, Indirect Participants and Beneficial Owners
will be governed by arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to time.
Redemption notices will be sent to Cede & Co. as the registered holder of
the Notes. If less than all of the Notes are being redeemed, the Depositary
will determine by lot or pro rata the amount of the Notes of each Direct
Participant to be redeemed.
Interest payments on the Notes will be made by the Trustee to the
Depositary. The Depositary's practice is to credit Direct Participants'
accounts on the relevant payment date in accordance with their respective
holdings shown on the Depositary's records unless the Depositary has reason to
believe that it will not receive payments on such payment date. Payments by
Participants to Beneficial Owners will be governed by standing instructions
and customary practices and will be the responsibility of such Participant and
not of the Depositary, the Trustee or the Company, subject to statutory or
regulatory requirements as may be in effect from time to time. Payment of
Distributions to the Depositary is the responsibility of the Trustee,
disbursement of such payments to Direct Participants is the responsibility of
the Depositary, and disbursements of such payments to the Beneficial Owners is
the responsibility of Direct and Indirect Participants.
The Depositary may discontinue providing its services as securities
depositary with respect to any of the Notes at any time by giving reasonable
notice to the Trustee and the Company. In the event that a successor
securities depositary is not obtained, definitive Note certificates
representing such Notes are required to be printed and delivered. The Company,
at its option, may decide to discontinue use of the system of book-entry
transfers through the Depositary (or a successor depositary). In any such
event, definitive certificates for such Notes will be printed and delivered.
The information in this section concerning the Depositary and the
Depositary's book-entry system has been obtained from sources that the Company
believes to be accurate, but the Company assumes no responsibility for the
accuracy thereof. The Company has no responsibility for the performance by the
Depositary or its Participants of their respective obligations as described
herein or under the rules and procedures governing their respective
operations.
RESTRICTIONS ON DIVIDENDS AND OTHER DISTRIBUTIONS
The Indenture provides that the Company cannot pay cash dividends or make
any other distribution on, or purchase, redeem or acquire its capital stock,
except that the Company may (1) declare and pay a dividend in capital stock of
the Company and (2) declare and pay dividends, purchase, redeem or otherwise
acquire for value its capital stock or make other distributions in cash or
property other than capital stock of the Company if the amount of such
dividend, purchase or distribution, together with the amount of all previous
such dividends, purchases, redemptions and distributions of capital stock
after December 31, 1996, would not exceed in the aggregate the sum of
(a) $38 million, plus (b) 100% of the Company's consolidated net income (or
minus 100% of the Company's consolidated net loss, as the case may be), based
upon audited consolidated financial statements, plus (c) 100% of the net
proceeds received by the Company on account of any capital stock issued by the
Company (other than to a subsidiary of the Company) after December 31, 1996.
(Section 1008)
CONSOLIDATION, MERGER OR TRANSFER
The Indenture provides that the Company may not consolidate with, merge
with, or transfer all or substantially all of its assets to another entity
(other than a wholly-owned subsidiary, where the Company is the
19
<PAGE>
surviving entity) unless such other entity assumes the Company's obligations
under the Indenture and unless, after giving effect thereto, no event shall
have occurred and be continuing which, after notice or lapse of time, would
become a Event of Default, each insured institution controlled by the
surviving corporation shall be in compliance with applicable minimum capital
requirements and certain other conditions are met. (Section 801)
ACCELERATION EVENTS
The Indenture defines Acceleration Events as certain events involving the
bankruptcy, insolvency, or reorganization of the Company. An Event of Default
is defined in the Indenture as: (a) any Acceleration Event; (b) failure to pay
any interest on any Note when due, continued for 15 days; (c) failure to pay
principal of any Note at Maturity; and (d) failure to perform any other
covenant or warranty of the Company in the Indenture, continued for 30 days
after written notice as provided in the Indenture.
If an Acceleration Event with respect to the Notes occurs and is continuing,
either the Trustee or the Holder or Holders of at least 25% in aggregate
principal amount of the Notes by notice as provided in the Indenture may
declare the principal amount of all Outstanding Notes to be due and payable
immediately, and upon any such declaration such principal amount shall become
immediately due and payable. At any time after such a declaration of
acceleration with respect to the Notes has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee, and
subject to applicable law and certain other provisions of the Indenture, the
Holder or Holders of a majority in principal amount of the Outstanding Notes,
by written notice to the Company and the Trustee, may, under certain
circumstances, rescind and annul such acceleration.
The Indenture does not provide for any right of acceleration upon an Event
of Default, other than an Event of Default which is also an Acceleration
Event. If an Event of Default with respect to Notes occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights
and the rights of the Holder or Holders of Notes by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any such rights, whether for the specific enforcement of any covenant or
agreement in the Indenture or to enforce any other proper remedy. The
Indenture provides that, subject to the duty of the Trustee during an Event of
Default to act with the required standard of care, the Trustee will be under
no obligation to exercise any of its rights or powers under the Indenture at
the request or direction of any Holder of Holders unless such Holders shall
have offered to the Trustee reasonable indemnity. Subject to such provision
for the indemnification of the Trustee, and subject to applicable law and
certain other provisions of the Indenture, the Holder or Holders of a majority
in aggregate principal amount of the Outstanding Notes will have the right to
direct the time, method and place of any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee,
with respect to the Notes. Any Event of Default with respect to the Notes may
be waived by the Holder or Holders of a majority in aggregate principal amount
of the Notes, except a failure to pay principal or interest with respect to
any Note.
Under the Indenture, the Company is required to furnish to the Trustee
quarterly a statement by certain officers of the Company to the effect that to
the best of their knowledge the Company is not in default in the fulfillment
of any of its obligations under such Indenture or, if there has been such
default, specifying each such default. (Section 1004).
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a default, give to the Holder or Holders of the Notes notice of
such default known to it if uncured; provided that, except in the case of
default in the payment of principal of or interest on any of the Notes, the
Trustee will be protected in withholding such notice if the board of directors
or responsible officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holder or Holders of the
Notes; and, provided further, that such notice shall not be given until 30
days after the occurrence of a default in the performance of the covenants and
warranties of the Company in the Indenture other than for the payment of the
principal of or interest on the Notes. The term "default" for the purpose only
of this provision means the happening of any of the Events of Default
specified in the Indenture, excluding any grace periods and irrespective of
any notice requirements. (Section 602).
20
<PAGE>
The Holder or Holders of a majority in principal amount of the outstanding
Notes will have the right, subject to certain limitations, 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, and to
waive certain defaults. (Sections 512 and 513). The Indenture provides that,
in case an Acceleration Event shall occur and be continuing, the Trustee shall
exercise such of its rights and powers under the 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. (Section 601).
Subject to certain provisions of the Indenture, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any Holder or Holders of the Notes unless they have
offered to the Trustee reasonable security or indemnity against the costs,
expenses, and liabilities which might be incurred by it in compliance with
such request or direction. (Section 603).
MODIFICATION AND WAIVER
With certain limited exceptions which permit modification of the Indenture
by the Company and the Trustee only, the Indenture may be modified by the
Company with the consent of Holders of not less than a majority in aggregate
principal amount of outstanding Notes; provided, however, that no such changes
shall without the consent of the Holder of each Note affected thereby (a)
change the maturity date of the principal of, or the due date of any
installment of interest on, any Note, (b) reduce the principal of, or the rate
of interest on, any Note, (c) change the currency in which any portion of the
principal of, or interest on, any Note is payable, (d) impair the right to
institute suit for the enforcement of any such payment, (e) reduce the above
stated percentage of Holders of the outstanding Notes necessary to modify the
Indenture, or (f) modify the foregoing requirements or reduce the percentage
of outstanding Notes necessary to waive any past default. (Section 902)
The Holders of a majority in aggregate principal amount of outstanding Notes
may waive compliance by the Company with certain restrictive provisions of the
Indenture. (Section 1011)
SATISFACTION AND DISCHARGE OF INDENTURE
The Indenture provides that the Company may terminate its obligations under
the Indenture with respect to all Notes which will become due and payable at
their Stated Maturity within one year or are to be called for redemption
within one year, by delivering to the Trustee, in trust for such purpose,
money, Government Obligations or both which, through the payment of interest
and principal in respect thereof in accordance with their terms, will provide
on the due dates of any payment of principal and interest, or a combination
thereof, money in an amount sufficient to discharge the entire indebtedness of
such Notes. (Section 401)
THE TRUSTEE
BNY Western Trust Company will serve as Trustee under the Indenture and also
as the Note Registrar and Paying Agent. The Indenture contains certain
limitations on the right of the Trustee, should it become a creditor of the
Company, to obtain payment of claims in certain cases or to realize on certain
property received in respect of any such claim as security or otherwise. The
Trustee will generally be permitted to engage in other transactions with the
Company. The Indenture also provides that the Company will indemnify the
Trustee against loss, liability or expense incurred without negligence or bad
faith on the part of the Trustee arising out of or in connection with the
trust under the Indenture. (Sections 607 and 613)
21
<PAGE>
UNDERWRITING
The Underwriters named below have severally agreed, subject to the terms and
conditions of the Purchase Agreement, to purchase from the Company the
respective principal amount of the Notes set forth opposite their names in the
table below:
<TABLE>
<CAPTION>
PRINCIPAL
UNDERWRITER AMOUNT
----------- -----------
<S> <C>
Piper Jaffray Inc............................................. $
Keefe, Bruyette & Woods, Inc..................................
Oppenheimer & Co., Inc........................................
-----------
$40,000,000
===========
</TABLE>
The nature of the obligations of the Underwriters is such that if any of the
Notes are purchased, all of them must be purchased. The Purchase Agreement
provides that the obligations of the Underwriters thereunder are subject to
approval of certain legal matters and to various other conditions.
The Underwriters have advised the Company that they propose to offer the
Notes to the public at the Price to Public and to selected dealers at such
price less a concession of not more than % of the principal amount of the
Notes. The Underwriters may allow, and such dealers may reallow, concessions
not in excess of % of the principal amount of the Notes to certain other
brokers and dealers. After the initial public offering, the Price to Public
and other selling terms may be changed by the Underwriters.
In connection with this offering, the Underwriters may engage in
transactions that stabilize, maintain or otherwise affect the market price of
the Notes. Specifically, the Underwriters may overallot the offering, creating
a syndicate short position. The Underwriters may bid for and purchase in the
open market to cover syndicate short positions. In addition, the Underwriter
may bid for and purchase in the open market to stabilize the price of the
Notes. These activities may stabilize or maintain the market price of the
Notes above independent market levels. The Underwriters are not required to
engage in these activities, and may end these activities at any time.
Application has been made to list the Notes on the New York Stock Exchange.
The Underwriters have indicated an intention to make a market in the Notes as
permitted by applicable laws and regulations. No Underwriter, however, is
obligated to make a market in the Notes, and any such market making may be
discontinued at any time at the sole discretion of such Underwriter. There can
be no assurance that an active trading market for the Notes will develop. If
the Notes are traded after their initial issuance, they may trade at a
discount from their principal amount.
Oppenheimer & Co., Inc. provides ongoing financial advisory and investment
banking services for the Company including in connection with mergers and
acquisitions and related matters. See "Risk Factors--Limited Right of
Acceleration of Notes."
The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended.
22
<PAGE>
LEGAL OPINIONS
The validity of the Notes to be offered hereby will be passed upon for the
Company by Sullivan & Cromwell, Los Angeles, California. Certain legal matters
will be passed upon for the Underwriters by Manatt, Phelps & Phillips, LLP,
Los Angeles, California.
EXPERTS
The consolidated financial statements of GBC Bancorp and subsidiaries as of
December 31, 1996 and 1995, and for each of the years in the three-year period
ended December 31, 1996 have been incorporated by reference herein and in the
Registration Statement in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated herein by reference,
and upon the authority of said firm as experts in accounting and auditing.
23
<PAGE>
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION SHOULD NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR THE UNDERWRITERS. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE
ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY OR
ITS SUBSIDIARIES OR THAT INFORMATION CONTAINED HEREIN IS CURRENT AS OF ANY
TIME SUBSEQUENT TO THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES
OFFERED HEREBY TO ANY PERSON OR IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING THE OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO, OR TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION.
--------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information...................................................... 2
Incorporation of Certain Documents by Reference............................ 2
Summary.................................................................... 3
Summary Consolidated Financial Information................................. 7
Risk Factors............................................................... 9
Use of Proceeds............................................................ 12
Capitalization............................................................. 12
Management................................................................. 13
Description of Notes....................................................... 15
Underwriting............................................................... 22
Legal Opinions............................................................. 23
Experts.................................................................... 23
</TABLE>
$40,000,000
[LOGO OF GBC BANCORP]
% Subordinated Notes
due 2007
-----------------
P R O S P E C T U S
-----------------
Piper Jaffray Inc.
Keefe, Bruyette & Woods, Inc.
Oppenheimer & Co., Inc.
, 1997
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting discounts and
commissions, are estimated as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee................ $ 12,121
NASD Filing Fee.................................................... 4,500
Stock Exchange Listing Fees........................................ 2,500
Transfer Agent and Registrar Fees*................................. 7,500
Legal Fees and Expenses*........................................... 75,000
Accounting Fees and Expenses*...................................... 100,000
Rating Agency Fees................................................. 35,000
Blue Sky Fees and Expenses......................................... 5,000
Printing Expenses*................................................. 25,000
Miscellaneous*..................................................... 33,379
--------
Total............................................................ $300,000
========
</TABLE>
- --------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 317 of the California General Corporation Law (the "Corporation
Law") contains provisions for the indemnification of directors and officers on
terms substantially identical to those contained in the Company's Bylaws. The
Company's Bylaws require the Company to indemnify its officers and directors
to the fullest extent permitted by California law against expenses, judgments,
fines, settlements, and other amounts actually and reasonably incurred in
connection with any proceeding arising by reason of the fact any such person
is or was an officer or director. Pursuant to California law, a corporation
shall have the power to indemnify an officer or director who was or is a party
or is threatened to be made a party in a proceeding by reason of his position
as an officer or director if the officer or director acted in good faith, in
the best interest of the corporation and with such care as an ordinarily
prudent person in a like position would use under the circumstances. To the
extent that a director or officer is successful on the merits in the defense
of certain proceedings, the Company is required to indemnify such party
against expenses actually and reasonably incurred. Otherwise, indemnification
of officers and directors must be authorized by the corporation in each
specific case, after a determination is made by a majority vote of a quorum of
directors not parties to the proceeding, or by independent legal counsel, or
the approval of a majority of the stockholders voting for such approval, or
the court in which the proceeding was or is pending.
Section 204(a)(11) of the Corporation Law provides for the indemnification,
subject to certain limitations, of directors and officers for breach of their
duty to the Company and its stockholders in excess of that expressly permitted
by Section 317 of the Corporation Law. The Company's Articles of
Incorporation, as amended, contain a provision implementing Section
204(a)(11).
In addition, and subject to California law, the Company's Stock Option Plans
(the "Plans") specifically provide that the Company and its subsidiaries shall
pay the expenses incurred by, and satisfy a judgment or fine rendered or
levied against, a present or former director in any action brought by a third
party against such person (whether or not the Company is joined as a party
defendant) to impose a liability or penalty on such person while a director
arising with respect to the Plans or administration thereof or of the Company.
Section 317 of the Corporation Law also provides that a corporation shall
have the power to purchase and maintain insurance on behalf of any agent of
the corporation against any liabilities asserted against or incurred
II-1
<PAGE>
by the agent in such capacity. The Company maintains an officers' and
directors' liability insurance policy insuring the Company's officers and
directors against certain liabilities and expenses incurred by them in their
capacities as such, and insuring the Company under certain circumstances, in
the event that indemnification payments are made by the Company to such
officers and directors.
Reference is made to the form of Underwriting Agreement filed as Exhibit 1.1
to the Registration Statement for Company's and the Underwriter's respective
agreements to indemnify each other and to provide contribution in
circumstances where indemnification is unavailable.
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement.*
4.1 Form of Indenture.
4.2 Form of Notes (included in Exhibit 4.1).
5.1 Opinion of Sullivan & Cromwell as to the validity of the Notes.
12.1 Statement re computation of ratios.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Sullivan & Cromwell (included in Exhibit 5.1).
24.1 Power of Attorney (contained on page II-3).
25.1 Statement of Eligibility and Qualification of Trustee on Form T-1.
</TABLE>
- --------
* To be filed by amendment
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933 (the "Securities
Act"), each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
(and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement 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.
(b) Insofar as indemnification for liabilities under the Securities Act may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions described in Item 15 above, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in a successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of
whether such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of such
issue.
(c) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
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 Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
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.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
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 Los Angeles, California, on the 27th day of June, 1997.
GBC Bancorp
(Registrant)
/s/ Peter Lowe
By: _________________________________
Peter Lowe
Executive Vice President and
Chief Financial Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Li-Pei Wu and Peter Lowe, as his or her true
and lawful attorneys-in-fact and agents, each acting alone, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments,
including post-effective amendments, to this Registration Statement and any
related Rule 462(b) registration statement or amendment thereto, and to file
the same, with all exhibits thereto, and other documents in connection
therewith with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully and to all intents and purposes as he or she
might or could do in person hereby ratifying and confirming all that said
attorneys-in-fact and agents, or his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on June 19, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ Li-Pei Wu President, Chief Executive Officer and
________________________________________ Director
Li-Pei Wu
/s/ Peter Lowe Executive Vice President and
________________________________________ Chief Financial Officer (Chief
Peter Lowe Accounting Officer)
Director
________________________________________
Eric W. Chang
/s/ Helen Chen Director
________________________________________
Helen Chen
/s/ Thomas C.T. Chiu Director
________________________________________
Thomas C.T. Chiu
/s/ Chuang-I Ling Director
________________________________________
Chuang-I Ling
/s/ Ko-Yen Lin Director
________________________________________
Ko-Yen Lin
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ Ting Y. Liu Director
________________________________________
Ting Y. Liu
/s/ John C. Wang Director
________________________________________
John C. Wang
/s/ Kenneth C. Wang Director
________________________________________
Kenneth C. Wang
/s/ Chien-Te Wu Director
________________________________________
Chien-Te Wu
/s/ Julian Wu Director
________________________________________
Julian Wu
/s/ Peter Wu Director
________________________________________
Peter Wu
/s/ Ping C. Wu Director
________________________________________
Ping C. Wu
/s/ Walter Wu Director
________________________________________
Walter Wu
Director
________________________________________
Chin-Liang Yen
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
------- --------------------
<C> <S>
1.1 Form of Underwriting Agreement.*
4.1 Form of Indenture.
4.2 Form of Notes (included in Exhibit 4.1).
5.1 Opinion of Sullivan & Cromwell as to the validity of the Notes.
12.1 Statement re computation of ratios.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Sullivan & Cromwell (included in Exhibit 5.1).
24.1 Power of Attorney (contained on page II-3).
25.1 Statement of Eligibility and Qualification of Trustee on Form T-1.
</TABLE>
- --------
* To be filed by amendment
<PAGE>
EXHIBIT 4.1
- --------------------------------------------------------------------------------
GBC BANCORP
TO
BNY WESTERN TRUST COMPANY,
as Trustee
________________
Indenture
Dated as of____________, 1997
________________
$40,000,000
__ % Subordinated Notes due __________, 2007
- --------------------------------------------------------------------------------
<PAGE>
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- ---------
<S> <C>
(S) 310(a)(1)...................................... 609
(a)(2)...................................... 609
(a)(3)...................................... Not Applicable
(a)(4)...................................... Not Applicable
(b)......................................... 608
......................................... 610
(S) 311(a)......................................... 613
(b)......................................... 613
(S) 312(a)......................................... 701
......................................... 702(a)
(b)......................................... 702(b)
(c)......................................... 702(c)
(S) 313(a)......................................... 703(a)
(a)(4)...................................... 101
......................................... 1004
(b)......................................... 703(a)
(c)......................................... 703(a)
(d)......................................... 703(b)
(S) 314(a)......................................... 704
(b)......................................... Not Applicable
(c)(1)...................................... 102
(c)(2)...................................... 102
(c)(3)...................................... Not Applicable
(d)......................................... Not Applicable
(e)......................................... 102
(S) 315(a)......................................... 601
(b)......................................... 602
(c)......................................... 601
(d)......................................... 601
(e)......................................... 514
(S) 316(a)......................................... 101
(a)(1)(A)................................... 502
................................... 512
(a)(1)(B)................................... 513
(a)(2)...................................... Not Applicable
(b)......................................... 508
(c)......................................... 104(c)
(S) 317(a)(1)...................................... 503
(a)(2)...................................... 504
(b)......................................... 1003
(S) 318(a)......................................... 107
- --------------
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Parties........................................................................... 1
Recitals of the Company........................................................... 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions................................................. 1
-----------
SECTION 102. Compliance Certificates and Opinions........................ 10
------------------------------------
SECTION 103. Form of Documents Delivered to Trustee...................... 10
--------------------------------------
SECTION 104. Acts of Holders; Record Dates............................... 11
-----------------------------
SECTION 105. Notices, Etc., to Trustee and Company....................... 13
-------------------------------------
SECTION 106. Notice to Holders; Waiver................................... 13
-------------------------
SECTION 107. Conflict with Trust Indenture Act........................... 14
---------------------------------
SECTION 108. Effect of Headings and Table of Contents.................... 14
----------------------------------------
SECTION 109. Successors and Assigns...................................... 14
----------------------
SECTION 110. Separability Clause......................................... 14
-------------------
SECTION 111. Benefits of Indenture....................................... 15
---------------------
SECTION 112. Governing Law............................................... 15
-------------
SECTION 113. Legal Holidays.............................................. 15
--------------
SECTION 114. Language of Notices......................................... 15
-------------------
ARTICLE TWO
Note Forms
SECTION 201. Forms Generally............................................. 15
---------------
SECTION 202. Form of Face of Note........................................ 17
--------------------
SECTION 203. Form of Reverse of Note..................................... 19
-----------------------
SECTION 204. Form of Trustee's Certificate of Authentication............. 22
-----------------------------------------------
SECTION 205. Form of Legend for Global Notes............................. 22
-------------------------------
SECTION 206. Notes in Global Form........................................ 22
--------------------
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
ARTICLE THREE
The Notes
<S> <C> <C>
SECTION 301. Title and Terms.......................................... 23
---------------
SECTION 302. Denominations............................................ 24
-------------
SECTION 303. Execution, Authentication, Delivery and Dating........... 24
----------------------------------------------
SECTION 304. Temporary Notes.......................................... 25
---------------
SECTION 305. Registration, Registration of Transfer and Exchange...... 25
---------------------------------------------------
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes.............. 28
-------------------------------------------
SECTION 307. Payment of Interest; Interest Rights Preserved........... 29
----------------------------------------------
SECTION 308. Persons Deemed Owners.................................... 30
---------------------
SECTION 309. Cancellation............................................. 30
------------
SECTION 310. Computation of Interest.................................. 31
-----------------------
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.................. 31
---------------------------------------
SECTION 402. Application of Trust Money............................... 33
--------------------------
ARTICLE FIVE
Remedies
SECTION 501. Events of Default........................................ 33
-----------------
SECTION 502. Acceleration of Maturity; Rescission and Annulment....... 34
--------------------------------------------------
SECTION 503. Collection of Indebtedness and Suits for
----------------------------------------
Enforcement by Trustee................................... 35
----------------------
SECTION 504. Trustee May File Proofs of Claim......................... 36
--------------------------------
SECTION 505. Trustee May Enforce Claims Without Possession of Notes... 36
------------------------------------------------------
SECTION 506. Application of Money Collected........................... 37
------------------------------
SECTION 507. Limitation on Suits...................................... 37
-------------------
SECTION 508. Unconditional Right of Holders to Receive
-----------------------------------------
Principal and Interest................................... 38
----------------------
SECTION 509. Restoration of Rights and Remedies....................... 38
----------------------------------
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 510. Rights and Remedies Cumulative........................... 39
------------------------------
SECTION 511. Delay or Omission Not Waiver............................. 39
----------------------------
SECTION 512. Control by Holders....................................... 39
------------------
SECTION 513. Waiver of Past Defaults.................................. 40
-----------------------
SECTION 514. Undertaking for Costs.................................... 40
---------------------
SECTION 515. Waiver of Stay or Extension Laws......................... 41
--------------------------------
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities...................... 41
-----------------------------------
SECTION 602. Notice of Defaults....................................... 42
------------------
SECTION 603. Certain Rights of Trustee................................ 43
-------------------------
SECTION 604. Not Responsible for Recitals or Issuance of Notes........ 44
-------------------------------------------------
SECTION 605. May Hold Notes........................................... 45
--------------
SECTION 606. Money Held in Trust...................................... 45
-------------------
SECTION 607. Compensation and Reimbursement........................... 45
------------------------------
SECTION 608. Disqualification; Conflicting Interests.................. 46
---------------------------------------
SECTION 609. Corporate Trustee Required; Eligibility.................. 47
---------------------------------------
SECTION 610. Resignation and Removal; Appointment of Successor........ 47
-------------------------------------------------
SECTION 611. Acceptance of Appointment by Successor................... 49
--------------------------------------
SECTION 612. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business................................................. 49
--------
SECTION 613. Preferential Collection of Claims Against Company........ 50
-------------------------------------------------
SECTION 614. Appointment of Authenticating Agent...................... 50
-----------------------------------
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Holders.................................................. 52
-------
</TABLE>
-iii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 702. Preservation of Information; Communications to Holders....... 53
------------------------------------------------------
SECTION 703. Reports by Trustee........................................... 53
------------------
SECTION 704. Reports by Company........................................... 53
------------------
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms......... 54
----------------------------------------------------
SECTION 802. Successor Substituted........................................ 55
---------------------
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders........... 56
--------------------------------------------------
SECTION 902. Supplemental Indentures with Consent of Holders.............. 56
-----------------------------------------------
SECTION 903. Execution of Supplemental Indentures......................... 57
------------------------------------
SECTION 904. Effect of Supplemental Indentures............................ 58
---------------------------------
SECTION 905. Conformity with Trust Indenture Act.......................... 58
-----------------------------------
SECTION 906. Reference in Notes to Supplemental Indentures................ 58
---------------------------------------------
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal and Interest............................ 58
---------------------------------
SECTION 1002. Maintenance of Office or Agency.............................. 58
-------------------------------
SECTION 1003. Money for Note Payments to Be Held in Trust.................. 59
-------------------------------------------
SECTION 1004. Statement by Officers as to Default.......................... 61
-----------------------------------
SECTION 1005. Existence.................................................... 61
---------
</TABLE>
-iv-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 1006. Maintenance of Properties.................................... 61
-------------------------
SECTION 1007. Payment of Taxes and Other Claims............................ 62
---------------------------------
SECTION 1008. Limitation on Restricted Payments............................ 62
---------------------------------
Section 1009. Books and Records............................................ 63
-----------------
Section 1010. Insurance.................................................... 63
---------
SECTION 1011. Waiver of Certain Covenants.................................. 64
---------------------------
ARTICLE ELEVEN
Redemption of Notes
SECTION 1101. Right of Redemption.......................................... 64
-------------------
SECTION 1102. Applicability of Article..................................... 64
------------------------
SECTION 1103. Election to Redeem; Notice to Trustee........................ 64
-------------------------------------
SECTION 1104. Selection by Trustee of Notes to Be Redeemed................. 65
--------------------------------------------
SECTION 1105. Notice of Redemption......................................... 65
--------------------
SECTION 1106. Deposit of Redemption Price.................................. 66
---------------------------
SECTION 1107. Notes Payable on Redemption Date............................. 66
--------------------------------
SECTION 1108. Notes Redeemed in Part....................................... 67
----------------------
ARTICLE TWELVE
Subordination of Notes
SECTION 1201. Notes Subordinate to Senior Indebtedness..................... 67
----------------------------------------
SECTION 1202. Payment Over of Proceeds Upon Dissolution, Etc............... 67
-----------------------------------------------
SECTION 1203. Prior Payment to Senior Indebtedness Upon Acceleration
------------------------------------------------------
of Notes..................................................... 69
--------
SECTION 1204. No Payment When Senior Indebtedness in Default............... 69
----------------------------------------------
SECTION 1205. Payment Permitted If No Default.............................. 70
-------------------------------
SECTION 1206. Subrogation to Rights of Holders of Senior Indebtedness...... 71
-------------------------------------------------------
SECTION 1207. Provisions Solely to Define Relative Rights.................. 71
-------------------------------------------
SECTION 1208. Trustee to Effectuate Subordination.......................... 72
-----------------------------------
</TABLE>
-v-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 1209. No Waiver of Subordination Provisions........................ 72
-------------------------------------
SECTION 1210. Notice to Trustee............................................ 73
-----------------
SECTION 1211. Reliance on Judicial Order or Certificate of
--------------------------------------------
Liquidating Agent............................................ 74
-----------------
SECTION 1212. Trustee Not Fiduciary for Holders of Senior Indebtedness..... 74
--------------------------------------------------------
SECTION 1213. Rights of Trustee as Holder of Senior Indebtedness;
--------------------------------------------------
Preservation of Trustee's Rights............................ 74
---------------------------------
SECTION 1214. Article Applicable to Paying Agents.......................... 75
-----------------------------------
TESTIMONIUM........................................................................ 71
SIGNATURES AND SEALS............................................................... 71
ACKNOWLEDGMENTS.................................................................... 72
</TABLE>
-vi-
<PAGE>
INDENTURE, dated as of _________, 1997, between GBC Bancorp, a
corporation duly organized and existing under the laws of the State of
California (herein called the "Company"), having its principal office at 800
West Sixth Street, Los Angeles, California 90017, and BNY Western Trust Company,
a state banking corporation duly organized and existing under the laws of
California, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its ____%
Subordinated Notes Due ____________, 2007 (herein called the "Notes") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
All things necessary to make the Notes, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, and to make this Indenture a valid agreement
of the Company, in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Notes, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
<PAGE>
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate Notes.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary 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.
-2-
<PAGE>
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the Borough of
Manhattan, the City of New York or Los Angeles, California are authorized or
obligated by law or executive order to close.
"Capital Stock" of any Person means any and all shares, interests,
participations, warrants, rights, options or other equivalents (however
designated) of corporate stock or any other equity interest of such Person.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Chief
Financial Officer or its Secretary, and delivered to the Trustee.
"Consolidated Net Income (Net Loss)" means the amount of net income
(loss) of the Company and its Subsidiaries determined in accordance with
generally accepted accounting principles; provided, however, that there shall
-------- -------
not be included in Consolidated Net Income (1) any net income (loss) of a
Subsidiary for any period during which it was not a Consolidated Subsidiary or
(2) any net income (loss) of businesses, properties or assets acquired or
disposed of (by way of merger, consolidation, purchase, sale or otherwise) by
the Company or any Subsidiary for any period prior to the acquisition thereof or
subsequent to the disposition thereof.
"Corporate Trust Office" means the principal office of the Trustee in
the City of Los Angeles, California or such other location designated from time
to time at which at any particular time its corporate trust business shall be
-3-
<PAGE>
administered, which office on the date hereof is located at 700 S. Flower
Street, Los Angeles, California 90071.
"corporation" means a corporation, association, company, joint-stock
company, limited liability company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means a clearing agency registered under the Exchange Act
that is designated to act as Depositary for the Notes as contemplated by Section
301 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall mean
such successor Depositary.
"Derivative Obligations" means any obligations of the Company to make
payment pursuant to the terms of any securities contracts and foreign currency
exchange contracts, derivative instruments, such as swap agreements (including
interest rate and currency and foreign exchange rate swap agreements), cap
agreements, floor agreements, collar agreements, interest rate agreements,
foreign exchange agreements, options, commodity futures contracts and commodity
options contracts (other than obligations on account of indebtedness for money
borrowed ranking pari passu with or subordinate to the Notes).
"Disqualified Stock" means any Capital Stock of the Company or any
Subsidiary of the Company which, by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable), or otherwise
(including upon the occurrence of an event), matures or is required to be
redeemed (pursuant to a sinking fund obligation or otherwise) or is redeemable
at the option of the holder thereof, in whole or in part (other than a
redemption which is conditioned upon a change of control of the Company), on or
prior to the final Stated Maturity of the Notes.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
-4-
<PAGE>
"General Bank" means General Bank, a California state-chartered bank,
together with its successors.
"Global Note" means a Note that evidences all or part of the Notes and
is authenticated and delivered to, and registered in the name of, the Depositary
for such Notes or a nominee thereof.
"Government Obligations" means direct obligations of the United States
of America, or any Person controlled or supervised by and acting as an agency or
instrumentality of such government, in each case where the payment or payments
thereunder are unconditionally guaranteed as a full faith and credit obligation
by such government and which are not callable or redeemable at the option of the
issuer or issuers thereof, and shall also include a depository receipt issued by
a bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of or other amount
with respect to any such 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 Government Obligation or the specific payment of
interest on or principal of or other amount with respect to the Government
Obligation evidenced by such depository receipt.
"Holder" means a Person in whose name a Note is registered in the Note
Register.
"Indebtedness for money borrowed" means (a) any obligation, contingent
or otherwise, of, or any obligation guaranteed by, the Company for the repayment
of borrowed money, whether or not evidenced by bonds, debentures, notes or other
written instruments, (b) any deferred payment obligation of or any such
obligation guaranteed by, the Company for the payment of the purchase price of
property, assets or services and (c) any obligation of or any such obligation
guaranteed by, the Company for the payment of rent or other amounts under a
lease of property or assets which obligation is required to be classified and
accounted for as a capitalized lease on the balance sheet of the Company under
generally accepted accounting principles.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto
-5-
<PAGE>
entered into pursuant to the applicable provisions hereof, including, for all
purposes of this instrument and any such supplemental indenture, the provisions
of the Trust Indenture Act that are deemed to be a part of and govern this
instrument and any such supplemental indenture, respectively.
"Interest Payment Date" means the Stated Maturity of an instalment of
interest on the Notes.
"Maturity", when used with respect to any Note, means the date on
which the principal of such Note becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 305.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Chief Financial Officer or the Secretary of the Company, and delivered to
the Trustee. One of the officers signing an Officers' Certificate given
pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Notes, means, as of the date
of determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
------
(i) Notes theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Notes; provided that, if such Notes are to be
--------
redeemed, notice of such redemption has been
<PAGE>
duly given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and
(iii) Notes which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in respect
of which there shall have been presented to the Trustee proof satisfactory
to it that such Notes are held by a bona fide purchaser in whose hands such
Notes are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or of 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 Notes which the Trustee knows to be so owned shall be so
disregarded. Notes 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 Notes and that the
pledgee is not the Company or any other obligor upon the Notes or any Affiliate
of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Notes on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
-7-
<PAGE>
"Redemption Date", when used with respect to any Note to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Note to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date means, for so long as all of the Notes are evidenced by a Global Note, the
business day next preceding such Interest Payment Date, and if any Notes are in
definitive registered form, the January 1, April 1, July 1 or October 1 (whether
or not a Business Day), as the case may be, next preceding such Interest Payment
Date.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Senior Indebtedness" means the principal of, premium, if any, and
interest on (1) all Indebtedness for money borrowed of the Company (including
Indebtedness for money borrowed of others guaranteed by the Company) other than
the Notes, whether outstanding on the date of the Indenture or thereafter
created, assumed or incurred, (2) any amendments, renewals, extensions,
modifications and refundings of any such indebtedness, unless in either case in
the instrument creating or evidencing any such indebtedness or pursuant to which
it is outstanding it is provided that such indebtedness is not superior in right
of payments to the Notes, and (3) Derivative Obligations; provided, however,
-------- -------
that Senior Indebtedness shall not be deemed to include (a) trade accounts
payable of the Company, (b) accrued liabilities arising in the ordinary course
of business of the Company and (c) the Company's 10.52%
-8-
<PAGE>
Subordinated Debentures due 2000, issued pursuant to a Debenture Purchase
Agreement dated as of August 31, 1990.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Note or any
instalment of interest thereon, means the date specified in such Note as the
fixed date on which the principal of such Note or such instalment of interest is
due and payable.
"Subsidiary" means, with respect to the Company and its Subsidiaries,
(A)(i) a corporation a majority of whose Capital Stock is at the time, directly
or indirectly, owned (beneficially or of record) by the Company, by one or more
Subsidiaries or by the Company and one or more Subsidiaries or (ii) any other
Person (other than a corporation) in which the Company, one or more Subsidiaries
or the Company and one or more Subsidiaries, directly or indirectly, at the date
of determination thereof has at least majority ownership interest and, either
directly or indirectly, has the power to direct the policies, management and
affairs thereof, economic, financial or otherwise, and (B) that, in accordance
with generally accepted accounting principles, the accounts of which would be
included on a consolidated basis in the Company's financial statements.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
-------- -------
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
-9-
<PAGE>
SECTION 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(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 each such individual, he or
she has made such examination or investigation as is necessary to enable
him or her 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, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
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or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representa tions by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be con solidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him or her the execution thereof.
Where such execution is by a signer acting in a capacity other than his or her
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his or her authority. The fact and date of the execution of
any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 701)
prior to such first solicitation or vote, as the case may be. With regard to
any record date, only the Holders on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership, principal amount and serial numbers of Notes held
by any person and the date of the commencement and of the termination of holding
the same shall be proved by the Note Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the Holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such Note.
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SECTION 105. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and delivered in person, by first-class postage prepaid mail or
overnight air courier guaranteeing next day delivery or by facsimile (with
receipt acknowledged), to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument or at
any other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, or transmitted by
facsimile, if receipt thereof is acknowledged and if the notice thereafter
promptly mailed, to each Holder affected by such event, at its address as it
appears in the Note Register, not later than the latest date (if any), and not
earlier than the earliest date (if any), prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not
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be a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
---------------------------------
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 latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
SECTION 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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SECTION 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness and the Holders of Notes, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
-------------
This Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of California.
SECTION 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Note shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Notes) payment of interest or
principal 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 Interest Payment
Date or Redemption Date, or at the Stated Maturity, provided that no interest
--------
shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
SECTION 114. Language of Notices.
-------------------
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language.
ARTICLE TWO
Note Forms
SECTION 201. Forms Generally.
---------------
The Notes and the Trustee's certificates of authentication shall be in
substantially the forms set forth in this Article, with such appropriate
insertions,
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omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes.
The definitive Notes shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
on which the Notes may be listed, all as determined by the officers of the
Company executing such Notes, as evidenced by their execution of such Notes.
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SECTION 202. Form of Face of Note.
--------------------
GBC Bancorp
__% Subordinated Notes due ________, 2007
No. __________ $________
GBC Bancorp, a corporation duly organized and existing under the laws
of California (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to __________________, or registered assigns, the principal sum
of _____________________ Dollars on ____________, 2007, and to pay interest
thereon from _________, 1997 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, quarterly on the fifteenth
days of January, April, July and October in each year, commencing October 15,
1997, at the rate of ___% per annum, until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Note (or one or more Predecessor Notes)
is registered at the close of business on the Regular Record Date for such
interest, which shall be [If a Global Note, insert--the business day] [If in
definitive registered form, insert--the first day of January, April, July or
October (whether or not a Business Day), as the case may be,] next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Note (or one
or more Predecessor Notes) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Notes not less than 10 days
prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture. The principal of and
interest on the Notes shall be payable (i) in the case of all Notes represented
by one or more Global Notes registered in the name of a Depositary or its
nominee, to such Depositary or such nominee and (ii) in the case of any Notes
issued in definitive registered form, to the persons
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in whose names the Notes are registered at the office or agency of the Company
in Los Angeles, California maintained for such purpose and at any other office
or agency maintained by the Company for such purpose; provided, however, that,
-------- -------
except with respect to a Global Note, at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Note Register.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
GBC BANCORP
By:______________________
Attest:
______________________________
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SECTION 203. Form of Reverse of Note.
-----------------------
This Note is one of a duly authorized issue of Notes of the Company
designated as its __% Subordinated Notes due __________, 2007 (herein called the
"Notes"), limited in aggregate principal amount to $40,000,000, issued and to be
issued under an Indenture, dated as of _____,1997 (herein called the
"Indenture"), between the Company and BNY Western Trust Company, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee, the
holders of Senior Indebtedness and the Holders of the Notes and of the terms
upon which the Notes are, and are to be, authenticated and delivered.
At any time on or after __________, 2002, the Notes are subject to
redemption upon not less than 30 nor more than 60 days' notice at the Redemption
Price specified in the next sentence, together in the case of any such
redemption with accrued interest to the Redemption Date, but interest
instalments whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holders of such Notes, or one or more Predecessor Notes, of
record at the close of business on the relevant Record Dates referred to on the
face hereof, all as provided in the Indenture. If the Notes are redeemed on or
before __________, 2003, the Redemption Price shall be 102% of the principal
amount. If redeemed on of after _______, 2003 and prior to _________, 2004, the
Redemption Price shall be 101% of the principal amount. If redeemed after
________, 2004, the Redemption Price shall be 100% of the principal amount.
In the event of redemption of this Note in part only, a new Note or
Notes for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
The indebtedness evidenced by this Note is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness, and this Note is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Note, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate the subordination so
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provided and (c) appoints the Trustee its attorney-in-fact for any and all such
purposes.
If an Event of Default shall occur and be continuing, the principal
of all the Notes may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Notes at the time Outstanding.
The Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Notes at the time Outstanding,
on behalf of the Holders of all the Notes, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note 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 on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
[If a Global Note, insert--This Global Note shall be exchangeable for
Notes registered in the names of Persons other than the Depositary or its
nominee only if (i) the Depositary notifies the Company that it is unwilling or
unable to continue as the Depositary or if at any time such Depositary ceases to
be a clearing agency registered under the United States Securities Exchange Act
of 1934, at a time when such Depositary is required to be so registered in order
to act as a Depositary, and the Company fails to appoint a successor Depositary
under the Indenture or (ii) the Company executes and delivers to the Trustee a
Company Order that the Global Note shall be so exchangeable. To the extent that
the Global Note is exchangeable pursuant to the preceding sentence, it shall be
exchangeable for
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Notes registered in such names as the Depositary shall direct.
Notwithstanding any other provision herein, the Global Note may not be
transferred except as a whole by the Depositary to a nominee of such Depositary
or by a nominee of such Depositary to such Depositary or another nominee of such
Depositary.]
[If in definitive registered form, insert--As provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
this Note is registrable in the Note Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company in Los Angeles,
California duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Note Registrar duly executed by, the
Holder hereof or his or her attorney duly authorized in writing, and thereupon
one or more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.]
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
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SECTION 204. Form of Trustee's Certificate of Authentication.
-------------------------------- --------------
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Notes referred to in the within-mentioned
Indenture.
BNY Western Trust Company,
as Trustee
Dated: _________________ By: _______________________
Authorized Signatory
SECTION 205. Form of Legend for Global Notes.
-------------------------------
Every Global Note authenticated and delivered hereunder shall bear a
legend in substantially the following form:
This Note is a Global Note within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee
thereof. This Note may not be transferred to, or registered or exchanged
for Notes registered in the name of, any Person other than the Depositary
or a nominee thereof and no such transfer may be registered, except in the
limited circumstances described in the Indenture. Every Note authenticated
and delivered upon registration of transfer of, or in exchange for or in
lieu of, this Note shall be a Global Note subject to the foregoing, except
in such limited circumstances.
SECTION 206. Notes in Global Form.
--------------------
A Note in global form shall represent such of the outstanding Notes as
shall be specified therein and may provide that it shall represent the aggregate
amount of Outstanding Notes from time to time endorsed thereon and that the
aggregate amount of Outstanding Notes represented thereby may from time to time
be reduced to reflect exchanges. Any endorsement of a Note in global form to
reflect the amount, or any increase or decrease in the
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amount, of Outstanding Notes represented thereby shall be made by the Trustee
and in such manner as shall be specified in such Note. Any instructions by the
Company with respect to a Note in global form, after its initial issuance, shall
be in writing but need not comply with Section 102.
ARTICLE THREE
The Notes
SECTION 301. Title and Terms.
---------------
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is limited to $40,000,000, except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 304, 305, 306, 906, or 1108.
The Notes shall be known and designated as the "__% Subordinated Notes
due ___________, 2007" of the Company. Their Stated Maturity shall be
____________, 2007, and they shall bear interest at the rate of ____% per annum,
from the date of issuance or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, as the case may be, payable
quarterly on the fifteenth days of January, April, July and October commencing
October 15, 1997, until the principal thereof is paid or made available for
payment.
The principal of and interest on the Notes shall be payable (i) in the
case of all Notes represented by one or more Global Notes registered in the name
of a Depositary or its nominee, to such Depositary or such nominee and (ii) in
the case of any Notes issued in definitive registered form, to the persons in
whose names the Notes are registered at the office or agency of the Company in
Los Angeles, California maintained for such purpose and at any other office or
agency maintained by the Company for such purpose; provided, however, that,
-------- -------
except with respect to a Global Note, at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Note Register.
The Notes shall be redeemable as provided in Article Eleven.
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The Notes shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Twelve, and shall rank pari passu in all
---- -----
respects with the Company's 10.52% Subordinated Debentures due 2000, issued
pursuant to a Debenture Purchase Agreement dated as of August 31, 1990.
SECTION 302. Denominations.
-------------
The Notes shall be issuable only in registered form without coupons
and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Notes shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary. The signature of any of these officers on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Notes executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Notes; and the Trustee in accordance with such Company
Order shall authenticate and deliver such Notes as in this Indenture provided
and not otherwise.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
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executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder.
SECTION 304. Temporary Notes.
---------------
Pending the preparation of definitive Notes, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Notes which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Notes in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Notes may determine, as evidenced by their execution of such
Notes.
If temporary Notes are issued, the Company will cause definitive Notes
to be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes upon
surrender of the temporary Notes at any office or agency of the Company
designated pursuant to Section 1002, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Notes of authorized denominations. Until so
exchanged the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as definitive Notes.
SECTION 305. Registration, Registration of Transfer and Exchange.
------------------------------------------ --------
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Notes and of transfers of Notes. The Trustee is hereby appointed
"Note Registrar" for the purpose of registering Notes and transfers of Notes as
herein provided.
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Upon surrender for registration of transfer of any Note at an office
or agency of the Company designated pursuant to Section 1002 for such 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 Notes of
any authorized denominations and of a like aggregate principal amount.
At the option of the Holder, Notes (except Global Notes) may be
exchanged for other Notes of any authorized denominations and of a like
aggregate principal amount, upon surrender of the Notes to be exchanged at such
office or agency. Whenever any Notes are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Notes
which the Holder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Note Registrar duly executed, by the Holder
thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Notes, other than exchanges
pursuant to Section 304, 906 or 1108 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Note in definitive registered form during a period beginning
at the opening of business 15 days before the day of the mailing of a notice of
redemption of Notes selected for redemption under Section 1104 and ending at the
close of business on the day of such mailing, or (ii) to register the transfer
of or exchange any Note in definitive registered form so selected for redemption
in whole or in part, except the unredeemed portion of any Note being redeemed in
part.
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The provisions of Clauses (1), (2), (3), (4) and (5) below shall apply
only to Global Notes:
(1) Each Global Note authenticated under this Indenture shall be
registered in the name of the Depositary or a nominee thereof and delivered
to the Depositary or a nominee thereof or custodian therefor, and each such
Global Note shall constitute a single Note for all purposes of this
Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Note in whole or in part may be registered, and no transfer of a Global
Note in whole or in part may be registered, in the name of any Person other
than the Depositary or a nominee thereof unless (A) the Depositary (i) has
notified the Company that it is unwilling or unable to continue as
Depositary and no successor Depositary shall have been appointed, or (ii)
has ceased to be a clearing agency registered under the Exchange Act, or
(B)the Company, in its sole discretion, shall have so determined.
(3) Subject to Clause (2) above, any exchange of a Global Note for
other Notes may be made in whole or in part, and all Notes issued in
exchange for a Global Note or any portion thereof shall be registered in
such names as the Depositary for such Global Note shall direct.
(4) So long as all of the Notes are evidenced by a Global Note, the
Note Registrar and the Trustee shall be entitled to deal with the
Depositary for all purposes of this Indenture (including the payment of
principal and interest on such Global Note and the giving of instructions,
notices and communications hereunder) as the sole holder of such Global
Note.
(5) Every Note authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Note or any portion
thereof, whether pursuant to this Section, Section 304, 306, 906 or 1108 or
otherwise, shall be authenticated and delivered in the form of, and shall
be, a Global Note, unless such Note is registered in the name of a Person
other than the
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Depositary for such Global Note or a nominee thereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes.
-------------------------------------------
If any mutilated Note is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Note
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Note, a new Note of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
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SECTION 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Note which 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 may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Notes (or their respective Predecessor
Notes) 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 Note and the date
of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at his address as it appears in the Note Register, not
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less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Notes (or their respective Predecessor Notes) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes 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.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
SECTION 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Note is registered as the owner of such Note for the
purpose of receiving payment of principal of and (subject to Section 307)
interest on such Note and for all other purposes whatsoever, whether or not such
Note be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
------------
All Notes surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and
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all Notes so delivered shall be promptly cancelled by the Trustee. No Notes
shall be authenticated in lieu of or in exchange for any Notes cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Notes held by the Trustee shall be disposed of as directed by a
Company Order.
Interest on the Notes shall be payable through and excluding any
Interest Payment Date and interest shall be payable through and excluding any
Redemption Date.
SECTION 310. Computation of Interest.
-----------------------
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Notes herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Notes theretofore authenticated and delivered (other than (i)
Notes which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and (ii) Notes for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Notes not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
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(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose fund in the currency in which the Notes are payable or Government
Obligations which through the payment of interest and principal thereof in
accordance with their terms, without consideration of any reinvestment
thereof, will provide not later than the opening of business on the due
dates of any payment of principal and interest with respect thereto, or a
combination thereof, in an amount sufficient to pay and discharge the
entire indebtedness on such Notes not theretofore delivered to the Trustee
for cancellation, for principal and interest to the date of such deposit
(in the case of Notes which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
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SECTION 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
-----------------
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable federal or state bank ruptcy,
insolvency, reorganization or other similar law or (B) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable federal or
state law, or appointing a receiver, liquidator, conservator or other
similar official of the Company or of all or substantially all of its
assets, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 60 consecutive days; or
(2) the commencement by the Company of a volun tary case or
proceeding under any applicable federal or
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state bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect of
the Company in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other similar
law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable federal or
state law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a receiver, liquidator, conservator
or similar official of the Company or of all or substantially all of its
assets or the making by the Company of an assignment for the benefit of
creditors or the taking of corporate action by the Company in furtherance
of any such action.
(3) default in the payment of any interest upon any Note when it
becomes due and payable, and continuance of such default for a period of
15 days; or
(4) default in the payment of the principal of any Note at its
Maturity; or
(5) 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 30 days 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 principal amount of the
Outstanding Notes 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.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default specified in Section 501(1) or Section 501 (2)
(such Events of Default sometimes herein referred to as "Acceleration Events")
occurs and is continuing, then and in every such case the Trustee or the Holders
of not less
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than 25% in principal amount of the Outstanding Notes may declare the principal
of all the Notes and all accrued interest thereon to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal shall become
immediately due and payable.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any Note when
such interest becomes due and payable and such default continues for a
period of 15 days, or
(2) default is made in the payment of the principal of any Note at
the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Notes, the whole amount then due and payable on such Notes for
principal and interest, and, to the extent that payment of such interest shall
be legally enforceable, interest on any overdue principal and on any overdue
interest, at the rate borne by the Notes, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
In the event that the Company fails to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the amount so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the Notes,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights,
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whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial or other proceeding relative to the Company or
any other obligor upon the Notes, the property of the Company or such other
obligor or their creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee
shall be authorized 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 Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Notes.
-------------------------------------------------------
All rights of action and claims under this Indenture or the Notes may
be prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and
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counsel, be for the ratable benefit of the Holders of the Notes in respect of
which such judgment has been recovered.
SECTION 506. Application of Money Collected.
------------------------------
Subject to Article Twelve, any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal or interest, upon presentation of the Notes and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee, including, but
not limited to, amounts due under Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest on the Notes in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Notes for principal and interest, respectively.
SECTION 507. Limitation on Suits.
-------------------
No Holder of any Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the
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costs, expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal and Interest.
----------------------------------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and (subject to Section 307) interest on such Note
on the respective Stated Maturities expressed in such Note (or, in the case of
redemption, on the Redemption Date)and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the
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Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding Notes
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee, provided that
--------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
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This Section 512 shall be in lieu of Section 316(a)(1)(A) of the Trust
Indenture Act, and such Section 316(a)(1)(A) is hereby expressly excluded from
this Indenture, as permitted by the Trust Indenture Act.
SECTION 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Notes may on behalf of the Holders of all the Notes waive any past
default hereunder and its consequences, except a default
(1) in the payment of the principal of or interest on any Note, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
This Section 513 shall be in lieu of Section 316(a)(1)(B) of the Trust
Indenture Act, and such Section 316(a)(1)(B) is hereby expressly excluded from
this Indenture, as permitted by the Trust Indenture Act.
SECTION 514. Undertaking for Costs.
---------------------
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, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, that neither this Section nor the Trust Indenture Act
--------
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company or the Trustee.
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SECTION 515. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
-----------------------------------
(1) Except during the continuance of an Event of Default,
(a) the Trustee undertakes to perform such duties, and only such
duties, as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(b) the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any 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.
(2) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
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(3) 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) this Subsection shall not be construed to limit the effect of
Subsection (1) of this Section;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(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 Holders of a majority in principal amount of the Outstanding Notes,
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Notes, provided
such direction shall not be in conflict with any rule of law or with this
Indenture; and
(d) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if 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.
(4) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder, the
Trustee shall transmit to the Holders of Notes, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, notice of such default
hereunder known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
-------- -------
of the
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principal of or interest on any Note, 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
interest of the Holders of Notes; and provided, further, that in the case of any
-------- -------
default of the character specified in Section 501(5) with respect to Notes, no
such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event of which the Trustee shall have actual notice which is, or after
notice or lapse of time or both would become, a Default or an Event of Default.
SECTION 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely upon and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may rely upon an
Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken,
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suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless and until such
Holders shall have expressly offered to the Trustee and deposited with the
Trustee security or indemnity satisfactory to the Trustee in its sole
discretion against all costs, expenses and liabilities which might be
incurred by the Trustee (including the fees and expenses of its advisors,
consultants and legal counsel) in proceeding to comply with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney provided that no such further
inquiry shall create any additional duties of the Trustee hereunder; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
consultants or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Notes.
-------------------------------------------------
The recitals contained herein and in the Notes, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee
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assumes no responsibility for their correctness and shall have no liability
whatsoever therefore. The Trustee makes no representations or warranties as to
the validity or sufficiency of this Indenture or of the Notes or instruments of
further assurance or any financial statements, amendments thereto or
continuation statements. The Trustee shall not be accountable for the use or
application by the Company of Notes or the proceeds thereof. The Trustee shall
have no duty to ascertain or inquire as to the performance or observance of any
covenants, conditions and agreements aforesaid. The Trustee shall not be
responsible or liable for any loss suffered in connection with any investment of
funds made by it under this Indenture. The permissive right of the Trustee to do
things enumerated hereunder shall not be construed as a duty.
SECTION 605. May Hold Notes.
--------------
The Trustee, any Authenticating Agent, any Paying Agent, any Note
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Notes and, subject to Sections 608
and 613, may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Authenticating Agent, Paying Agent, Note Registrar or
such other agent.
SECTION 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) subject to any written fee agreement, to pay to the Trustee upon
demand, ordinary and necessary compensation for all services rendered by
the Trustee (including fees and costs of consultants, agents and counsel)
hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
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(2) except as otherwise expressly provided herein, to promptly
reimburse the Trustee upon its request for all ordinary and necessary
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the ordinary and
necessary compensation and the expenses and disbursements of its
consultants, agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or intentional misconduct;
and
(3) to indemnify the Trustee for, and to hold it harmless against,
any claims, loss, liability or expense whether the same is litigated or
resolved without litigation incurred without negligence or intentional
misconduct on its part, arising out of or in connection with the acceptance
or administration of this trust, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
To secure the Company's payment obligations in this Section 607, the
Company and the Holders agree that the Trustee shall have a lien prior to the
Securities on all money or property held or collected by the Trustee. Such lien
shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 501(1) or (2) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor statute.
The Trustee's legal counsel does not have any attorney-client
relationship with any securityholder.
SECTION 608. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
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SECTION 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
commercial bank with trust powers or a trust company, which shall have (or, in
the case of a financial institution, commercial bank with trust powers or a
trust company included in a bank holding company system, the related bank
holding company shall have) a combined capital and surplus of at least
$100,000,000, be subject to supervision or examination by a federal or state
authority so long as any Notes are outstanding, be eligible pursuant to the
Trust Indenture Act to act as such and maintain (or, in the case of a financial
institution, commercial bank with trust powers or a trust company included in a
bank holding company system, the related bank holding company or other financial
institution, bank or trust company included in such bank holding company system
shall maintain)an office in the Borough of Manhattan, City of New York. If such
commercial bank or trust company publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611. The
Company has the duty to diligently seek replacement of the Trustee. Failure of
the Company to replace the Trustee may petition in federal or state court to
have a trustee appointed and the Company shall not object to jurisdiction.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may
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petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Notes, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapa bility, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Notes delivered to
the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed
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by the Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Note for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
--------------------------------------
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the cor-
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porate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
SECTION 613. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Notes), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate Notes issued upon
original issue and upon exchange, registration of transfer or partial redemption
or pursuant to Section 306, and Notes so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Notes by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $100,000,000 and
subject to supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said
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supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Note Register. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
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If an appointment is made pursuant to this Section, the Notes may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Notes described in the within-mentioned Indenture.
Dated: ___________________ BNY Western Trust Company,
As Trustee
By: _________________________,
As Authenticating Agent
By: _________________________
Authorized Signatory
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee
(a) quarterly, not later than January 1, April 1, July 1 and October
1 of each year, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders as of such Regular 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;
excluding from any such list names and addresses received by the Trustee in its
- ---------
capacity as Note Registrar.
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SECTION 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Note Registrar.
The Trustee may destroy any list furnished to it as provided in Section 701 upon
receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Notes, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Notes, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto,
subject to the reasonable discretion of the Trustee.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Notes are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Notes are listed on any stock exchange.
SECTION 704. Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and the
Trustee shall transmit to Holders, such information, documents and other
reports, and such summaries
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thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
--------
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Notes Exchange Act of 1934 shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission. Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall continue to file with the Commission and provide the
Trustee with the annual reports and the information, documents and other reports
which are specified in Section 13 of the Exchange Act. The Company also shall
comply with the other provisions of Section 314(a) of the Trust Indenture Act.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person (other than
a wholly-owned subsidiary, provided that the Company is the surviving entity) to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the
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due and punctual payment of the principal of and interest on all the Notes
and the performance or observance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or a Subsidiary
as a result of such transaction as having been incurred by the Company or
such Subsidiary at the time of such transaction, (i) no Event of Default,
and no event which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing; and (ii) each
insured depositary institution (within the meaning of 12 U.S.C.
(S)1813(c)(2) or any successor law, rule or regulation) controlled by the
surviving entity shall be in compliance with all applicable minimum capital
requirements issued by the Federal Deposit Insurance Corporation and any
other governmental entity; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802. Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolida tion or into which
the Company is merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Notes.
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ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Notes; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this Clause (3)
--------
shall not adversely affect the interests of the Holders in any material
respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Notes, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders under this Indenture; provided, however, that
-------- -------
no such supplemental indenture shall, without
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the consent of the Holder of each Outstanding Note affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment
of interest on, any Note, or reduce the principal amount thereof or the
rate of interest thereon, or change the place of payment where, or the coin
or currency in which, any Note or interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Notes, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1009, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Note affected
thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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SECTION 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Notes to Supplemental Indentures.
---------------------------------------------
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal and Interest.
---------------------------------
The Company will duly and punctually pay the principal of and interest
on the Notes in accordance with the terms of the Notes and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in the Borough of Manhattan, State of New
York an office or agency where Notes
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may be presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the office of the affiliate of the
Trustee at 101 Barclay Street, New York, New York 10286, and the Company hereby
appoints the Trustee or such affiliate as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, State of New York)
where the Notes may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; provided, however, that no such
-------- -------
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the County of Los Angeles, State
of California for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 1003. Money for Note Payments to Be Held in Trust.
-------------------------------------------
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of or interest on any of the Notes,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of or interest on any Notes, deposit
with a Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
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The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (i) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (ii) during the continuance of any
default by the Company (or any other obligor upon the Notes) in the making of
any payment in respect of the Notes, upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent as
such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or interest on any
Note and remaining unclaimed for two years after such principal or interest has
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Note shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
-------- -------
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in Los Angeles, California, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
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SECTION 1004. Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee, within 60 days after the end
of each fiscal quarter of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 1005. Existence.
---------
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
-------- -------
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1006. Maintenance of Properties.
-------------------------
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
-------- -------
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is,
in the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
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SECTION 1007. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
--------
however, that the Company shall not be required to pay or discharge or cause to
- -------
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1008. Limitation on Restricted Payments.
---------------------------------
The Company (i) shall not, directly or indirectly, declare or pay any
dividend, or make any distribution, of any kind or character (whether in cash,
property or securities) in respect of any class of its Capital Stock or to the
holders of any class of its Capital Stock, excluding any dividends or
distributions payable solely in shares of its Capital Stock (other than
Disqualified Stock) or in options, warrants or other rights to acquire its
Capital Stock (other than Disqualified Stock), (ii) shall not, and shall not
permit any Subsidiary of the Company, directly or indirectly, to purchase,
redeem or otherwise acquire or retire for value (a) any Capital Stock of the
Company or (b) any options, warrants or rights to purchase or acquire shares of
Capital Stock of the Company or any securities convertible or exchangeable into
shares of Capital Stock of the Company (the transactions described in Clauses
(i) and (ii) being referred to herein as "Restricted Payments"), if at the time
thereof:
(1) upon giving effect to such Restricted Payment, the aggregate of
all Restricted Payments from December 31, 1996 exceeds the sum of:
(a) 100% of cumulative Consolidated Net Income of the Company as
shown on the audited consolidated annual financial statements of the
Company (or, in the case Consolidated Net Income of the Company shall
be negative, less 100% of such deficit) since December 31, 1996
through the last day of the last full fiscal year immediately
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preceding such Restricted Payment for which audited consolidated
annual financial statements of the Company are available; plus
(b) 100% of the aggregate net proceeds after December 31, 1996,
including the fair value of property other than cash (determined in
good faith by the Board of Directors and evidenced by a Board
Resolution), from the issuance (other than to a Subsidiary of the
Company) of Capital Stock (other than Disqualified Stock) of the
Company; plus
(c) $38 million.
The foregoing provision shall not be violated by reason of the payment
of any dividend on Capital Stock of any class within 60 days after declaration
thereof if at the declaration date such payment would have complied with the
foregoing provision.
Section 1009. Books and Records.
-----------------
The Company shall, and shall cause each Subsidiary that is a
"significant subsidiary" as defined in Rule 1-02 of Regulation S-X under the
Exchange Act to, at all times keep proper books of record and account in which
proper entries shall be made in accordance with generally accepted accounting
principles and, to the extent applicable, regulatory accounting principles.
Section 1010. Insurance.
---------
Subject to the right to sell, abandon or otherwise dispose of any
building or property whenever in the opinion of the Company the retention
thereof is inadvisable or not necessary to the business of the Company and its
Subsidiaries, the Company will at all times cause all buildings, equipment and
other insurable properties owned or operated by it or any Subsidiary to be
properly insured and kept insured with responsible insurance carriers, or
adequately insured by means of proper inter-insurance contracts, against loss or
damage by fire and other hazards, to the extent that such properties are usually
insured by Corporations owning or operating properties of a similar character;
provided, however, that the foregoing shall not prevent the Company or any
- -------- -------
Subsidiary from maintaining any self-insurance program covering minor risks if
adequate reserves are maintained in connection with such program.
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SECTION 1011. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1006 to 1008, inclusive, if before
the time for such compliance the Holders of at least a majority in principal
amount of the Outstanding Notes shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant or condition shall remain in full force and
effect.
ARTICLE ELEVEN
Redemption of Notes
SECTION 1101. Right of Redemption.
-------------------
The Notes may be redeemed at the election of the Company, as a whole
or from time to time in part, at any time on or after __________, 2002, at the
Redemption Price specified in the form of Note hereinbefore set forth, together
with accrued interest to the Redemption Date
SECTION 1102. Applicability of Article.
------------------------
Redemption of Notes at the election of the Company, as permitted by
any provision of this Indenture, shall be made in accordance with such provision
and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Notes pursuant to Section
1101 shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company of less than all the Notes, the Company shall, at least
60 days but not more than 90 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the
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Trustee of such Redemption Date and of the principal amount of Notes to be
redeemed.
SECTION 1104. Selection by Trustee of Notes to Be Redeemed.
--------------------------------------------
If less than all the Notes are to be redeemed, the particular Notes to
be redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Notes not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate in its sole
discretion which decision shall be conclusive and which may provide for the
selection for redemption of portions (equal to $1,000 or any integral multiple
thereof) of the principal amount of Notes of a denomination larger than $1,000.
The Trustee shall promptly notify the Company and each Note Registrar
in writing of the Notes selected for redemption and, in the case of any Notes
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Notes redeemed or to be redeemed only in part, to the portion of
the principal amount of such Notes which has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Notes to be redeemed, at its address appearing in the
Note Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Notes are to be redeemed, the
identification (and, in the case of partial redemption of any Notes, the
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principal amounts) of the particular Notes to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Note to be redeemed and that interest thereon
will cease to accrue on and after said date,
(5) the place or places where such Notes are to be surrendered for
payment of the Redemption Price.
Notice of redemption of Notes to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Notes which
are to be redeemed on that date.
SECTION 1107. Notes Payable on Redemption Date.
--------------------------------
Notice of redemption having been given as aforesaid, the Notes so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Notes shall cease to bear interest. Upon surrender of any such
Note for redemption in accordance with said notice, such Note shall be paid by
the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that instalments of interest whose Stated
-------- -------
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Notes, or one or more Predecessor Notes, registered as such at the close
of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
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If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by the Note.
SECTION 1108. Notes Redeemed in Part.
----------------------
Any Note which is to be redeemed only in part shall be surrendered at
an office or agency of the Company designated for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or its attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Note without service charge, a new Note or
Notes, of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Note so surrendered.
ARTICLE TWELVE
Subordination of Notes
SECTION 1201. Notes Subordinate to Senior Indebtedness.
----------------------------------------
The Company covenants and agrees, and each Holder of a Note, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the indebtedness represented
by the Notes and the payment of the principal of and interest on each and all of
the Notes are hereby expressly made subordinate and subject in right of payment
to the prior payment in full of all Senior Indebtedness.
SECTION 1202. Payment Over of Proceeds Upon Dissolution, Etc.
-----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of the Company,
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whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company, then and in any such event
the holders of Senior Indebtedness shall be entitled to receive payment in full
of all amounts due or to become due on or in respect of all Senior Indebtedness,
or provision shall be made for such payment before the Holders of the Notes are
entitled to receive any payment on account of principal of or interest on the
Notes, and to that end the holders of Senior Indebtedness shall be entitled to
receive, for application to the payment thereof, any payment or distribution of
any kind or character, whether in cash, property or securities, which may be
payable or deliverable in respect of the Notes in any such case, proceeding,
dissolution, liquidation or other winding up or event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Note shall have received any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, and if such fact shall, at or prior to the time of
such payment or distribution, have been made known to the Trustee or, as the
case may be, such Holder, then and in such event such payment or distribution
shall be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other Person making
payment or distribution of assets of the Company for application to the payment
of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all
Senior Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
For purposes of this Article only, 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 which are subordinated
in right of payment to all Senior Indebtedness which may at the time be
outstanding to substantially the same extent as, or to a greater extent than,
the Notes are so subordinated as provided in this Article. The consolidation of
the Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the conveyance or transfer
of its properties and assets substantially as an entirety to another Person upon
the terms and conditions set forth in Article Eight shall not be
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deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshalling of assets and liabilities of the Company
for the purposes of this Section if the Person formed by such consolidation or
into which the Company is merged or which acquires by conveyance or transfer
such properties and assets substantially as an entirety, as the case may be,
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions set forth in Article Eight.
SECTION 1203. Prior Payment to Senior Indebtedness Upon Acceleration of Notes.
---------------------------------------------------------------
In the event that any Notes are declared due and payable before their
Stated Maturity, then and in such event the holders of Senior Indebtedness
outstanding at the time such Notes so become due and payable shall be entitled
to receive payment in full of all amounts due or to become due on or in respect
of such Senior Indebtedness, or provision shall be made for such payment, before
the Holders of the Notes are entitled to receive any payment by the Company on
account of the principal of or interest on the Notes or on account of the
purchase or other acquisition of Notes.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Note prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1202 would be applicable.
SECTION 1204. No Payment When Senior Indebtedness in Default.
----------------------------------------------
(a) In the event and during the continuation of any default in the
payment of principal of (or premium, if any) or interest on any Senior
Indebtedness beyond any applicable grace period with respect thereto, or in the
event that any event of default with respect to any Senior Indebtedness shall
have occurred and be continuing permitting the holders of such Senior
Indebtedness (or a
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trustee on behalf of the holders thereof) to declare such Senior Indebtedness
due and payable prior to the date on which it would otherwise have become due
and payable, unless and until such event of default shall have been cured or
waived or shall have ceased to exist and such acceleration shall have been
rescinded or annulled, or (b) in the event any judicial proceeding shall be
pending with respect to any such default, then no payment shall be made by the
Company on account of principal of or interest on the Notes or on account of the
purchase or other acquisition of Notes.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Note prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 1202 would be applicable.
SECTION 1205. Payment Permitted If No Default.
-------------------------------
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Notes shall prevent (a)the Company, at any time except during the
pendency of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 1202 or under the conditions
described in Section 1203 or 1204, from making payments at any time of principal
of or interest in the Notes, or (b) the application by the Trustee of any money
deposited with it hereunder to the payment of or on account of the principal of
or interest on the Notes or the retention of such payment by the Holders, if, at
the time of such application by the Trustee, it did not have knowledge that such
payment would have been prohibited by the provisions of this Article.
SECTION 1206. Subrogation to Rights of Holders of Senior Indebtedness.
-------------------------------------------------------
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Notes shall be subrogated
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(equally and ratably with the holders of all indebtedness of the Company which
by its express terms is subordinated to indebtedness of the Company to
substantially the same extent as the Notes are subordinated and is entitled to
like rights of subrogation) to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of and
interest on the Notes shall be paid in full. For purposes of such subrogation,
no payments or distributions to the holders of the Senior Indebtedness of any
cash, property or securities to which the Holders of the Notes or the Trustee
would be entitled except for the provisions of this Article, and no payments
over pursuant to the provisions of this Article to the holders of Senior
Indebtedness by Holders of the Notes or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Indebtedness and the Holders
of the Notes, be deemed to be a payment or distribution by the Company to or on
account of the Senior Indebtedness.
SECTION 1207. Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Notes on the one
hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Notes is
intended to or shall (a) impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Notes, the obligation of
the Company, which is absolute and unconditional (and which, subject to the
rights under this Article of the holders of Senior Indebtedness, is intended to
rank equally with all other general obligations of the Company), to pay to the
Holders of the Notes the principal of and interest on the Notes as and when the
same shall become due and payable in accordance with their terms; or (b) affect
the relative rights against the Company of the Holders of the Notes and
creditors of the Company other than their rights in relation to the holders of
Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Note from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
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SECTION 1208. Trustee to Effectuate Subordination.
-----------------------------------
Each holder of a Note by its acceptance thereof authorizes and directs
the Trustee on its behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article and appoints the
Trustee its attorney-in-fact for any and all such purposes.
SECTION 1209. No Waiver of Subordination Provisions.
-------------------------------------
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the Notes,
without incurring responsibility to the Holders of the Notes and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Notes to the holders of Senior
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, Senior
Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii)
release any Person liable in any manner for the collection of Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Company and any other Person.
SECTION 1210. Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in
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respect of the Notes. Notwithstanding the provisions of this Article or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Notes, unless and until the
Trustee shall have received written notice thereof from the Company or a holder
of Senior Indebtedness or from any trustee therefor; and, prior to the receipt
of any such written notice, the Trustee, subject to the provisions of Section
601, shall be entitled in all respects to assume that no such facts exist;
provided, however, that if the Trustee shall not have received the notice
- -------- -------
provided for in this Section at least five 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 on
any Note), 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 purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it within five
Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee therefor). In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior 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, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
SECTION 1211. Reliance on Judicial Order or Certificate of
--------------------------------------------
Liquidating Agent.
-----------------
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to
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the provisions of Section 601, and the Holders of the Notes 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, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Notes, for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of the Senior 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.
SECTION 1212. Trustee Not Fiduciary for Holders of Senior Indebtedness.
--------------------------------------------------------
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Holders of Notes or to the Company or
to any other Person cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article or otherwise.
SECTION 1213. Rights of Trustee as Holder of Senior Indebtedness; Preservation
----------------------------------------------------------------
of Trustee's Rights.
-------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
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SECTION 1214. Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
--------
however, that Section 1313 shall not apply to the Company or any Affiliate of
- -------
the Company if it or such Affiliate acts as Paying Agent.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
GBC BANCORP
By___________________________
Attest:
__________________________
BNY WESTERN TRUST COMPANY
By___________________________
Authorized Signatory
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STATE OF CALIFORNIA ) ss.:
COUNTY OF LOS ANGELES )
On the _____ day of __________, 19__, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that [he -- she] is _____________________________________ of
___________________________, one of the corporations described in and which
executed the foregoing instrument; that [he -- she] knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that [he -- she] signed [his -- her] name thereto by like
authority.
______________________________
STATE OF CALIFORNIA ) ss.:
COUNTY OF LOS ANGELES )
On the _____ day of __________, 19__, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that [he -- she] is ______________________________ of
___________________________, one of the corporations described in and which
executed the foregoing instrument; that [he -- she] knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that [he -- she] signed [his -- her] name thereto by like
authority.
______________________________
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EXHIBIT 5.1
[LETTERHEAD OF SULLIVAN & CROMWELL]
June 27, 1997
GBC Bancorp,
800 West Sixth Street,
Los Angeles, California 90017.
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933
(the "Act") of $40,000,000 principal amount of ___% Subordinated Notes due 2007
(the "Securities") of GBC Bancorp, a California corporation (the "Company"), we,
as your special counsel, have examined such corporate records, certificates and
other documents, and such questions of law, as we have considered necessary or
appropriate for the purposes of this opinion.
Upon the basis of such examination, we advise you that, in our
opinion, when the Registration Statement has become effective under the Act, the
Indenture relating to the Securities has been duly executed and delivered, the
<PAGE>
GBC Bancorp -2-
terms of the Securities and of their issuance and sale have been duly
established in conformity with the Indenture so as not to violate any applicable
law or result in a default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company,
and the Securities have been duly executed and authenticated in accordance with
the Indenture and issued and sold as contemplated in the Registration Statement,
the Securities will constitute valid and legally binding obligations of the
Company, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
The foregoing opinion is limited to the Federal laws of the United
States and the laws of the States of New York and California, and we are
expressing no opinion as to the effect of the laws of any other jurisdiction.
<PAGE>
GBC Bancorp -3-
We have relied as to certain matters on information obtained from
public officials, officers of the Company and other sources believed by us to be
responsible.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Legal
Opinions" in the Prospectus. In giving such consent, we do not thereby admit
that we are in the category of persons whose consent is required under Section 7
of the Act.
Very truly yours,
SULLIVAN & CROMWELL
<PAGE>
EXHIBIT 12.1
Sheet 2
GBC BANCORP
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES
<TABLE>
<CAPTION>
(Dollars in Thousands) 3 Months Ended For the Years Ended December 31,
------------------ --------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
------- ------- ------- ------- ------- ------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Income before income tax expense $ 8,418 $ 6,362 $28,216 $ 9,076 $ 9,325 $17,136 $19,597
Add:
Interest on deposits 10,649 9,930 40,897 34,575 25,505 20,796 25,153
Interest on borrowings 397 732 2,746 2,825 3,366 4,183 3,270
Portion of rents applicable to interest * - - - - - - -
Amortization of debt expense, discount
and premium 4 4 18 18 18 18 18
------- ------- ------- ------- ------- ------- -------
Earnings as adjusted (1) $19,468 $17,028 $71,877 $46,494 $38,214 $42,133 $48,038
======= ======= ======= ======= ======= ======= =======
Less:
Interest on deposits 10,649 9,930 40,897 34,575 25,505 20,796 25,153
------- ------- ------- ------- ------- ------- -------
Adjusted earnings excluding interest
on deposits (2) $ 8,819 $ 7,098 $30,980 $11,919 $12,709 $21,337 $22,885
======= ======= ======= ======= ======= ======= =======
Fixed charges
Interest on deposits $10,649 $ 9,930 $40,897 $34,575 $25,505 $20,796 $25,153
Interest on borrowings 397 732 2,746 2,825 3,366 4,183 3,270
Rents:
Total rents net of sublease rental 535 523 2,095 2,177 1,831 2,544 1,376
Portion of rents applicable to interest * - - - - - - -
Amortization of debt expense, discount
and premium 4 4 18 18 18 18 18
Capitalized interest - - - - - - -
------- ------- ------- ------- ------- ------- -------
Total Fixed Charges (9) $11,585 $11,189 $45,756 $39,595 $30,720 $27,542 $29,818
======= ======= ======= ======= ======= ======= =======
Fixed charges excluding interest on
deposits (10) $ 936 $ 1,259 $ 4,859 $ 5,020 $ 5,215 $ 6,746 $ 4,664
------- ------- ------- ------- ------- ------- -------
Ratio of earnings to fixed charges (1)/(9) 168% 152% 157% 117% 124% 153% 161%
------- ------- ------- ------- ------- ------- -------
Ratio of earnings to fixed charges
excluding interest on deposits (2)/(10) 942% 564% 638% 237% 244% 316% 491%
------- ------- ------- ------- ------- ------- -------
Amount of coverage surplus (deficiency) $ 7,883 $ 5,839 $26,121 $ 6,899 $ 7,494 $14,591 $18,220
======= ======= ======= ======= ======= ======= =======
</TABLE>
* Portion of rents applicable to interest is deemed immaterial
Page 1
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
GBC Bancorp:
We consent to the use of our report incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the Prospectus.
KPMG Peat Marwick LLP
Los Angeles, California
June 25, 1997
<PAGE>
EXHIBIT 25.1
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(B)(2) [_]
______________
BNY WESTERN TRUST COMPANY
(Exact name of trustee as specified in its charter)
California 95-3571558
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
700 South Flower Street
Los Angeles, California 90017
(Address of principal executive offices) (Zip Code)
_______________
GBC BANCORP
(Exact name of obligor as specified in its charter)
California 95-3586596
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
800 West 6th Street
Los Angeles, California 90017
(Address of principal executive offices) (Zip Code)
______________
____% Subordinated Notes Due 2007
(Title of the indenture securities)
================================================================================
<PAGE>
1. General information.
(a) Name and address of each examining or supervising authority to which
it is subject.
- --------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------
Federal Deposit Insurance Corporation 25 Ecker Street
San Francisco, California 94105
State Banking Department 111 Pine Street, Suite 1100
San Francisco, California 94111
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
None.
16. List of Exhibits.
1.1 Articles of Incorporation of Security Trust Company, as filed in
the Office of the Secretary of State of the State of California on
November 13, 1980 and filed in the office of the Superintendent of
Banks, State of California on November 17, 1980; incorporated
herein by reference as Exhibit 1.1 filed with Form T-1 Statement,
Registration No. 33-56465.
1.2 Certificate of Amendment of Articles of Incorporation (changing the
name of the Trustee from Security Trust Company to Bradford Trust
Company of California), as filed in the office of the Secretary of
State of the State of California on January 7, 1985; incorporated
herein by reference as Exhibit 1.2 filed with Form T-1 Statement,
Registration No. 33-56465.
1.3 Certificate of Amendment of Articles of Incorporation (changing the
name of the Trustee from Bradford Trust Company of California to
FIDATA Trust Company of California), as filed in the office of the
Secretary of State of the State of California on April 11, 1985;
incorporated herein by reference as Exhibit 1.3 filed with Form T-1
Statement, Registration No. 33-56465.
1.4 Certificate of Amendment of Articles of Incorporation (changing the
name of the Trustee from FIDATA Trust Company California to Wall
Street Trust Company California), as filed in the office of the
Secretary of State of the State of California on February 5, 1986;
incorporated herein by reference as Exhibit 1.4 filed with Form T-1
Statement, Registration No. 33-56465.
2
<PAGE>
1.5 Certificate of Amendment of Articles of Incorporation (changing the
name of the Trustee from Wall Street Trust Company California to
The Bank of New York Trust Company of California), as filed in the
office of the Secretary of State of the State of California on
April 15, 1988; incorporated herein by reference as Exhibit 1.5
filed with Form T-1 Statement, Registration No. 33-56465.
3. Copy of Certificate of the State Banking Department, State of
California, dated January 24, 1994, authorizing the Trustee to transact
a commercial banking business and to engage in the trust business at 700
South Flower Street, Los Angeles, California; incorporated herein by
reference as Exhibit 3 filed with Form T-1 Statement, Registration No.
33-56465.
4. Copy of By-Laws of the Trustee; incorporated herein by reference as
Exhibit 4 filed with Form T-1 Statement, Registration No. 33-56465.
6. Consent of the Trustee required by Section 321(b) of the Act;
incorporated herein by reference as Exhibit 6 filed with Form T-1
Statement, Registration No. 33-56465.
7. Copy of latest report of condition of the Trustee published pursuant to
law or to the requirements of its supervising or examining authority.
3
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, BNY Western Trust
Company, a corporation organized and existing under the laws of the State of
California, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of Los
Angeles, and State of California, on the 27th day of June, 1997.
BNY WESTERN TRUST COMPANY
By: /s/ David A. Oeser
----------------------------------
Name: David A. Oeser
Title: Assistant Vice President
4
<PAGE>
REPORT OF CONDITION
Consolidating domestic subsidiaries of the
BNY WESTERN TRUST COMPANY of LOS ANGELES
- --------------------------------------------------------------------------------
Name of Bank City
in the state of California , at the close of business on March 31, 1997.
----------------
<TABLE>
<CAPTION>
Thousands of Dollars
<S> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin..................... 31,614
Interest-bearing balances.............................................. 145,505
Held-to-maturity securities.............................................. 2,223
Available-for-sale securities............................................ 0
Federal funds sold and securities purchased under agreements to resell... 25,900
Loans and lease financing receivables:
Loans and leases, net of unearned income............................... 0
LESS: Allowance for loan and lease losses............................. 0
LESS: Allocated transfer risk reserve................................. 0
Loans and leases, net of unearned income, allowance, and reserve....... 0
Trading assets........................................................... 0
Premises and fixed assets (including capitalized leases)................. 638
Other real estate owned.................................................. 0
Investments in unconsolidated subsidiaries and associated companies...... 0
Customers' liability to this bank on acceptance outstanding.............. 0
Intangible assets........................................................ 134,886
Other assets............................................................. 20,671
Total assets............................................................. 361,437
</TABLE>
5
<PAGE>
<TABLE>
<S> <C>
LIABILITIES
Deposits:
In domestic offices.......................................................... 190,781
Noninterest-bearing........................................................ 190,546
Interest-bearing........................................................... 235
Federal funds purchased and securities sold under agreements to repurchase... 0
Demand notes issued to the U.S. Treasury..................................... 0
Trading liabilities.......................................................... 0
Other borrowed money (includes mortgage indebtedness and
obligations under capitalized leases):.......................................
With a remaining maturity of one year or less.............................. 0
With a remaining maturity of more than one year............................ 0
Bank's liability on acceptances executed and outstanding..................... 0
Subordinated notes and debentures............................................ 0
Other liabilities............................................................ 1,530
Total liabilities............................................................ 192,311
EQUITY CAPITAL
Perpetual preferred stock and related surplus................................ 0
Common stock................................................................. 1,000
Surplus...................................................................... 157,578
Undivided profits and capital reserves....................................... 10,548
Net unrealized holding gains (losses) on available-for-sale securities....... 0
Total equity capital......................................................... 169,126
Total liabilities, limited-life preferred stock, and equity capital.......... 361,437
</TABLE>
6
