WILSHIRE
BANCORP, INC.
as
Company
INDENTURE
Dated
as
of July 10, 2007
LASALLE
BANK NATIONAL ASSOCIATION
As
Trustee
JUNIOR
SUBORDINATED DEBT SECURITIES
Due
September 15, 2037
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Page
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ARTICLE
I
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DEFINITIONS
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SECTION
1.01.
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Definitions
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1
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ARTICLE
II
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DEBT
SECURITIES
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SECTION
2.01.
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Authentication
and Dating
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9
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SECTION
2.02.
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Form
of Trustee's Certificate of Authentication
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9
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SECTION
2.03.
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Form
and Denomination of Debt Securities
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10
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SECTION
2.04.
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Execution
of Debt Securities
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10
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SECTION
2.05.
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Exchange
and Registration of Transfer of Debt Securities
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10
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SECTION
2.06.
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Mutilated,
Destroyed, Lost or Stolen Debt Securities
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13
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SECTION
2.07.
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Temporary
Debt Securities
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14
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SECTION
2.08.
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Payment
of Interest
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15
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SECTION
2.09.
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Cancellation
of Debt Securities Paid, etc
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16
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SECTION
2.10.
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Computation
of Interest
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16
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SECTION
2.11.
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Extension
of Interest Payment Period
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18
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SECTION
2.12.
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CUSIP
Numbers
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19
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SECTION
2.13.
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Income
Tax Certification
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19
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SECTION
2.14.
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Global
Debentures
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19
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ARTICLE
III
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PARTICULAR
COVENANTS OF THE COMPANY
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SECTION
3.01.
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Payment
of Principal, Premium and Interest; Agreed Treatment of the Debt
Securities
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22
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SECTION
3.02.
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Offices
for Notices and Payments, etc
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22
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SECTION
3.03.
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Appointments
to Fill Vacancies in Trustee's Office
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23
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SECTION
3.04.
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Provision
as to Paying Agent
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23
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SECTION
3.05.
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Certificate
to Trustee
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24
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SECTION
3.06.
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Additional
Interest
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24
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SECTION
3.07.
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Compliance
with Consolidation Provisions
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24
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SECTION
3.08.
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Limitation
on Dividends
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25
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SECTION
3.09.
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Covenants
as to the Trust
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25
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TABLE
OF CONTENTS
(
CONTINUED
)
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Page
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ARTICLE
IV
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LISTS
AND REPORTS BY THE COMPANY AND THE TRUSTEE
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SECTION
4.01.
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Securityholders'
Lists
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26
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SECTION
4.02.
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Preservation
and Disclosure of Lists
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26
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SECTION
4.03.
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Financial
and Other Information
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27
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ARTICLE
V
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REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF
DEFAULT
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SECTION
5.01.
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Events
of Default
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28
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SECTION
5.02.
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Payment
of Debt Securities on Default; Suit Therefor
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30
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SECTION
5.03.
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Application
of Moneys Collected by Trustee
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31
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SECTION
5.04.
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Proceedings
by Securityholders
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32
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SECTION
5.05.
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Proceedings
by Trustee
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32
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SECTION
5.06.
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Remedies
Cumulative and Continuing
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33
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SECTION
5.07.
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Direction
of Proceedings and Waiver of Defaults by Majority of
Securityholders
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33
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SECTION
5.08.
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Notice
of Defaults
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34
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SECTION
5.09.
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Undertaking
to Pay Costs
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34
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ARTICLE
VI
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CONCERNING
THE TRUSTEE
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SECTION
6.01.
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Duties
and Responsibilities of Trustee
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34
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SECTION
6.02.
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Reliance
on Documents, Opinions, etc
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36
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SECTION
6.03.
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No
Responsibility for Recitals, etc
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37
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SECTION
6.04.
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Trustee,
Authenticating Agent, Paying Agents, Transfer Agents or Registrar
May Own
Debt Securities
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37
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SECTION
6.05.
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Moneys
to be Held in Trust
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37
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SECTION
6.06.
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Compensation
and Expenses of Trustee
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38
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SECTION
6.07.
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Officers'
Certificate as Evidence
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38
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SECTION
6.08.
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Eligibility
of Trustee
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39
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SECTION
6.09.
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Resignation
or Removal of Trustee, Calculation Agent, Paying Agent or Debt Security
Registrar
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39
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SECTION
6.10.
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Acceptance
by Successor
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40
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TABLE
OF CONTENTS
(
CONTINUED
)
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Page
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SECTION
6.11.
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Succession
by Merger, etc
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41
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SECTION
6.12.
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Authenticating
Agents
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42
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ARTICLE
VII
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CONCERNING
THE SECURITYHOLDERS
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SECTION
7.01.
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Action
by Securityholders
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43
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SECTION
7.02.
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Proof
of Execution by Securityholders
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44
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SECTION
7.03.
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Who
Are Deemed Absolute Owners
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44
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SECTION
7.04.
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Debt
Securities Owned by Company Deemed Not Outstanding
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44
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SECTION
7.05.
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Revocation
of Consents; Future Securityholders Bound
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45
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ARTICLE
VIII
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SECURITYHOLDERS'
MEETINGS
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SECTION
8.01.
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Purposes
of Meetings
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45
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SECTION
8.02.
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Call
of Meetings by Trustee
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46
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SECTION
8.03.
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Call
of Meetings by Company or Securityholders
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46
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SECTION
8.04.
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Qualifications
for Voting
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46
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SECTION
8.05.
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Regulations
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46
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SECTION
8.06.
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Voting
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47
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SECTION
8.07.
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Quorum;
Actions
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47
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SECTION
8.08.
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Written
Consent Without a Meeting
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48
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ARTICLE
IX
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SUPPLEMENTAL
INDENTURES
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SECTION
9.01.
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Supplemental
Indentures without Consent of Securityholders
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48
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SECTION
9.02.
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Supplemental
Indentures with Consent of Securityholders
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50
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SECTION
9.03.
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Effect
of Supplemental Indentures
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51
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SECTION
9.04.
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Notation
on Debt Securities
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51
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SECTION
9.05.
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Evidence
of Compliance of Supplemental Indenture to be furnished to
Trustee
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51
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ARTICLE
X
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REDEMPTION
OF SECURITIES
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SECTION
10.01.
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51
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SECTION
10.02.
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Special
Event Redemption
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52
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TABLE
OF CONTENTS
(
CONTINUED
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Page
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SECTION
10.03.
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Notice
of Redemption; Selection of Debt Securities
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52
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SECTION
10.04.
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Payment
of Debt Securities Called for Redemption
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53
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ARTICLE
XI
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CONSOLIDATION,
MERGER, SALE, CONVEYANCE AND LEASE
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SECTION
11.01.
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Company
May Consolidate, etc., on Certain Terms
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53
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SECTION
11.02.
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Successor
Entity to be Substituted
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54
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SECTION
11.03.
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Opinion
of Counsel to be Given to Trustee
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55
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ARTICLE
XII
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SATISFACTION
AND DISCHARGE OF INDENTURE
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SECTION
12.01.
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Discharge
of Indenture
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55
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SECTION
12.02.
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Deposited
Moneys to be Held in Trust by Trustee
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56
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SECTION
12.03.
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Paying
Agent to Repay Moneys Held
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56
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SECTION
12.04.
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Return
of Unclaimed Moneys
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56
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ARTICLE
XIII
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IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
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SECTION
13.01.
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Indenture
and Debt Securities Solely Corporate Obligations
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56
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ARTICLE
XIV
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MISCELLANEOUS
PROVISIONS
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SECTION
14.01.
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Successors
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57
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SECTION
14.02.
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Official
Acts by Successor Entity
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57
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SECTION
14.03.
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Surrender
of Company Powers
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57
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SECTION
14.04.
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Addresses
for Notices, etc
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57
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SECTION
14.05.
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Governing
Law
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58
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SECTION
14.06.
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Evidence
of Compliance with Conditions Precedent
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58
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SECTION
14.07.
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Non-Business
Days
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58
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SECTION
14.08.
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Table
of Contents, Headings, etc
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58
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SECTION
14.09.
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Execution
in Counterparts
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59
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SECTION
14.10.
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Severability
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59
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SECTION
14.11.
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Assignment
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59
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SECTION
14.12.
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Acknowledgment
of Rights
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59
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Page
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ARTICLE
XV
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SUBORDINATION
OF DEBT SECURITIES
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SECTION
15.01.
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Agreement
to Subordinate
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60
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SECTION
15.02.
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Default
on Senior Indebtedness
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60
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SECTION
15.03.
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Liquidation;
Dissolution; Bankruptcy
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61
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SECTION
15.04.
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Subrogation
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62
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SECTION
15.05.
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Trustee
to Effectuate Subordination
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63
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SECTION
15.06.
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Notice
by the Company
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63
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SECTION
15.07.
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Rights
of the Trustee, Holders of Senior Indebtedness
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63
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SECTION
15.08.
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Subordination
May Not Be Impaired
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64
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EXHIBITS
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EXHIBIT
A
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FORM
OF DEBT SECURITY
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THIS
INDENTURE, dated as of July 10, 2007, between Wilshire Bancorp, Inc., a bank
holding company incorporated in California (hereinafter sometimes called the
"Company"), and LaSalle Bank National Association as trustee (hereinafter
sometimes called the "Trustee").
W
I T N E
S S E T H:
WHEREAS,
for its lawful corporate purposes, the Company has duly authorized the issuance
of its Junior Subordinated Debt Securities due September 15, 2037 (the "Debt
Securities") under this Indenture and to provide, among other things, for the
execution and authentication, delivery and administration thereof, the Company
has duly authorized the execution of this Indenture.
NOW,
THEREFORE, in consideration of the premises, and the purchase of the Debt
Securities by the holders thereof, the Company covenants and agrees with the
Trustee for the equal and proportionate benefit of the respective holders from
time to time of the Debt Securities as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01.
Definitions
.
The
terms
defined in this Section 1.01 (except as herein otherwise expressly provided
or
unless the context otherwise requires) for all purposes of this Indenture and
of
any indenture supplemental hereto shall have the respective meanings specified
in this Section 1.01. All accounting terms used herein and not expressly defined
shall have the meanings assigned to such terms in accordance with generally
accepted accounting principles and the term "generally accepted accounting
principles" means such accounting principles as are generally accepted in the
United States at the time of any computation. The words "herein," "hereof"
and
"hereunder" and other words of similar import refer to this Indenture as a
whole
and not to any particular Article, Section or other subdivision.
"Additional
Interest" shall have the meaning set forth in Section 3.06.
"Additional
Provisions" shall have the meaning set forth in Section 15.01.
"Authenticating
Agent" means any agent or agents of the Trustee which at the time shall be
appointed and acting pursuant to Section 6.12.
"Bankruptcy
Law" means Title 11, U.S. Code, or any similar federal or state law for the
relief of debtors.
"Board
of
Directors" means the board of directors or the executive committee or any other
duly authorized designated officers of the Company.
"Board
Resolution" means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification
and delivered to the Trustee.
"Business
Day" means any day other than a Saturday, Sunday or any other day on which
banking institutions in Wilmington, Delaware, New York City or the city of
the
Principal Office of the Trustee or the Company are permitted or required by
any
applicable law or executive order to close.
"Calculation
Agent" means the Person identified as "Trustee" in the first paragraph hereof
with respect to the Debt Securities and the Institutional Trustee with respect
to the Trust Securities.
"Capital
Securities" means undivided beneficial interests in the assets of the Trust
which are designated as "TP Securities" and rank pari passu with Common
Securities issued by the Trust; provided, however, that if an Event of Default
(as defined in the Declaration) has occurred and is continuing, the rights
of
holders of such Common Securities to payment in respect of distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights of holders of such Capital Securities. The Capital Securities sold by
the
Trust to the initial purchaser(s) pursuant to the Placement Agreement and the
Capital Securities Purchase Agreement(s) shall be issued in book entry form,
registered in the name of Cede & Co., as nominee on behalf of the Depository
Trust Company, without coupons, and held by the Institutional Trustee as
custodian for the Depository Trust Company.
"Capital
Securities Guarantee" means the guarantee agreement that the Company will enter
into with LaSalle Bank National Association or other Persons that operates
directly or indirectly for the benefit of holders of Capital Securities of
the
Trust.
"Capital
Treatment Event" means, if the Company is organized and existing under the
laws
of the United States or any state thereof or the District of Columbia, the
receipt by the Company and the Trust of an Opinion of Counsel experienced in
such matters to the effect that, as a result of (a) any amendment to, or change
in, the laws, rules or regulations of the United States or any political
subdivision thereof or therein, or any rules, guidelines or policies of any
applicable regulatory authority for the Company or (b) any official or
administrative pronouncement or action or decision interpreting or applying
such
laws, rules or regulations, which amendment or change is effective or which
pronouncement, action or decision is announced on or after the date of original
issuance of the Debt Securities, there is more than an insubstantial risk that,
within 90 days of the receipt of such opinion, the aggregate Liquidation Amount
of the Capital Securities will not be eligible to be treated by the Company
as
"Tier 1 Capital" (or the then equivalent thereof) for purposes of the capital
adequacy guidelines of the Federal Reserve (or any successor regulatory
authority with jurisdiction over bank or financial holding companies), as then
in effect and applicable to the Company (or if the Company is not a bank holding
company, such guidelines applied to the Company as if the Company were subject
to such guidelines); provided, however, that the inability of the Company to
treat all or any portion of the aggregate Liquidation Amount of the Capital
Securities as Tier 1 Capital shall not constitute the basis for a Capital
Treatment Event, if such inability results from the Company having cumulative
preferred stock, minority interests in consolidated subsidiaries, or any other
class of security or interest which the Federal Reserve or OTS, as applicable,
may now or hereafter accord Tier 1 Capital treatment in excess of the
amount which may now or hereafter qualify for treatment as Tier 1 Capital
under applicable capital adequacy guidelines; provided further, however, that
the distribution of the Debt Securities in connection with the liquidation
of
the Trust by the Company shall not in and of itself constitute a Capital
Treatment Event unless such liquidation shall have occurred in connection with
a
Tax Event or an Investment Company Event.
"Certificate"
means a certificate signed by any one of the principal executive officer, the
principal financial officer or the principal accounting officer of the
Company.
"Common
Securities" means undivided beneficial interests in the assets of the Trust
which are designated as "Common Securities" and rank pari passu with Capital
Securities issued by the Trust; provided, however, that if an Event of Default
(as defined in the Declaration) has occurred and is continuing, the rights
of
holders of such Common Securities to payment in respect of distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights of holders of such Capital Securities.
"Company"
means Wilshire Bancorp, Inc., a bank holding company incorporated in California,
and, subject to the provisions of Article XI, shall include its successors
and
assigns.
"Debt
Security" or "Debt Securities" has the meaning stated in the first recital
of
this Indenture.
"Debt
Security Register" has the meaning specified in Section 2.05.
"Debt
Security Registrar" has the meaning specified in Section 2.05.
"Declaration"
means the Amended and Restated Declaration of Trust of the Trust dated as of
July 10, 2007, as amended or supplemented from time to time.
"Default"
means any event, act or condition that with notice or lapse of time, or both,
would constitute an Event of Default.
"Defaulted
Interest" has the meaning set forth in Section 2.08.
"Deferred
Interest" has the meaning set forth in Section 2.11.
"Depositary"
means an organization registered as a clearing agency under the Exchange Act
that is designated as Depositary by the Company or any successor thereto. DTC
will be the initial Depositary.
"Depositary
Participant" means a broker, dealer, bank, other financial institution or other
Person for whom from time to time the Depositary effects book-entry transfers
and pledges of securities deposited with the Depositary.
"DTC"
means The Depository Trust Company, a New York corporation.
"Event
of
Default" means any event specified in Section 5.01, which has continued for
the
period of time, if any, and after the giving of the notice, if any, therein
designated.
"Exchange
Act" means the Securities Exchange Act of 1934, as amended from time to time,
or
any successor legislation.
"Extension
Period" has the meaning set forth in Section 2.11.
"Federal
Reserve" means the Board of Governors of the Federal Reserve System.
"Global
Debenture" means a security that evidences all or part of the Debt Securities,
the ownership and transfers of which shall be made through book entries by
a
Depositary.
"Indenture"
means this instrument as originally executed or, if amended or supplemented
as
herein provided, as so amended or supplemented, or both.
"Initial
Purchaser" means the initial purchaser of the Capital Securities.
"Institutional
Trustee" has the meaning set forth in the Declaration.
"Interest
Payment Date" means March 15, June 15, September 15 and December 15 of each
year, commencing on September 15, 2007, during the term of this
Indenture.
"Interest
Payment Period" means the period from and including an Interest Payment Date,
or
in the case of the first Interest Payment Period, the original date of issuance
of the Debt Securities, to, but excluding, the next succeeding Interest Payment
Date or, in the case of the last Interest Payment Period, the Redemption Date,
Special Redemption Date or Maturity Date, as the case may be.
"Interest
Rate" means, with respect to any Interest Payment Period, a per annum rate
of
interest, equal to LIBOR, as determined on the LIBOR Determination Date for
such
Interest Payment Date, plus 1.38%; provided, however, that the Interest Rate
for
any Interest Payment Period may not exceed the highest rate permitted by New
York law, as the same may be modified by United States law of general
applicability.
"Investment
Company Event" means the receipt by the Company and the Trust of an Opinion
of
Counsel experienced in such matters to the effect that, as a result of a change
in law or regulation or written change in interpretation or application of
law
or regulation by any legislative body, court, governmental agency or regulatory
authority, there is more than an insubstantial risk that the Trust is or, within
90 days of the date of such opinion will be, considered an "investment company"
that is required to be registered under the Investment Company Act of 1940,
as
amended, which change or prospective change becomes effective or would become
effective, as the case may be, on or after the date of the original issuance
of
the Debt Securities.
"LIBOR"
means the London Interbank Offered Rate for U.S. Dollar deposits in Europe
as
determined by the Calculation Agent according to Section 2.10(b).
"LIBOR
Banking Day" has the meaning set forth in Section 2.10(b)(1).
"LIBOR
Business Day" has the meaning set forth in Section 2.10(b)(1).
"LIBOR
Determination Date" has the meaning set forth in Section 2.10(b).
"Liquidation
Amount" means the liquidation amount of $1,000 per Trust Security.
"Maturity
Date" means September 15, 2037.
"Notice"
has the meaning set forth in Section 2.11.
"Officers'
Certificate" means a certificate signed by the Chairman of the Board, the Vice
Chairman, the President or any Vice President, and by the Chief Financial
Officer, the Treasurer, an Assistant Treasurer, the Comptroller, an Assistant
Comptroller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 14.06 if and to the extent required by the provisions
of
such Section.
"Opinion
of Counsel" means an opinion in writing signed by legal counsel, who may be
an
employee of or counsel to the Company, or may be other counsel reasonably
satisfactory to the Trustee. Each such opinion shall include the statements
provided for in Section 14.06 if and to the extent required by the provisions
of
such Section.
"OTS"
means the Office of Thrift Supervision and any successor federal agency that
is
primarily responsible for regulating the activities of savings and loan holding
companies.
"Outstanding"
means, when used with reference to Debt Securities, subject to the provisions
of
Section 7.04, as of any particular time, all Debt Securities authenticated
and
delivered by the Trustee or the Authenticating Agent under this Indenture,
except
(a)
Debt
Securities theretofore canceled by the Trustee or the Authenticating Agent
or
delivered to the Trustee for cancellation;
(b)
Debt
Securities, or portions thereof, for the payment or redemption of which moneys
in the necessary amount shall have been deposited in trust with the Trustee
or
with any Paying Agent (other than the Company) or shall have been set aside
and
segregated in trust by the Company (if the Company shall act as its own Paying
Agent);
provided
,
that,
if such Debt Securities, or portions thereof, are to be redeemed prior to
maturity thereof, notice of such redemption shall have been given as provided
in
Articles X and XIV or provision satisfactory to the Trustee shall have been
made
for giving such notice; and
(c)
Debt
Securities paid pursuant to Section 2.06 or in lieu of or in substitution for
which other Debt Securities shall have been authenticated and delivered pursuant
to the terms of Section 2.06 unless proof satisfactory to the Company and the
Trustee is presented that any such Debt Securities are held by bona fide holders
in due course.
"Paying
Agent" has the meaning set forth in Section 3.04(e).
"Person"
means any individual, corporation, limited liability company, partnership,
joint
venture, association, joint-stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
"Placement
Agent" means Cohen & Company.
"Predecessor
Security" of any particular Debt Security means every previous Debt Security
evidencing all or a portion of the same debt as that evidenced by such
particular Debt Security; and, for the purposes of this definition, any Debt
Security authenticated and delivered under Section 2.06 in lieu of a lost,
destroyed or stolen Debt Security shall be deemed to evidence the same debt
as
the lost, destroyed or stolen Debt Security.
"Principal
Office of the Trustee" means the office of the Trustee, at which at any
particular time its corporate trust business shall be principally administered,
which at all times shall be located within the United States and at the time
of
the execution of this Indenture shall be 135 S. LaSalle Street, Suite 1511,
Chicago, Illinois 60603, Attn: CDO Trust Services Group - Wilshire Statutory
Trust IV.
"Redemption
Date" has the meaning set forth in Section 10.01.
"Redemption
Price" means 100% of the principal amount of the Debt Securities being redeemed
plus accrued and unpaid interest on such Debt Securities to the Redemption
Date.
"Responsible
Officer" means, with respect to the Trustee, any officer within the CDO Trust
Services Group in the Principal Office of the Trustee with direct responsibility
for the administration of the Indenture, including any vice-president, any
assistant vice-president, any secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer or other officer of the Principal
Office 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 that officer's knowledge of and familiarity with the
particular subject.
"Securities
Act" means the Securities Act of 1933, as amended from time to time, or any
successor legislation.
"Securityholder,"
"holder of Debt Securities" or other similar terms, means any Person in whose
name at the time a particular Debt Security is registered on the Debt Security
Register.
"Senior
Indebtedness" means, with respect to the Company, (i) the principal, premium,
if
any, and interest in respect of (A) indebtedness of the Company for money
borrowed and (B) indebtedness evidenced by securities, debentures, notes, bonds
or other similar instruments issued by the Company; (ii) all capital lease
obligations of the Company; (iii) all obligations of the Company issued or
assumed as the deferred purchase price of property, all conditional sale
obligations of the Company and all obligations of the Company under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of the Company for the
reimbursement of any letter of credit, any banker's acceptance, any security
purchase facility, any repurchase agreement or similar arrangement, any interest
rate swap, any other hedging arrangement, any obligation under options or any
similar credit or other transaction; (v) all obligations of the type referred
to
in clauses (i) through (iv) above of other Persons for the payment of which
the
Company is responsible or liable as obligor, guarantor or otherwise; and (vi)
all obligations of the type referred to in clauses (i) through (v) above of
other Persons secured by any lien on any property or asset of the Company
(whether or not such obligation is assumed by the Company), whether incurred
on
or prior to the date of this Indenture or thereafter incurred, unless, with
the
prior approval of the Federal Reserve if not otherwise generally approved,
it is
provided in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, that such obligations are not superior or are
pari
passu
in right
of payment to the Debt Securities; provided, however, that Senior Indebtedness
shall not include (A) any debt securities issued to any trust other than the
Trust (or a trustee of such trust) that is a financing vehicle of the Company
(a
"financing entity"), in connection with the issuance by such financing entity
of
equity or other securities in transactions substantially similar in structure
to
the transactions contemplated hereunder and in the Declaration, (B) any
guarantees of the Company in respect of the equity or other securities of any
financing entity referred to in clause (A) above or (C) any other instruments
classified as subordinated or
pari
passu
to the
Debt Securities by the Federal Reserve from time to time hereafter.
"Special
Event" means any of a Tax Event, an Investment Company Event or a Capital
Treatment Event.
"Special
Redemption Date" has the meaning set forth in Section 10.02.
"Special
Redemption Price" means, with respect to the redemption of any Debt Security
following a Special Event, an amount in cash equal to 103.525% of the principal
amount of Debt Securities to be redeemed prior to September 15, 2008 and
thereafter equal to the percentage of the principal amount of the Debt
Securities that is specified below for the Special Redemption Date plus, in
each
case, unpaid interest accrued thereon to the Special Redemption Date:
Special
Redemption During the
12-Month
Period Beginning September 15
|
|
Percentage
of Principal
Amount
|
|
|
|
2008
|
|
103.140%
|
2009
|
|
102.355%
|
2010
|
|
101.570%
|
2011
|
|
100.785%
|
2012
and thereafter
|
|
100.000%
|
"Subsidiary"
means, with respect to any Person, (i) any corporation, at least a majority
of
the outstanding voting stock of which is owned, directly or indirectly, by
such
Person or by one or more of its Subsidiaries, or by such Person and one or
more
of its Subsidiaries, (ii) any general partnership, joint venture or similar
entity, at least a majority of the outstanding partnership or similar interests
of which shall at the time be owned by such Person, or by one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries, and (iii)
any limited partnership of which such Person or any of its Subsidiaries is
a
general partner. For the purposes of this definition, "voting stock" means
shares, interests, participations or other equivalents in the equity interest
(however designated) in such Person having ordinary voting power for the
election of a majority of the directors (or the equivalent) of such Person,
other than shares, interests, participations or other equivalents having such
power only by reason of the occurrence of a contingency.
"Tax
Event" means the receipt by the Company and the Trust of an Opinion of Counsel
experienced in such matters to the effect that, as a result of any amendment
to
or change (including any announced prospective change) in the laws or any
regulations thereunder of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of any official
administrative pronouncement (including any private letter ruling, technical
advice memorandum, regulatory procedure, notice or announcement (an
"Administrative Action")) or judicial decision interpreting or applying such
laws or regulations, regardless of whether such Administrative Action or
judicial decision is issued to or in connection with a proceeding involving
the
Company or the Trust and whether or not subject to review or appeal, which
amendment, clarification, change, Administrative Action or decision is enacted,
promulgated or announced, in each case on or after the date of original issuance
of the Debt Securities, there is more than an insubstantial risk that: (i)
the
Trust is, or will be within 90 days of the date of such opinion, subject to
United States federal income tax with respect to income received or accrued
on
the Debt Securities; (ii) if the Company is organized and existing under the
laws of the United States or any state thereof or the District of Columbia,
interest payable by the Company on the Debt Securities is not, or within 90
days
of the date of such opinion, will not be, deductible by the Company, in whole
or
in part, for United States federal income tax purposes; or (iii) the Trust
is,
or will be within 90 days of the date of such opinion, subject to or otherwise
required to pay, or required to withhold from distributions to holders of Trust
Securities, more than a de minimis amount of other taxes (including withholding
taxes), duties, assessments or other governmental charges.
"Trust"
means Wilshire Statutory Trust IV, the Delaware statutory trust, or any other
similar trust created for the purpose of issuing Capital Securities in
connection with the issuance of Debt Securities under this Indenture, of which
the Company is the sponsor.
"Trust
Indenture Act" means the Trust Indenture Act of 1939, as amended from
time-to-time, or any successor legislation.
"Trust
Securities" means Common Securities and Capital Securities of Wilshire Statutory
Trust IV.
"Trustee"
means the Person identified as "Trustee" in the first paragraph hereof, and,
subject to the provisions of Article VI hereof, shall also include its
successors and assigns as Trustee hereunder.
"United
States" means the United States of America and the District of
Columbia.
"U.S.
Person" has the meaning given to United States Person as set forth in Section
7701(a)(30) of the Internal Revenue Code of 1986, as amended.
ARTICLE
II
DEBT
SECURITIES
SECTION
2.01.
Authentication and Dating
.
Upon
the
execution and delivery of this Indenture, or from time to time thereafter,
Debt
Securities in an aggregate principal amount not in excess of $25,774,000 may
be
executed and delivered by the Company to the Trustee for authentication, and
the
Trustee shall thereupon authenticate and make available for delivery said Debt
Securities to or upon the written order of the Company, signed by its Chairman
of the Board of Directors, Vice Chairman, President or Chief Financial Officer
or one of its Vice Presidents, without any further action by the Company
hereunder. In authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities,
the
Trustee shall be entitled to receive, and (subject to Section 6.01) shall be
fully protected in relying upon a copy of any Board Resolution or Board
Resolutions relating thereto and, if applicable, an appropriate record of any
action taken pursuant to such resolution, in each case certified by the
Secretary or an Assistant Secretary or other officers with appropriate delegated
authority of the Company as the case may be.
The
Trustee shall have the right to decline to authenticate and deliver any Debt
Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if a Responsible
Officer of the Trustee in good faith shall determine that such action would
expose the Trustee to personal liability to existing Securityholders. The
Trustee shall also be entitled to receive an Opinion of Counsel to the effect
that (1) all conditions precedent to the execution, delivery and authentication
of the Securities have been complied with; (2) the Securities are not required
to be registered under the Securities Act; and (3) the Indenture is not required
to be qualified under the Trust Indenture Act.
The
definitive Debt Securities shall be typed, printed, lithographed or engraved
on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Debt Securities, as evidenced by their execution
of such Debt Securities.
SECTION
2.02.
Form of Trustee's Certificate of Authentication
.
The
Trustee's certificate of authentication on all Debt Securities shall be in
substantially the following form:
This
represents Debt Securities referred to in the within-mentioned
Indenture.
LaSalle
Bank National Association, not in its individual capacity but solely as
Trustee
SECTION
2.03.
Form and Denomination of Debt Securities
.
The
Debt
Securities shall be substantially in the form of Exhibit A hereto. The Debt
Securities shall be in registered, certificated form without coupons and in
minimum denominations of $100,000 and any multiple of $1,000 in excess thereof.
The Debt Securities shall be numbered, lettered, or otherwise distinguished
in
such manner or in accordance with such plans as the officers executing the
same
may determine with the approval of the Trustee as evidenced by the execution
and
authentication thereof.
SECTION
2.04.
Execution of Debt Securities
.
The
Debt
Securities shall be signed in the name and on behalf of the Company by the
manual or facsimile signature of any of its Chairman of the Board of Directors,
Vice Chairman, President or Chief Financial Officer or one of its Executive
Vice
Presidents, Senior Vice Presidents or Vice Presidents, under its corporate
seal
(if legally required), which may be affixed thereto or printed, engraved or
otherwise reproduced thereon, by facsimile or otherwise, and which need not
be
attested. Only such Debt Securities as shall bear thereon a certificate of
authentication substantially in the form herein before recited, executed by
the
Trustee or the Authenticating Agent by the manual signature of an authorized
officer, shall be entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. Such certificate by the Trustee or the
Authenticating Agent upon any Debt Security executed by the Company shall be
conclusive evidence that the Debt Security so authenticated has been duly
authenticated and delivered hereunder and that the Securityholder is entitled
to
the benefits of this Indenture.
In
case
any officer of the Company who shall have signed any of the Debt Securities
shall cease to be such officer before the Debt Securities so signed shall have
been authenticated and delivered by the Trustee or the Authenticating Agent,
or
disposed of by the Company, such Debt Securities nevertheless may be
authenticated and delivered or disposed of as though the Person who signed
such
Debt Securities had not ceased to be such officer of the Company; and any Debt
Security may be signed on behalf of the Company by such Persons as, at the
actual date of the execution of such Debt Security, shall be the proper officers
of the Company, although at the date of the execution of this Indenture any
such
person was not such an officer.
Every
Debt Security shall be dated the date of its authentication.
SECTION
2.05.
Exchange and Registration of Transfer of Debt
Securities
.
The
Trustee, in its capacity as "Debt Security Registrar", shall cause to be kept,
at the office or agency maintained for the purpose of registration of transfer
and for exchange as provided in Section 3.02, a register (the "Debt Security
Register") for the Debt Securities issued hereunder in which, subject to such
reasonable regulations as it may prescribe, the Debt Security Registrar shall
provide for the registration and transfer of all Debt Securities as provided
in
this Article II. Such register shall be in written form or in any other form
capable of being converted into written form within a reasonable
time.
Debt
Securities to be exchanged may be surrendered at the Principal Office of the
Trustee or at any office or agency to be maintained by the Company for such
purpose as provided in Section 3.02, and the Company shall execute, the Company
or the Trustee shall register and the Trustee or the Authenticating Agent shall
authenticate and make available for delivery in exchange therefor the Debt
Security or Debt Securities which the Securityholder making the exchange shall
be entitled to receive. Upon due presentment for registration of transfer of
any
Debt Security at the Principal Office of the Trustee or at any office or agency
of the Company maintained for such purpose as provided in Section 3.02, the
Company shall execute, the Company or the Trustee shall register and the Trustee
or the Authenticating Agent shall authenticate and make available for delivery
in the name of the transferee or transferees a new Debt Security for a like
aggregate principal amount. Registration or registration of transfer of any
Debt
Security by the Trustee or by any agent of the Company appointed pursuant to
Section 3.02, and delivery of such Debt Security, shall be deemed to complete
the registration or registration of transfer of such Debt Security.
All
Debt
Securities presented for registration of transfer or for exchange or payment
shall (if so required by the Company or the Trustee or the Authenticating Agent)
be duly endorsed by, or be accompanied by, a written instrument or instruments
of transfer in form satisfactory to the Company and either the Trustee or the
Authenticating Agent duly executed by, the Securityholder or such
Securityholder's attorney duly authorized in writing.
Neither
the Trustee nor the Debt Security Registrar shall be responsible for
ascertaining whether any transfer hereunder complies with the registration
provisions of or any exemptions from the Securities Act (under and as defined
in
the Declaration), applicable state securities laws or the applicable laws of
any
other jurisdiction, ERISA, the United States Internal Revenue Code of 1986,
as
amended, or the Investment Company Act (under and as defined in the
Declaration).
No
service charge shall be made for any exchange or registration of transfer of
Debt Securities, but the Company or the Trustee may require payment of a sum
sufficient to cover any tax, fee or other governmental charge that may be
imposed in connection therewith.
The
Company or the Trustee shall not be required to exchange or register a transfer
of any Debt Security for a period of 15 days immediately preceding the date
of
selection of Debt Securities for redemption.
Notwithstanding
the foregoing, Debt Securities may not be transferred except in compliance
with
the restricted securities legend set forth below, unless otherwise determined
by
the Company in accordance with applicable law, which legend shall be placed
on
each Debt Security:
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL
OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO THE COMPANY, (B) PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON THE HOLDER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE
IN
RELIANCE ON RULE 144A, (C) TO A "NON U.S. PERSON" IN AN "OFFSHORE TRANSACTION"
PURSUANT TO REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO AN "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE
501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT,
OR FOR THE ACCOUNT OF SUCH AN "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES
AND
NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION
IN
VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE,
A
COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY. THE HOLDER OF THIS SECURITY
BY
ITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.
THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS AND WARRANTS
THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS SECURITY UNLESS
SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT OR AN APPLICABLE
EXEMPTION THEREFROM.
THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT
OR
OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), (EACH A "PLAN"), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT
IN THE ENTITY AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN MAY ACQUIRE
OR
HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER
IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS
NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT
TO
SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING
THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING
OF
SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT
RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975
OF
THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.
IN
CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILL DELIVER TO THE
COMPANY AND TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED
BY THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A PRINCIPAL
AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF.
ANY
ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING A PRINCIPAL AMOUNT OF
LESS
THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
ANY
SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF THIS SECURITY
FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS
ON
THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST
WHATSOEVER IN THIS SECURITY.
THIS
OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY
AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE
CORPORATION. THIS OBLIGATION IS SUBORDINATED TO THE CLAIMS OF DEPOSITORS AND
THE
CLAIMS OF GENERAL AND SECURED CREDITORS OF THE COMPANY, IS INELIGIBLE AS
COLLATERAL FOR A LOAN BY THE COMPANY OR ANY OF ITS SUBSIDIARIES AND IS NOT
SECURED.
SECTION
2.06.
Mutilated, Destroyed, Lost or Stolen Debt Securities
.
In
case
any Debt Security shall become mutilated or be destroyed, lost or stolen, the
Company shall execute, and upon its written request the Trustee shall
authenticate and deliver, a new Debt Security bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Debt Security, or in lieu of and in substitution for the Debt Security so
destroyed, lost or stolen. In every case the applicant for a substituted Debt
Security shall furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, and, in every case
of
destruction, loss or theft, the applicant shall also furnish to the Company
and
the Trustee evidence to their satisfaction of the destruction, loss or theft
of
such Debt Security and of the ownership thereof.
The
Trustee may authenticate any such substituted Debt Security and deliver the
same
upon the written request or authorization of any officer of the Company. Upon
the issuance of any substituted Debt Security, 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 connected therewith.
In case any Debt Security which has matured or is about to mature or has been
called for redemption in full shall become mutilated or be destroyed, lost
or
stolen, the Company may, instead of issuing a substitute Debt Security, pay
or
authorize the payment of the same (without surrender thereof except in the
case
of a mutilated Debt Security) if the applicant for such payment shall furnish
to
the Company and the Trustee such security or indemnity as may be required by
them to save each of them harmless and, in case of destruction, loss or theft,
evidence satisfactory to the Company and to the Trustee of the destruction,
loss
or theft of such Security and of the ownership thereof.
Every
substituted Debt Security issued pursuant to the provisions of this Section
2.06
by virtue of the fact that any such Debt Security is destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether
or
not the destroyed, lost or stolen Debt Security shall be found at any time,
and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debt Securities duly issued hereunder.
All Debt Securities shall be held and owned upon the express condition that,
to
the extent permitted by applicable law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Debt Securities and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION
2.07.
Temporary Debt Securities
.
Pending
the preparation of definitive Debt Securities, the Company may execute and the
Trustee shall authenticate and make available for delivery temporary Debt
Securities that are typed, printed or lithographed. Temporary Debt Securities
shall be issuable in any authorized denomination, and substantially in the
form
of the definitive Debt Securities but with such omissions, insertions and
variations as may be appropriate for temporary Debt Securities, all as may
be
determined by the Company. Every such temporary Debt Security shall be executed
by the Company and be authenticated by the Trustee upon the same conditions
and
in substantially the same manner, and with the same effect, as the definitive
Debt Securities. Without unreasonable delay, the Company will execute and
deliver to the Trustee or the Authenticating Agent definitive Debt Securities
and thereupon any or all temporary Debt Securities may be surrendered in
exchange therefor, at the Principal Office of the Trustee or at any office
or
agency maintained by the Company for such purpose as provided in Section 3.02,
and the Trustee or the Authenticating Agent shall authenticate and make
available for delivery in exchange for such temporary Debt Securities a like
aggregate principal amount of such definitive Debt Securities. Such exchange
shall be made by the Company at its own expense and without any charge therefor
except that in case of any such exchange involving a registration of transfer
the Company may require payment of a sum sufficient to cover any tax, fee or
other governmental charge that may be imposed in relation thereto. Until so
exchanged, the temporary Debt Securities shall in all respects be entitled
to
the same benefits under this Indenture as definitive Debt Securities
authenticated and delivered hereunder.
SECTION
2.08.
Payment of Interest
.
Each
Debt
Security will bear interest at the then applicable Interest Rate from and
including each Interest Payment Date or, in the case of the first Interest
Payment Period, the original date of issuance of such Debt Security to, but
excluding, the next succeeding Interest Payment Date or, in the case of the
last
Interest Payment Period, the Redemption Date, Special Redemption Date or
Maturity Date, as applicable, on the principal thereof, on any overdue principal
and (to the extent that payment of such interest is enforceable under applicable
law) on Deferred Interest and on any overdue installment of interest (including
Defaulted Interest), payable on each Interest Payment Date commencing on
September 15, 2007. Interest and any Deferred Interest on any Debt Security
that
is payable, and is punctually paid or duly provided for by the Company, on
any
Interest Payment Date shall be paid to the Person in whose name said Debt
Security (or one or more Predecessor Securities) is registered at the close
of
business on the regular record date for such interest installment, except that
interest and any Deferred Interest payable on the Maturity Date, the Redemption
Date (to the extent redeemed) or the Special Redemption Date shall be paid
to
the Person to whom principal is paid. In the event that any Debt Security or
portion thereof is called for redemption and the redemption date is subsequent
to a regular record date with respect to any Interest Payment Date and either
on
or prior to such Interest Payment Date, interest on such Debt Security will
be
paid upon presentation and surrender of such Debt Security.
Any
interest on any Debt Security, other than Deferred Interest, that is payable,
but is not punctually paid or duly provided for by the Company, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to
be
payable to the registered Securityholder on the relevant regular record date
by
virtue of having been such Securityholder, and such Defaulted Interest shall
be
paid by the Company to the Persons in whose names such Debt Securities (or
their
respective Predecessor Securities) are registered at the close of business
on a
special record date for the payment of such Defaulted Interest, which shall
be
fixed in the following manner: the Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each such Debt
Security and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements reasonably 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 not be more than fifteen nor
less
than ten days prior to the date of the proposed payment and not less than ten
days after the receipt by the Trustee of the notice of the proposed payment.
The
Trustee shall promptly notify the Company of such special record date and,
in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the special record date therefor to
be
mailed, first class postage prepaid, to each Securityholder at his or her
address as it appears in the Debt Security Register, not less than ten days
prior to such special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having been mailed
as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose names
such Debt Securities (or their respective Predecessor Securities) are registered
on such special record date and thereafter the Company shall have no further
payment obligation in respect of the Defaulted Interest.
Any
interest scheduled to become payable on an Interest Payment Date occurring
during an Extension Period shall not be Defaulted Interest and shall be payable
on such other date as may be specified in the terms of such Debt
Securities.
The
term
"regular record date" as used in this Indenture shall mean the fifteenth day
prior to the applicable Interest Payment Date whether or not such date is a
Business Day.
Subject
to the foregoing provisions of this Section, each Debt Security delivered under
this Indenture upon registration of transfer of or in exchange for or in lieu
of
any other Debt Security shall carry the rights to interest accrued and unpaid,
and to accrue, that were carried by such other Debt Security.
SECTION
2.09.
Cancellation of Debt Securities Paid, etc
.
All
Debt
Securities surrendered for the purpose of payment, redemption, exchange or
registration of transfer, shall, if surrendered to the Company or any Paying
Agent, be surrendered to the Trustee and promptly canceled by it, or, if
surrendered to the Trustee, shall be promptly canceled by it, and no Debt
Securities shall be issued in lieu thereof except as expressly permitted by
any
of the provisions of this Indenture. The Trustee shall dispose of all canceled
Debt Securities in accordance with its customary practices, unless the Company
otherwise directs the Trustee in writing, in which case the Trustee shall
dispose of such Debt Securities as directed by the Company. If the Company
shall
acquire any of the Debt Securities, however, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such Debt
Securities unless and until the same are surrendered to the Trustee for
cancellation.
SECTION
2.10.
Computation of Interest
.
(a)
The
amount of interest payable for any Interest Payment Period will be computed
on
the basis of a 360-day year and the actual number of days elapsed in the
relevant interest period;
provided
,
however
,
that
upon the occurrence of a Special Event Redemption pursuant to Section 10.02
the
amounts payable pursuant to this Indenture shall be calculated as set forth
in
the definition of Special Redemption Price.
(b)
LIBOR,
for any Interest Payment Period, shall be determined by the Calculation Agent
in
accordance with the following provisions:
(1)
On
the
second LIBOR Business Day (provided, that on such day commercial banks are
open
for business (including dealings in foreign currency deposits) in London (a
"LIBOR Banking Day"), and otherwise the next preceding LIBOR Business Day that
is also a LIBOR Banking Day) prior to March 15, June 15, September 15 and
December 15 (or, with respect to the first Interest Payment Period, on July
6,
2007) (each such day, a "LIBOR Determination Date" for the following Interest
Payment Period), the Calculation Agent shall obtain the rate for three-month
U.S. Dollar deposits in Europe, which appears on Reuters Screen LIBOR 01 Page
(as defined in the International Swaps and Derivatives Association, Inc. 2000
Interest Rate and Currency Exchange Definitions) or such other page as may
replace such page as of 11:00 a.m. (London time) on such LIBOR Determination
Date, as reported by Bloomberg Financial markets Commodities News or any
successor service (“Reuters Screen”), and the rate so obtained shall be LIBOR
for such Interest Payment Period. "LIBOR Business Day" means any day that is
not
a Saturday, Sunday or other day on which commercial banking institutions in
The
City of New York or Chicago, Illinois are authorized or obligated by law or
executive order to be closed. If such rate is superseded on Reuters Screen
by a
corrected rate before 12:00 noon (London time) on the same LIBOR Determination
Date, the corrected rate as so substituted will be LIBOR for that Interest
Payment Period.
(2)
If,
on
any LIBOR Determination Date, such rate does not appear on Reuters Screen,
the
Calculation Agent shall determine the arithmetic mean of the offered quotations
of the Reference Banks (as defined below) to leading banks in the London
Interbank market for three-month U.S. Dollar deposits in Europe (in an amount
determined by the Calculation Agent) by reference to requests for quotations
as
of approximately 11:00 a.m. (London time) on the LIBOR Determination Date made
by the Calculation Agent to the Reference Banks. If, on any LIBOR Determination
Date, at least two of the Reference Banks provide such quotations, LIBOR shall
equal the arithmetic mean of such quotations. If, on any LIBOR Determination
Date, only one or none of the Reference Banks provide such a quotation, LIBOR
shall be deemed to be the arithmetic mean of the offered quotations that at
least two leading banks in the City of New York (as selected by the Calculation
Agent) are quoting on the relevant LIBOR Determination Date for three-month
U.S.
Dollar deposits in Europe at approximately 11:00 a.m. (London time) (in an
amount determined by the Calculation Agent). As used herein, "Reference Banks"
means four major banks in the London Interbank market selected by the
Calculation Agent.
(3)
If
the
Calculation Agent is required but is unable to determine a rate in accordance
with at least one of the procedures provided above, LIBOR for the applicable
Interest Payment Period shall be LIBOR in effect for the immediately preceding
Interest Payment Period.
(c)
All
percentages resulting from any calculations on the Debt Securities will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)), and all
dollar amounts used in or resulting from such calculation will be rounded to
the
nearest cent (with one-half cent being rounded upward).
(d)
As
soon
as practicable following each LIBOR Determination Date, but in no event later
than the 5th day following such LIBOR Determination Date, the Calculation
Agent shall notify, in writing, the Company, the Institutional Trustee and
the
Paying Agent of the applicable Interest Rate in effect for the related Interest
Payment Period. The Calculation Agent shall, upon the request of any
Securityholder, provide the Interest Rate then in effect. All calculations
made
by the Calculation Agent in the absence of manifest error shall be conclusive
for all purposes and binding on the Company and the Securityholders. Any error
in a calculation of the Interest Rate by the Calculation Agent may be corrected
at any time by the delivery of notice of such corrected Interest Rate as
provided above. The Paying Agent shall be entitled to rely on information
received from the Calculation Agent or the Company as to the Interest Rate.
The
Company shall, from time to time, provide any necessary information to the
Paying Agent relating to any original issue discount and interest on the Debt
Securities that is included in any payment and reportable for taxable income
calculation purposes. Failure to notify the Company, the Institutional Trustee
or the Paying Agent of the applicable Interest Rate shall not affect the
obligation of the Company to make payment on Debentures at such Interest
Rate.
SECTION
2.11.
Extension of Interest Payment Period
.
So
long
as no Event of Default pursuant to paragraphs (c), (e), (f) or (g) of Section
5.01 of the Indenture has occurred and is continuing, the Company shall have
the
right under the Indenture, from time to time and without causing an Event of
Default, to defer payments of interest on the Debt Securities by extending
the
interest distribution period on the Debt Securities at any time and from time
to
time during the term of the Debt Securities, for up to twenty consecutive
quarterly periods (each such extended interest distribution period, an
"Extension Period"), during which Extension Period no interest shall be due
and
payable (except any Additional Interest that may be due and payable). No
Extension Period may end on a date other than an Interest Payment Date. During
any Extension Period, interest will continue to accrue on the Debt Securities,
and interest on such accrued interest (such accrued interest and interest
thereon referred to herein as "Deferred Interest") will accrue at an annual
rate
equal to the Interest Rate applicable during such Extension Period, compounded
quarterly from the date such Deferred Interest would have been payable were
it
not for the Extension Period, to the extent permitted by law. No interest or
Deferred Interest shall be due and payable during an Extension Period, except
at
the end thereof. At the end of any such Extension Period the Company shall
pay
all Deferred Interest then accrued and unpaid on the Debt Securities;
provided
,
however
,
that no
Extension Period may extend beyond the Maturity Date, Redemption Date (to the
extent redeemed) or Special Redemption Date; and
provided
further
,
however
,
that
during any such Extension Period, the Company shall be subject to the
restrictions set forth in Section 3.08 of this Indenture. Prior to the
termination of any Extension Period, the Company may further extend such period,
provided
,
that
such period together with all such previous and further consecutive extensions
thereof shall not exceed twenty consecutive quarterly periods, or extend beyond
the Maturity Date, Redemption Date (to the extent redeemed) or Special
Redemption Date. Upon the termination of any Extension Period and upon the
payment of all Deferred Interest, the Company may commence a new Extension
Period, subject to the foregoing requirements. No interest or Deferred Interest
shall be due and payable during an Extension Period, except at the end thereof,
but Deferred Interest shall accrue upon each installment of interest that would
otherwise have been due and payable during such Extension Period until such
installment is paid. The Company must give the Trustee notice of its election
to
begin
any
Extension Period
or
extend
an Extension Period
("Notice")
not
later
than the related regular
record
date for the relevant Interest Payment Date. The Notice shall describe, in
reasonable detail, why the Company has elected to begin an Extension Period.
The
Notice shall acknowledge and affirm the Company's understanding that it is
prohibited from issuing dividends and other distributions during the Extension
Period. Upon receipt of the Notice, the Placement Agent shall have the right,
at
its sole discretion, to disclose to current holders of the outstanding Capital
Securities and to proposed purchasers the name of the Company, the fact that
the
Company has elected to begin an Extension Period and other information that
such
Placement Agent, at its sole discretion, deems relevant to the Company's
election to begin an Extension Period. The Trustee shall give notice of the
Company's election to begin a new Extension Period to the Securityholders.
SECTION
2.12.
CUSIP Numbers
.
The
Company in issuing the Debt Securities may use a "CUSIP" number (if then
generally in use), and, if so, the Trustee shall use a "CUSIP" number in notices
of redemption as a convenience to Securityholders;
provided
,
that
any such notice may state that no representation is made as to the correctness
of such number either as printed on the Debt Securities or as contained in
any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Debt Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee in writing of any change in the CUSIP
number.
SECTION
2.13.
Income Tax Certification
.
As
a
condition to the payment of any principal of or interest on the Debt Securities
without the imposition of withholding tax, the Trustee shall require the
previous delivery of properly completed and signed applicable U.S. federal
income tax certifications (generally, an Internal Revenue Service Form W-9
(or
applicable successor form) in the case of a person that is a "United States
person" within the meaning of Section 7701 (a)(30) of the Code (under and as
defined in the Declaration) or an Internal Revenue Service Form W-8 (or
applicable successor form) in the case of a person that is not a "United States
person" within the meaning of Section 7701(a)(30) of the Code, and any other
certification acceptable to it to enable the Trustee or any Paying Agent to
determine their respective duties and liabilities with respect to any taxes
or
other charges that they may be required to pay, deduct or withhold in respect
of
such Debt Securities.
SECTION
2.14.
Global Debentures
.
(a)
Upon
the
election of the holder of Outstanding Debt Securities, which election need
not
be in writing, the Debt Securities owned by such holder shall be issued in
the
form of one or more Global Debentures registered in the name of the Depositary
or its nominee. Each Global Debenture issued under this Indenture shall be
registered in the name of the Depositary designated by the Company for such
Global Debenture or a nominee thereof and held by the custodian therefor, and
each such Global Debenture shall constitute a single Debt Security for all
purposes of this Indenture.
(b) Notwithstanding
any other provision in this Indenture, no Global Debenture may be exchanged
in
whole or in part for Debt Securities registered, and no transfer of a Global
Debenture in whole or in part may be registered, in the name of any Person
other
than the Depositary for such Global Debenture or a nominee thereof unless
(i)
such Depositary advises the Trustee and the Company in writing that such
Depositary is no longer willing or able to properly discharge its
responsibilities as Depositary with respect to such Global Debenture, and
no
qualified successor is appointed by the Company within ninety (90) days of
receipt by the Company of such notice, (ii) such Depositary ceases to be
a
clearing agency registered under the Exchange Act and no successor is appointed
by the Company within ninety (90) days after obtaining knowledge of such
event,
(iii) the Company executes and delivers to the Trustee a company order stating
that the Company elects to terminate the book-entry system through the
Depositary or (iv) an Event of Default shall have occurred and be continuing.
Upon the occurrence of any event specified in clause (i), (ii), (iii) or
(iv)
above, the Trustee shall notify the Depositary and instruct the Depositary
to
notify all owners of beneficial interests in such Global Debenture of the
occurrence of such event and of the availability of Debt Securities to such
owners of beneficial interests requesting the same. Upon the issuance of
such
Debt Securities and the registration in the Debt Security Register of such
Debt
Securities in the names of such owners of the beneficial interests therein,
the
Trustee shall recognize such owners of beneficial interests as holders
hereof.
(c)
If
any
Global Debenture is to be exchanged for other Debt Securities or canceled in
part, or if another Debt Security is to be exchanged in whole or in part for
a
beneficial interest in any Global Debenture, then either (i) such Global
Debenture shall be so surrendered for exchange or cancellation as provided
in
this
Article
II
or (ii)
the principal amount thereof shall be reduced or increased by an amount equal
to
the portion thereof to be so exchanged or canceled, or equal to the principal
amount of such other Debt Security to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment made on
the
records of the Debt Security Registrar, whereupon the Trustee, in accordance
with the applicable depository procedures, shall instruct the Depositary or
its
authorized representative to make a corresponding adjustment to its records.
Upon any such surrender or adjustment of a Global Debenture by the Depositary,
accompanied by registration instructions, the Company shall execute and the
Trustee shall authenticate and deliver any Debt Securities issuable in exchange
for such Global Debenture (or any portion thereof) in accordance with the
instructions of the Depositary. The Trustee shall not be liable for any delay
in
delivery of such instructions and may conclusively rely on, and shall be fully
protected in relying on, such instructions.
(d)
Every
Debt Security authenticated and delivered upon registration of transfer of,
or
in exchange for or in lieu of, a Global Debenture or any portion thereof shall
be authenticated and delivered in the form of, and shall be, a Global Debenture,
unless such Debt Security is registered in the name of a Person other than
the
Depositary for such Global Debenture or a nominee thereof.
(e)
Debt
Securities distributed to holders of Book-Entry Capital Securities (as defined
in the Trust Agreement) upon the dissolution of the Trust shall be distributed
in the form of one or more Global Debentures registered in the name of a
Depositary or its nominee, and deposited with the Debt Security Registrar,
as
custodian for such Depositary, or with such Depositary, for credit by the
Depositary to the respective accounts of the beneficial owners of the Debt
Securities represented thereby (or such other accounts as they may direct).
Debt
Securities
distributed to holders of Capital Securities other than
Book-Entry Capital Securities upon the dissolution of the Trust shall not be
issued in the form of a Global Debenture or any other form intended to
facilitate book-entry trading in beneficial interests in such Debt
Securities.
(f)
The
Depositary or its nominee, as the registered owner of a Global Debenture, shall
be the holder of such Global Debenture for all purposes under this Indenture
and
the Debt Securities, and owners of beneficial interests in a Global Debenture
shall hold such interests pursuant to the Applicable Depository Procedures.
Accordingly, any such owner's beneficial interest in a Global Debenture shall
be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Depositary
Participants. The Debt Security Registrar and the Trustee shall be entitled
to
deal with the Depositary for all purposes of this Indenture relating to a Global
Debenture (including the payment of principal and interest thereon and the
giving of instructions or directions by owners of beneficial interests therein
and the giving of notices) as the sole holder of the Debt Security and shall
have no obligations to the owners of beneficial interests therein. Neither
the
Trustee nor the Debt Security Registrar shall have any liability in respect
of
any transfers affected by the Depositary.
(g)
The
rights of owners of beneficial interests in a Global Debenture shall be
exercised only through the Depositary and shall be limited to those established
by law and agreements between such owners and the Depositary and/or its
Depositary Participants.
(h)
No
holder
of any beneficial interest in any Global Debenture held on its behalf by a
Depositary shall have any rights under this Indenture with respect to such
Global Debenture, and such Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the owner of such Global
Debenture for all purposes whatsoever. None of the Company, the Trustee nor
any
agent of the Company or the Trustee will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a Global Debenture or maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by a Depositary
or
impair, as between a Depositary and such holders of beneficial interests, the
operation of customary practices governing the exercise of the rights of the
Depositary (or its nominee) as holder of any Debt Security.
ARTICLE
III
PART
ICULAR
COVENANTS OF THE COMPANY
SECTION
3.01.
Payment of Principal, Premium and Interest; Agreed Treatment of the
Debt Securities
.
(a)
The
Company covenants and agrees that it will duly and punctually pay or cause
to be
paid all payments due on the Debt Securities at the place, at the respective
times and in the manner provided in this Indenture and the Debt Securities.
At
the option of the Company,
each
installment of interest on the Debt Securities may be paid (i) by mailing checks
for such interest payable to the order of the Securityholders entitled thereto
as they appear on the Debt Security Register or (ii) by wire transfer to any
account with a banking institution located in the United States designated
by
such Securityholders to the Paying Agent no later than the related record date.
Notwithstanding anything to the contrary contained in this Indenture or any
Debt
Security, if the Trust or the Trustee of the Trust is the holder of any Debt
Security, then all payments in respect of such Debt Security shall be made
by
the Company in immediately available funds when due.
(b)
The
Company and each of the Securityholders will treat the Debt Securities as
indebtedness, and the amounts, other than payments of principal, payable in
respect of the principal amount of such Debt Securities as interest, for all
U.S. federal income tax purposes. All payments in respect of the Debt Securities
will be made free and clear of U.S. withholding tax to any beneficial owner
thereof that has provided (i) an Internal Revenue Service Form W-9 or W-8BEN
(or
any substitute or successor form) establishing its U.S. or non-U.S. status
for
U.S. federal income tax purposes, and establishing a complete exemption from
U.S. withholding tax, or (ii) any other applicable form establishing a complete
exemption from U.S. withholding tax.
(c)
As
of the
date of this Indenture, the Company represents that it has no intention to
exercise its right under Section 2.11 to defer payments of interest on the
Debt
Securities by commencing an Extension Period.
SECTION
3.02.
Offices for Notices and Payments, etc.
So
long
as any of the Debt Securities remain outstanding, the Company will maintain
an
office or agency where the Debt Securities may be presented for payment, an
office or agency where the Debt Securities may be presented for registration
of
transfer and for exchange as provided in this Indenture and an office or agency
where notices and demands to or upon the Company in respect of the Debt
Securities or of this Indenture may be served. The Company hereby appoints
the
Trustee at LaSalle Bank National Association, CDO Trust Services Group, Attn:
Greg Myers, 135 South LaSalle Street, Suite 1511, Chicago, Illinois 60603 -
Wilshire Statutory Trust IV
as
such
office or agency. In case the Company shall fail to maintain any such office
or
shall fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at
the
Principal Office of the Trustee.
In
addition to any such office or agency, the Company may from time to time
designate one or more other offices or agencies where the Debt Securities may
be
presented for registration of transfer and for exchange in the manner provided
in this Indenture, and the Company may from time to time rescind such
designation, as the Company may deem desirable or expedient;
provided
,
however
,
that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain any such office or agency for the purposes above
mentioned. The Company will give to the Trustee prompt written notice of any
such designation or rescission thereof.
SECTION
3.03.
Appointments to Fill Vacancies in Trustee's Office
.
The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.09, a Trustee, so that there
shall at all times be a Trustee hereunder.
SECTION
3.04.
Provision as to Paying Agent
.
(a)
If
the
Company shall appoint a Paying Agent other than the Trustee, it will cause
such
Paying Agent to execute and deliver to the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provision of this Section
3.04:
(1)
that
it
will hold all sums held by it as such agent for the payment of all payments
due
on the Debt Securities (whether such sums have been paid to it by the Company
or
by any other obligor on the Debt Securities) in trust for the benefit of the
Securityholders;
(2)
that
it
will give the Trustee prompt written notice of any failure by the Company (or
by
any other obligor on the Debt Securities) to make any payment on the Debt
Securities when the same shall be due and payable; and
(3)
that
it
will, at any time during the continuance of any Event of Default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held
in
trust by such Paying Agent.
(b)
If
the
Company shall act as its own Paying Agent, it will, on or before each due date
of the payments due on the Debt Securities, set aside, segregate and hold in
trust for the benefit of the Securityholders a sum sufficient to pay such
payments so becoming due and will notify the Trustee in writing of any failure
to take such action and of any failure by the Company (or by any other obligor
under the Debt Securities) to make any payment on the Debt Securities when
the
same shall become due and payable.
Whenever
the Company shall have one or more Paying Agents for the Debt Securities, it
will, on or prior to each due date of the payments on the Debt Securities,
deposit with a Paying Agent a sum sufficient to pay all payments so becoming
due, such sum to be held in trust for the benefit of the Persons entitled
thereto and (unless such Paying Agent is the Trustee) the Company shall promptly
notify the Trustee in writing of its action or failure to act.
(c)
Anything
in this Section 3.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge with respect
to
the Debt Securities, or for any other reason, pay, or direct any Paying Agent
to
pay to the Trustee all sums held in trust by the Company or any such Paying
Agent, such sums to be held by the Trustee upon the same terms and conditions
herein contained.
(d)
Anything
in this Section 3.04 to the contrary notwithstanding, the agreement to hold
sums
in trust as provided in this Section 3.04 is subject to Sections 12.03 and
12.04.
(e)
The
Company hereby initially appoints the Trustee to act as Paying Agent (the
"Paying Agent").
SECTION
3.05.
Certificate to Trustee
.
The
Company will deliver to the Trustee on or before 120 days after the end of
each
fiscal year, so long as Debt Securities are outstanding hereunder, a Certificate
stating that in the course of the performance by the signers of their duties
as
officers of the Company they would normally have knowledge of any default by
the
Company in the performance of any covenants of the Company contained herein,
stating whether or not they have knowledge of any such default and, if so,
specifying each such default of which the signers have knowledge and the nature
thereof.
SECTION
3.06.
Additional Interest
.
If
and
for so long as the Trust is the holder of all Debt Securities and is subject
to
or otherwise required to pay, or is required to withhold from distributions
to
holders of Trust Securities, any additional taxes (including withholding taxes),
duties, assessments or other governmental charges as a result of a Tax Event,
the Company will pay such additional amounts (the "Additional Interest") on
the
Debt Securities as shall be required so that the net amounts received and
retained by the Trust for distribution to holders of Trust Securities after
paying all taxes (including withholding taxes), duties, assessments or other
governmental charges will be equal to the amounts the Trust would have received
and retained for distribution to holders of Trust Securities after paying all
taxes (including withholding taxes on distributions to holders of Trust
Securities), duties, assessments or other governmental charges if no such
additional taxes, duties, assessments or other governmental charges had been
imposed. Whenever in this Indenture or the Debt Securities there is a reference
in any context to the payment of principal of or premium, if any, or interest
on
the Debt Securities, such mention shall be deemed to include mention of payments
of the Additional Interest provided for in this paragraph to the extent that,
in
such context, Additional Interest is, was or would be payable in respect thereof
pursuant to the provisions of this paragraph and express mention of the payment
of Additional Interest (if applicable) in any provisions hereof shall not be
construed as excluding Additional Interest in those provisions hereof where
such
express mention is not made;
provided
,
however
,
that,
notwithstanding anything to the contrary contained in this Indenture or any
Debt
Security, the deferral of the payment of interest during an Extension Period
pursuant to Section 2.11 shall not defer the payment of any Additional Interest
that may be due and payable.
SECTION
3.07.
Compliance with Consolidation Provisions
.
The
Company will not, while any of the Debt Securities remain outstanding,
consolidate with, or merge into any other Person, or merge into itself, or
sell,
convey, transfer or otherwise dispose of all or substantially all of its
property or capital stock to any other Person unless the provisions of Article
XI hereof are complied with.
SECTION
3.08.
Limitation on Dividends
.
If
Debt
Securities are initially issued to the Trust or a trustee of such Trust in
connection with the issuance of Trust Securities by the Trust (regardless
of
whether Debt
Securities
continue to be held by such Trust) and (i) there shall have occurred and
be
continuing an Event of Default, (ii) the Company shall be in default with
respect to its payment of any obligations under the Capital Securities Guarantee
or (iii) the Company shall have given notice of its election to defer payments
of interest on the Debt Securities by extending the interest distribution
period
as provided herein and such period, or any extension thereof, shall have
commenced and be continuing, then the Company may not (A) declare or pay
any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company's capital stock or
(B)
make any payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank
pari
passu
in all
respects with or junior in interest to the Debt Securities or (C) make any
payment under any guarantees of the Company that rank
pari
passu
in all
respects with or junior in interest to the Capital Securities Guarantee (other
than (a) repurchases, redemptions or other acquisitions of shares of capital
stock of the Company (I) in connection with any employment contract, benefit
plan or other similar arrangement with or for the benefit of one or more
employees, officers, directors or consultants, (II) in connection with a
dividend reinvestment or stockholder stock purchase plan or (III) in connection
with the issuance of capital stock of the Company (or securities convertible
into or exercisable for such capital stock), as consideration in an acquisition
transaction entered into prior to the occurrence of (i),
(ii)
or (iii)
above, (b) as a result of any exchange, reclassification, combination or
conversion of any class or series of the Company's capital stock (or any
capital
stock of a subsidiary of the Company) for any class or series of the Company's
capital stock or of any class or series of the Company's indebtedness for
any
class or series of the Company's capital stock, (c) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion
or
exchange provisions of such capital stock or the security being converted
or
exchanged, (d) any declaration of a dividend in connection with any
stockholder's rights plan, or the issuance of rights, stock or other property
under any stockholder's rights plan, or the redemption or repurchase of rights
pursuant thereto, or (e) any dividend in the form of stock, warrants, options
or
other rights where the dividend stock or the stock issuable upon exercise
of
such warrants, options or other rights is the same stock as that on which
the
dividend is being paid or ranks
pari
passu
with or
junior to such stock).
SECTION
3.09.
Covenants as to the Trust
.
For
so
long as such Trust Securities remain outstanding, the Company shall maintain
100% ownership of the Common Securities;
provided
,
however
,
that
any permitted successor of the Company under this Indenture that is a U.S.
Person may succeed to the Company's ownership of such Common Securities. The
Company, as owner of the Common Securities, shall use commercially reasonable
efforts to cause the Trust (a) to remain a statutory trust, except in connection
with a distribution of Debt Securities to the holders of Trust Securities in
liquidation of the Trust, the redemption of all of the Trust Securities or
certain mergers, consolidations or amalgamations, each as permitted by the
Declaration, (b) to otherwise continue to be classified as a grantor trust
for
United States federal income tax purposes and (c) to cause each holder of Trust
Securities to be treated as owning an undivided beneficial interest in the
Debt
Securities.
ARTICLE
IV
LISTS
AND
REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION
4.01.
Securityholders' Lists
.
The
Company covenants and agrees that it will furnish or cause to be furnished
to
the Trustee:
(a)
on
each
regular record date for an Interest Payment Date, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the
Securityholders as of such record date; and
(b)
at
such
other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is
furnished;
except
that no such lists need be furnished under this Section 4.01 so long as the
Trustee is in possession thereof by reason of its acting as Debt Security
Registrar.
SECTION
4.02.
Preservation and Disclosure of Lists
.
(a)
The
Trustee shall preserve, in as current a form as is reasonably practicable,
all
information as to the names and addresses of the Securityholders (1) contained
in the most recent list furnished to it as provided in Section 4.01 or (2)
received by it in the capacity of Debt Security Registrar (if so acting)
hereunder. The Trustee may destroy any list furnished to it as provided in
Section 4.01 upon receipt of a new list so furnished.
(b)
In
case
three or more Securityholders (hereinafter referred to as "applicants") apply
in
writing to the Trustee and furnish to the Trustee reasonable proof that each
such applicant has owned a Debt Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Securityholders with respect to
their rights under this Indenture or under such Debt Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall within five Business
Days
after the receipt of such application, at the election of the Company,
either:
(1)
afford
such applicants access to the information preserved at the time by the Trustee
in accordance with the provisions of subsection (a) of this Section 4.02,
or
(2)
inform
such applicants as to the approximate number of Securityholders whose names
and
addresses appear in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section
4.02,
and as
to the approximate cost of mailing to such Securityholders the form of proxy
or
other communication, if any, specified in such application.
If
the
Company shall elect not to afford such applicants access to such information,
the Trustee shall, upon the written request of such applicants, mail to each
Securityholder whose name and address appear in the information preserved at
the
time by the Trustee in accordance with the provisions of subsection (a) of
this
Section 4.02 a copy of the form of proxy or other communication which is
specified in such request with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants, and file with the
Securities and Exchange Commission, if permitted or required by applicable
law,
together with a copy of the material to be mailed, a written statement of the
Company to the effect that such mailing would be contrary to the best interests
of the holders of all Debt Securities, as the case may be, or would be in
violation of applicable law. Such written statement shall specify the basis
of
such opinion. If said Commission, as permitted or required by applicable law,
after opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, said Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter
an
order so declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and
the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c)
Each
and
every Securityholder, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee nor any Paying Agent
shall be held accountable by reason of the disclosure of any such information
as
to the names and addresses of the Securityholders in accordance with the
provisions of subsection (b) of this Section 4.02, regardless of the source
from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
said subsection (b).
SECTION
4.03.
Financial
and Other Information
.
The
Company shall deliver to each Securityholder (1) each Report on Form 10-K and
Form 10-Q prepared by the Company and filed with the Securities and Exchange
Commission in accordance with the Exchange Act within 7 days after the filing
thereof, (2) if the Company is not then (y) subject to Section 13 or 15(d)
of
the Exchange Act or (z) exempt from reporting pursuant to Rule 12g3-2(b)
thereunder, the Company shall be required to provide within 45 days of the
end
of each calendar quarterly period and 90 days after the end of each calendar
year, the information required to be provided by Rule 144A(d)(4) under the
Securities Act and (3) within 30 days after the end of the fiscal year of the
Company, Form 1099 or such other annual U.S. federal income tax information
statement required by the Code containing such information with regard to the
Debt Securities held by such
Securityholder
as is
required by the Code and the income tax regulations of the U.S. Treasury
thereunder.
If
and so long as a holder of Debt Securities is an
entity that holds a pool of debt securities or trust preferred securities,
or a
trustee thereof, the Company will cause copies of its regulatory reports to
be
delivered to the
Securityholder
promptly
following their filing with the Federal Reserve.
ARTICLE
V
REMEDIES
OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT
SECTION
5.01.
Events of Default
.
The
following events shall be "Events of Default" with respect to Debt
Securities:
(a)
the
Company defaults in the payment of any interest upon any Debt Security when
it
becomes due and payable (unless the Company has elected and may defer interest
payments pursuant to Section 2.11), and continuance of such default for a period
of 30 days; for the avoidance of doubt, an extension of any interest
distribution period by the Company in accordance with Section 2.11 of this
Indenture shall not constitute a default under this clause 5.01(a);
or
(b)
the
Company defaults in the payment of all or any part of the principal of (or
premium, if any, on) any Debt Securities as and when the same shall become
due
and payable either at maturity, upon redemption, by declaration of acceleration
pursuant to Section 5.01 of this Indenture or otherwise; or
(c)
the
Company defaults in the payment of any interest upon any Debt Security when
it
becomes due and payable following the nonpayment of any such interest for 20
or
more consecutive quarterly periods; or
(d)
the
Company defaults in the performance of, or breaches, any of its covenants or
agreements in Sections 3.06, 3.07, 3.08 or 3.09 of this Indenture (other than
a
covenant or agreement 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 not less than 25% in aggregate principal
amount of the outstanding Debt Securities, a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(e)
a
court
having jurisdiction in the premises shall enter a decree or order for relief
in
respect of the Company in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appoints a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property, or orders
the winding-up or liquidation of its affairs and such decree or order shall
remain unstayed and in effect for a period of 90 consecutive days;
or
(f)
the
Company shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, shall consent to
the
entry of an order for relief in an involuntary case under any such law, or
shall
consent to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or shall make any general
assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due; or
(g)
the
Trust
shall have voluntarily or involuntarily liquidated, dissolved, wound-up its
business or otherwise terminated its existence except in connection with (1)
the
distribution of the Debt Securities to holders of the Trust Securities in
liquidation of their interests in the Trust, (2) the redemption of all of the
outstanding Trust Securities or (3) certain mergers, consolidations or
amalgamations, each as permitted by the Declaration.
If
an
Event of Default specified under clause (c) of this Section 5.01 occurs and
is
continuing with respect to the Debt Securities, then, and in each and every
such
case, unless the principal of the Debt Securities shall have already become
due
and payable, either the Trustee or the holders of not less than 25% in aggregate
principal amount of the Debt Securities then outstanding hereunder, by notice
in
writing to the Company (and to the Trustee if given by Securityholders), may
declare the entire principal of the Debt Securities and any premium and interest
accrued, but unpaid, thereon, if any, to be due and payable immediately, and
upon any such declaration the same shall become immediately due and payable.
If
an Event of Default specified under clause (e), (f) or (g) of this Section
5.01
occurs, then, in each and every such case, the entire principal amount of the
Debt Securities and any premium and interest accrued, but unpaid, thereon shall
ipso
facto
become
immediately due and payable without further action. Notwithstanding anything
to
the contrary in this Section 5.01, if at any time during the period in which
this Indenture remains in force and effect, the Company ceases or elects to
cease to be subject to the supervision and regulations of the Federal Reserve,
OTS, OCC or similar regulatory authority overseeing bank, thrift, savings and
loan or financial holding companies or similar institutions requiring
specifications for the treatment of capital similar in nature to the capital
adequacy guidelines under the Federal Reserve rules and regulations, then the
first sentence of this paragraph shall be deemed to include clauses (a), (b)
and
(d) under this Section 5.01 as an Event of Default resulting in an acceleration
of payment of the Debt Securities to the same extent as provided herein for
clause (c).
With
respect to clause (d) of this Section 5.01, the Company agrees that in the
event
of a breach by the Company of its covenants or agreements mentioned therein,
any
remedy at law or in damages may prove inadequate and therefore the Company
agrees that the Trustee shall be entitled to injunctive relief against the
Company in the event of any breach or threatened breach by the Company, in
addition to any other relief (including damages) available to the Trustee under
this Indenture or under law.
The
foregoing provisions, however, are subject to the condition that if, at any
time
after the principal of the Debt Securities shall have been so declared due
and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, (i) the Company
shall pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Debt Securities and all payments on the
Debt Securities which shall have become due otherwise than by acceleration
(with
interest upon all such payments and Deferred Interest, to the extent permitted
by law) and such amount as shall be sufficient to cover reasonable compensation
to the Trustee and each predecessor Trustee, their respective agents, attorneys
and counsel, and all other amounts due to the Trustee pursuant to Section 6.06,
if any, and (ii) all Events of Default under this Indenture, other than the
non-payment of the payments on Debt Securities which shall have become due
by
acceleration, shall have been cured, waived or otherwise remedied as provided
herein, and in each and every such case the holders of a majority in aggregate
principal amount of the Debt Securities then outstanding, by written notice
to
the Company and to the Trustee, may waive all defaults and rescind and annul
such declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall impair
any right consequent thereon; provided, however, that if the Debt Securities
are
held by the Trust or a trustee of the Trust, such waiver or rescission and
annulment shall not be effective until the holders of a majority in aggregate
liquidation amount of the outstanding Capital Securities of the Trust shall
have
consented to such waiver or rescission and annulment.
In
case
the Trustee shall have proceeded to enforce any right under this Indenture
and
such proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company, the Trustee
and the Securityholders shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the
Company, the Trustee and the Securityholders shall continue as though no such
proceeding had been taken.
SECTION
5.02.
Payment of Debt Securities on Default; Suit Therefor
.
The
Company covenants that upon the occurrence of an Event of Default pursuant
to
paragraphs (c), (e), (f) or (g) of Section 5.01, and upon demand of the Trustee,
the Company will pay to the Trustee, for the benefit of the Securityholders,
the
whole amount that then shall have become due and payable on all Debt Securities
including Deferred Interest accrued on the Debt Securities; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including a reasonable compensation to the Trustee,
its
agents, attorneys and counsel, and any other amounts due to the Trustee under
Section 6.06. In case the Company shall fail forthwith to pay such amounts
upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any actions or proceedings at
law
or in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce
any
such judgment or final decree against the Company or any other obligor on such
Debt Securities and collect in the manner provided by law out of the property
of
the Company or any other obligor on such Debt Securities wherever situated
the
moneys adjudged or decreed to be payable.
In
case
there shall be pending proceedings for the bankruptcy or for the reorganization
of the Company or any other obligor on the Debt Securities under Bankruptcy
Law,
or in case a receiver or trustee shall have been appointed for the property
of
the Company or such other obligor, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the Debt Securities,
or to the creditors or property of the Company or such other obligor, the
Trustee, irrespective of whether the principal of the Debt Securities shall
then
be due and payable as therein expressed or by declaration of acceleration or
otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section 5.02, shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove
a
claim or claims for the whole amount of principal and interest owing and unpaid
in respect of the Debt Securities and, in case of any judicial proceedings,
to
file such proofs of claim and other papers or documents as may be necessary
or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all other
amounts due to the Trustee under Section 6.06) and of the Securityholders
allowed in such judicial proceedings relative to the Company or any other
obligor on the Debt Securities, or to the creditors or property of the Company
or such other obligor, unless prohibited by applicable law and regulations,
to
vote on behalf of the Securityholders in any election of a trustee or a standby
trustee in arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or Person performing similar functions in comparable
proceedings, and to collect and receive any moneys or other property payable
or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses; and any receiver, assignee or trustee in bankruptcy
or reorganization is hereby authorized by each of the Securityholders to make
such payments to the Trustee, and, in the event that the Trustee shall consent
to the making of such payments directly to the Securityholders, to pay to the
Trustee such amounts as shall be sufficient to cover reasonable compensation
to
the Trustee, each predecessor Trustee and their respective agents, attorneys
and
counsel, and all other amounts due to the Trustee under Section
6.06.
Nothing
herein contained shall be construed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities or the rights of any holder thereof or to authorize the Trustee
to
vote in respect of the claim of any Securityholder in any such
proceeding.
All
rights of action and of asserting claims under this Indenture, or under any
of
the Debt Securities, may be enforced by the Trustee without the possession
of
any of the Debt Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by
the
Trustee shall be brought in its own name as trustee of an express trust, and
any
recovery of judgment shall be for the ratable benefit of the
Securityholders.
In
any
proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture to which the Trustee shall
be
a party) the Trustee shall be held to represent all the Securityholders, and
it
shall not be necessary to make any Securityholders parties to any such
proceedings.
SECTION
5.03.
Application of Moneys Collected by Trustee
.
Any
moneys collected by the Trustee shall be applied in the following order, at
the
date or dates specified pursuant hereto for the distribution of such moneys,
upon presentation of the several Debt Securities in respect of which moneys
have
been collected, and stamping thereon the payment, if only partially paid, and
upon surrender thereof if fully paid:
First
:
To the
payment of costs and expenses incurred by, and reasonable fees of, the Trustee,
its agents, attorneys and counsel, and of all other amounts due to the Trustee
under Section 6.06;
Second
:
To the
payment of all Senior Indebtedness of the Company if and to the extent required
by Article XV;
Third
:
To the
payment of the amounts then due and unpaid upon Debt Securities, in respect
of
which or for the benefit of which money has been collected, ratably, without
preference or priority of any kind, according to the amounts due on such Debt
Securities; and
Fourth
:
The
balance, if any, to the Company.
SECTION
5.04.
Proceedings by Securityholders
.
No
Securityholder shall have any right to institute any suit, action or proceeding
for any remedy hereunder, unless such Securityholder previously shall have
given
to the Trustee written notice of an Event of Default with respect to the Debt
Securities and unless the holders of not less than 25% in aggregate principal
amount of the Debt Securities then outstanding shall have given the Trustee
a
written request to institute such action, suit or proceeding and shall have
offered to the Trustee such reasonable indemnity as it may require against
the
costs, expenses and liabilities to be incurred thereby, and the Trustee for
60
days after its receipt of such notice, request and offer of indemnity shall
have
failed to institute any such action, suit or proceeding;
provided
,
that no
Securityholder shall have any right to prejudice the rights of any other
Securityholder, obtain priority or preference over any other such Securityholder
or enforce any right under this Indenture except in the manner herein provided
and for the equal, ratable and common benefit of all
Securityholders.
Notwithstanding
any other provisions in this Indenture, however, the right of any Securityholder
to receive payment of the principal of, premium, if any, and interest on such
Debt Security when due, or to institute suit for the enforcement of any such
payment, shall not be impaired or affected without the consent of such
Securityholder. For the protection and enforcement of the provisions of this
Section, each and every Securityholder and the Trustee shall be entitled to
such
relief as can be given either at law or in equity.
SECTION
5.05.
Proceedings by Trustee
.
In
case
of an Event of Default hereunder the Trustee may in its discretion proceed
to
protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either by suit in equity or by action
at
law or by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in
aid
of the exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by
law.
SECTION
5.06.
Remedies Cumulative and Continuing
.
Except
as
otherwise provided in Section 2.06, all powers and remedies given by this
Article V to the Trustee or to the Securityholders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any other powers
and
remedies available to the Trustee or the Securityholders, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise established
with respect to the Debt Securities, and no delay or omission of the Trustee
or
of any Securityholder to exercise any right or power accruing upon any Event
of
Default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 5.04, every
power and remedy given by this Article V or by law to the Trustee or to the
Securityholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Securityholders.
SECTION
5.07.
Direction of Proceedings and Waiver of Defaults by Majority of
Securityholders
.
The
holders of a majority in aggregate principal amount of the Debt Securities
affected (voting as one class) at the time outstanding and, if the Debt
Securities are held by the Trust or a trustee of the Trust, the holders of
a
majority in aggregate liquidation amount of the outstanding Capital Securities
of the Trust 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 with respect to such Debt
Securities;
provided
,
however
,
that if
the Debt Securities are held by the Trust or a trustee of the Trust, such time,
method and place or such exercise, as the case may be, may not be so directed
until the holders of a majority in aggregate liquidation amount of the
outstanding Capital Securities of the Trust shall have directed such time,
method and place or such exercise, as the case may be; provided, further, that
(subject to the provisions of Section 6.01) the Trustee shall have the right
to
decline to follow any such direction if the Trustee being advised by counsel
shall determine that the action so directed would be unjustly prejudicial to
the
holders not taking part in such direction or if the Trustee being advised by
counsel determines that the action or proceeding so directed may not lawfully
be
taken or if a Responsible Officer of the Trustee shall determine that the action
or proceedings so directed would involve the Trustee in personal liability.
Prior to any declaration of acceleration, or ipso facto acceleration, of the
maturity of the Debt Securities, the holders of a majority in aggregate
principal amount of the Debt Securities at the time outstanding may on behalf
of
the holders of all of the Debt Securities waive (or modify any previously
granted waiver of) any past default or Event of Default and its consequences,
except a default (a) in the payment of principal of, premium, if any, or
interest on any of the Debt Securities, (b) in respect of covenants or
provisions hereof which cannot be modified or amended without the consent of the
holder of each Debt Security affected, or (c) in respect of the covenants
contained in Section 3.09;
provided
,
however
,
that if
the Debt Securities are held by the Trust or a trustee of the Trust, such waiver
or modification to such waiver shall not be effective until the holders of
a
majority in Liquidation Amount of the Trust Securities of the Trust shall have
consented to such waiver or modification to such waiver;
provided
,
further
,
that if
the consent of the holder of each outstanding Debt Security is required, such
waiver or modification to such waiver shall not be effective until each holder
of the outstanding Capital Securities of the Trust shall have consented
to
such
waiver or modification to such waiver. Upon any such waiver or modification
to
such waiver, the Default or Event of Default covered thereby shall be deemed
to
be cured for all purposes of this Indenture and the Company, the Trustee and
the
Securityholders shall be restored to their former positions and rights
hereunder, respectively; but no such waiver or modification to such waiver
shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon. Whenever any Default or Event of Default hereunder
shall have been waived as permitted by this Section 5.07, said Default or Event
of Default shall for all purposes of the Debt Securities and this Indenture
be
deemed to have been cured and to be not continuing.
SECTION
5.08.
Notice of Defaults
.
The
Trustee shall, within 90 days after a Responsible Officer of the Trustee shall
have actual knowledge or received written notice of the occurrence of a Default
with respect to the Debt Securities, mail to all Securityholders, as the names
and addresses of such Securityholders appear upon the Debt Security Register,
notice of all Defaults with respect to the Debt Securities actually known to
the
Trustee, unless such defaults shall have been cured before the giving of such
notice (the term "defaults" for the purpose of this Section 5.08 being hereby
defined to be the events specified in subsections (a), (b), (c), (d), (e),
(f)
and (g) of Section 5.01, not including periods of grace, if any, provided for
therein);
provided
,
that,
except in the case of default in the payment of the principal of, premium,
if
any, or interest on any of the Debt Securities, the Trustee shall be protected
in withholding such notice if and so long as a Responsible Officer of the
Trustee in good faith determines that the withholding of such notice is in
the
interests of the Securityholders.
SECTION
5.09.
Undertaking to Pay Costs
.
All
parties to this Indenture agree, and each Securityholder by such
Securityholder's acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any
action taken or omitted by it as Trustee, the filing by any party litigant
in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees and expenses, against any party litigant in such suit, having due regard
to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.09 shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than 10% in principal amount
of
the Debt Securities (or, if such Debt Securities are held by the Trust or a
trustee of the Trust, more than 10% in liquidation amount of the outstanding
Capital Securities), to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Debt Security against the Company on or after the same shall have become
due and payable, or to any suit instituted in accordance with Section
14.12.
ARTICLE
VI
CONCERNING
THE TRUSTEE
SECTION
6.01.
Duties and Responsibilities of Trustee
.
With
respect to the holders of Debt Securities issued hereunder, the Trustee,
prior
to the occurrence of an Event of Default with respect to the Debt Securities
and
after the curing or waiving of all Events of Default which may have occurred,
with respect to the Debt Securities, undertakes to perform such duties and
only
such duties as are specifically set forth in this Indenture. In case an Event
of
Default with respect to the Debt Securities has occurred (which has not been
cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill
in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
No
provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or
its
own willful misconduct, except that:
(a)
prior
to
the occurrence of an Event of Default with respect to the Debt Securities and
after the curing or waiving of all Events of Default which may have
occurred
(1)
the
duties and obligations of the Trustee with respect to the Debt Securities shall
be determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties and
obligations with respect to the Debt Securities as are specifically set forth
in
this Indenture, and no implied covenants or obligations shall be read into
this
Indenture against the Trustee; and
(2)
in
the
absence of bad faith on the part of the Trustee, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but, in the case of any
such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty
to
examine the same to determine whether or not they conform on their face to
the
requirements of this Indenture;
(b)
the
Trustee shall not be liable for any error of judgment made in good faith by
a
Responsible Officer or Officers of the Trustee, 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
Securityholders pursuant to Section 5.07, relating to the time, method and
place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture;
(d)
the
Trustee shall not be charged with knowledge of any Default or Event of Default
with respect to the Debt Securities unless either (1) a Responsible Officer
shall have actual knowledge of such Default or Event of Default or (2) written
notice of such Default or Event of Default shall have been given to the Trustee
by the Company or any other obligor on the Debt Securities or by any
Securityholder, except with respect to an Event of Default pursuant to Sections
5.01(a), 5.01(b) or 5.01(c) hereof (other than an Event of Default resulting
from the default in the payment of Additional Interest or premium, if any,
if
the Trustee does not have actual knowledge or written notice that such payment
is due and payable), of which the Trustee shall be deemed to have knowledge;
and
(e)
in
the
absence of bad faith on the part of the Trustee, the Trustee may seek and rely
on reasonable instructions from the Company.
None
of
the provisions contained in this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers.
SECTION
6.02.
Reliance on Documents, Opinions, etc.
Except
as
otherwise provided in Section 6.01:
(a)
the
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, note, debenture or
other
paper or document believed by it in good faith to be genuine and to have been
signed or presented by the proper party or parties;
(b)
any
request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers' Certificate (unless other evidence in
respect thereof be herein specifically prescribed); and any Board Resolution
may
be evidenced to the Trustee by a copy thereof certified by the Secretary or
an
Assistant Secretary of the Company;
(c)
the
Trustee may consult with counsel of its selection and any advice or Opinion
of
Counsel shall be full and complete authorization and protection in respect
of
any action taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d)
the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of
the
Securityholders, pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby;
(e)
the
Trustee shall not be liable for any action taken or omitted by it in good faith
and reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the occurrence
of an
Event of Default with respect to the Debt Securities (that has not been cured
or
waived) to exercise with respect to the Debt Securities such of the rights
and
powers vested in it by this Indenture, and to 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;
(f)
the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, debenture, coupon or other
paper or document, unless requested in writing to do so by the holders of
not
less than a majority in aggregate principal amount of the outstanding Debt
Securities affected thereby;
provided
,
however
,
that if
the payment within a reasonable time to the Trustee of the costs, expenses
or
liabilities likely to be incurred by it in the making of such investigation
is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expense or liability as a condition to
so
proceeding; 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 (including any Authenticating
Agent) or attorneys, and the Trustee shall not be responsible for any misconduct
or negligence on the part of any such agent or attorney appointed by it with
due
care.
SECTION
6.03.
No Responsibility for Recitals, etc.
The
recitals contained herein and in the Debt Securities (except in the certificate
of authentication of the Trustee or the Authenticating Agent) shall be taken
as
the statements of the Company and the Trustee and the Authenticating Agent
assume no responsibility for the correctness of the same. The Trustee and the
Authenticating Agent make no representations as to the validity or sufficiency
of this Indenture or of the Debt Securities. The Trustee and the Authenticating
Agent shall not be accountable for the use or application by the Company of
any
Debt Securities or the proceeds of any Debt Securities authenticated and
delivered by the Trustee or the Authenticating Agent in conformity with the
provisions of this Indenture.
SECTION
6.04.
Trustee, Authenticating Agent, Paying Agents, Transfer Agents or
Registrar May Own Debt Securities
.
The
Trustee or any Authenticating Agent or any Paying Agent or any transfer agent
or
any Debt Security Registrar, in its individual or any other capacity, may become
the owner or pledgee of Debt Securities with the same rights it would have
if it
were not Trustee, Authenticating Agent, Paying Agent, transfer agent or Debt
Security Registrar.
SECTION
6.05.
Moneys to be Held in Trust
.
Subject
to the provisions of Section 12.04, all moneys received by the Trustee or any
Paying Agent shall, until used or applied as herein provided, be held in trust
for the purpose for which they were received, but need not be segregated from
other funds except to the extent required by law. The Trustee and any Paying
Agent shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company. So long as
no
Event of Default shall have occurred and be continuing, all interest allowed
on
any such moneys, if any, shall be paid from time to time to the Company upon
the
written order of the Company, signed by the Chairman of the Board of Directors,
the President, the Chief Operating Officer, a Vice President, the Treasurer
or
an Assistant Treasurer of the Company.
SECTION
6.06.
Compensation and Expenses of Trustee
.
Other
than as provided in the Fee Agreement of even date herewith between Cohen &
Company, the Trustee and the Company, the Company covenants and agrees to pay
to
the Trustee from time to time, and the Trustee shall be entitled to, such
compensation as shall be agreed to in writing between the Company and the
Trustee (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and the Company will pay or
reimburse the Trustee upon its written request for all documented reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the reasonable expenses and disbursements of its
counsel and of all Persons not regularly in its employ) except any such expense,
disbursement or advance that arises from its negligence, willful misconduct
or
bad faith. The Company also covenants to indemnify each of the Trustee
(including in its individual capacity) and any predecessor Trustee (and its
officers, agents, directors and employees) for, and to hold it harmless against,
any and all loss, damage, claim, liability or expense including taxes (other
than taxes based on the income of the Trustee), except to the extent such loss,
damage, claim, liability or expense results from the negligence, willful
misconduct or bad faith of such indemnitee, 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 the premises. The
obligations of the Company under this Section 6.06 to compensate and indemnify
the Trustee and to pay or reimburse the Trustee for documented expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by (and the Company hereby grants
and pledges to the Trustee) a lien prior to that of the Debt Securities upon
all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the holders of particular Debt
Securities.
Without
prejudice to any other rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with an
Event
of Default specified in subsections (e), (f) or (g) of Section 5.01, the
expenses (including the reasonable charges and expenses of its counsel) and
the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency
or
other similar law.
The
provisions of this Section shall survive the resignation or removal of the
Trustee and the defeasance or other termination of this Indenture.
Notwithstanding
anything in this Indenture or any Debt Security to the contrary, the Trustee
shall have no obligation whatsoever to advance funds to pay any principal of
or
interest on or other amounts with respect to the Debt Securities or otherwise
advance funds to or on behalf of the Company.
SECTION
6.07.
Officers' Certificate as Evidence
.
Except
as
otherwise provided in Sections 6.01 and 6.02, whenever in the administration
of
the provisions of this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to taking or omitting
any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence, willful
misconduct or bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered to the Trustee,
and
such certificate, in the absence of negligence, willful misconduct or bad
faith
on the part of the Trustee, shall be full warrant to the Trustee for any
action
taken or omitted by it under the provisions of this Indenture upon the faith
thereof.
SECTION
6.08.
Eligibility of Trustee
.
The
Trustee hereunder shall at all times be a U.S. Person that is a banking
corporation or national banking association organized and doing business under
the laws of the United States of America or any state thereof or of the District
of Columbia and authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least fifty million U.S. dollars
($50,000,000) and subject to supervision or examination by federal, state,
or
District of Columbia authority. If such corporation or national banking
association publishes reports of condition at least annually, pursuant to law
or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section 6.08 the combined capital and surplus of such
corporation or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent records of condition so
published.
The
Company may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee,
notwithstanding that such corporation or national banking association shall
be
otherwise eligible and qualified under this Article.
In
case
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 6.08, the Trustee shall resign immediately in the
manner and with the effect specified in Section 6.09.
If
the
Trustee has or shall acquire any "conflicting interest" within the meaning
of §
310(b) 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
this Indenture.
SECTION
6.09.
Resignation or Removal of Trustee, Calculation Agent, Paying Agent or
Debt Security Registrar
.
(a)
The
Trustee, or any trustee or trustees hereafter appointed, the Calculation Agent,
the Paying Agent and any Debt Security Registrar may at any time resign by
giving written notice of such resignation to the Company and by mailing notice
thereof, at the Company's expense, to the Securityholders at their addresses
as
they shall appear on the Debt Security Register. Upon receiving such notice
of
resignation, the Company shall promptly appoint a successor or successors by
written instrument, in duplicate, executed by order of its Board of Directors,
one copy of which instrument shall be delivered to the resigning party and
one
copy to the successor. If no successor shall have been so appointed and have
accepted appointment within 30 days after the mailing of such notice of
resignation to the affected Securityholders, the resigning party may petition
any court of competent jurisdiction for the appointment of a successor, or
any
Securityholder who has been a bona fide holder of a Debt Security or Debt
Securities for at least six months may, subject to the provisions of Section
5.09, on behalf of himself or herself and all others similarly situated,
petition any such court for the appointment of a successor. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor.
(b)
In
case
at any time any of the following shall occur:
(1)
the
Trustee shall fail to comply with the provisions of the last paragraph of
Section 6.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Debt Security or Debt
Securities for at least six months,
(2)
the
Trustee shall cease to be eligible in accordance with the provisions of Section
6.08 and shall fail to resign after written request therefor by the Company
or
by any such Securityholder, or
(3)
the
Trustee shall become incapable of acting, or shall be adjudged 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, the Company may remove the Trustee and appoint a successor
Trustee by written instrument, in duplicate, executed by order of the Board
of
Directors, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor Trustee, or, subject to the provisions
of
Section 5.09, if no successor Trustee shall have been so appointed and have
accepted appointment within 30 days of the occurrence of any of (1), (2) or
(3)
above, any Securityholder who has been a bona fide holder of a Debt Security
or
Debt Securities for at least six months may, on behalf of himself or herself
and
all others similarly situated, petition any court of competent jurisdiction
for
the removal of the Trustee and the appointment of a successor Trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor Trustee.
(c)
Upon
prior written notice to the Company and the Trustee, the holders of a majority
in aggregate principal amount of the Debt Securities at the time outstanding
may
at any time remove the Trustee and nominate a successor Trustee, which shall
be
deemed appointed as successor Trustee unless within ten Business Days after
such
nomination the Company objects thereto, in which case or in the case of a
failure by such Securityholders to nominate a successor Trustee, the Trustee
so
removed or any Securityholder, upon the terms and conditions and otherwise
as in
subsection (a) of this Section 6.09 provided, may petition any court of
competent jurisdiction for an appointment of a successor.
(d)
Any
resignation or removal of the Trustee, the Calculation Agent, the Paying
Agent
and any Debt Security Registrar and appointment of a successor pursuant to
any
of the provisions of this Section 6.09 shall become effective upon acceptance
of
appointment by the successor as provided in Section 6.10.
SECTION
6.10.
Acceptance by Successor
.
Any
successor Trustee, Calculation Agent, Paying Agent or Debt Security Registrar
appointed as provided in Section 6.09 shall execute, acknowledge and deliver
to
the Company and to its predecessor an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the retiring party
shall
become effective and such successor, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations with respect to the Debt Securities of its predecessor hereunder,
with like effect as if originally named herein; but, nevertheless, on the
written request of the Company or of the successor, the party ceasing to
act
shall, upon payment of the amounts then due it pursuant to the provisions
of
Section 6.06, execute and deliver an instrument transferring to such successor
all the rights and powers of the party so ceasing to act and shall duly assign,
transfer and deliver to such successor all property and money held by such
retiring party hereunder. Upon reasonable request of any such successor,
the
Company shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor all such rights and
powers. Any party ceasing to act shall, nevertheless, retain a lien upon
all
property or funds held or collected to secure any amounts then due it pursuant
to the provisions of Section 6.06.
If
a
successor Trustee is appointed, the Company, the retiring Trustee and the
successor Trustee shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable
to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Debt Securities as to which the predecessor Trustee is
not
retiring shall continue to be vested in the predecessor Trustee, and shall
add
to or change any of the provisions of this Indenture as shall be necessary
to
provide for or facilitate the administration of the Trust hereunder by more
than
one Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and
that
each such Trustee shall be Trustee of a trust or trusts hereunder separate
and
apart from any trust or trusts hereunder administered by any other such
Trustee.
No
successor Trustee shall accept appointment as provided in this Section 6.10
unless at the time of such acceptance such successor Trustee shall be eligible
and qualified under the provisions of Section 6.08.
In
no
event shall a retiring Trustee, Calculation Agent, Paying Agent or Debt Security
Registrar be liable for the acts or omissions of any successor
hereunder.
Upon
acceptance of appointment by a successor Trustee, Calculation Agent, Paying
Agent or Debt Security Registrar as provided in this Section 6.10, the Company
shall mail notice of the succession to the Securityholders at their addresses
as
they shall appear on the Debt Security Register. If the Company fails to mail
such notice within ten Business Days after
the
acceptance of appointment by the successor, the successor shall cause such
notice to be mailed at the expense of the Company.
SECTION
6.11.
Succession by Merger, etc.
Any
Person into which the Trustee may be merged or converted or with which it
may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding
to
all or substantially all of the corporate trust business of the Trustee,
shall
be the successor of the Trustee hereunder without the execution or filing
of any
paper or any further act on the part of any of the parties hereto;
provided
,
that
such Person shall be otherwise eligible and qualified under this
Article.
In
case
at the time such successor to the Trustee shall succeed to the trusts created
by
this Indenture any of the Debt Securities shall have been authenticated but
not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor Trustee, and deliver such Debt Securities
so
authenticated; and in case at that time any of the Debt Securities shall not
have been authenticated, any successor to the Trustee may authenticate such
Debt
Securities either in the name of any predecessor hereunder or in the name of
the
successor Trustee; and in all such cases such certificates shall have the full
force which it is anywhere in the Debt Securities or in this Indenture provided
that the certificate of the Trustee shall have;
provided
,
however
,
that
the right to adopt the certificate of authentication of any predecessor Trustee
or authenticate Debt Securities in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or
consolidation.
SECTION
6.12.
Authenticating Agents
.
There
may
be one or more Authenticating Agents appointed by the Trustee upon the request
of the Company with power to act on its behalf and subject to its direction
in
the authentication and delivery of Debt Securities issued upon exchange or
registration of transfer thereof as fully to all intents and purposes as though
any such Authenticating Agent had been expressly authorized to authenticate
and
deliver Debt Securities; provided, that the Trustee shall have no liability
to
the Company for any acts or omissions of the Authenticating Agent with respect
to the authentication and delivery of Debt Securities. Any such Authenticating
Agent shall at all times be a Person organized and doing business under the
laws
of the United States or of any state or territory thereof or of the District
of
Columbia authorized under such laws to act as Authenticating Agent, having
a
combined capital and surplus of at least $50,000,000 and being subject to
supervision or examination by federal, state, territorial or District of
Columbia authority. If such Person publishes reports of condition at least
annually pursuant to law or the requirements of such authority, then for the
purposes of this Section 6.12 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 an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
it
shall resign immediately in the manner and with the effect herein specified
in
this Section.
Any
Person into which any Authenticating Agent may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
consolidation or conversion to which any Authenticating Agent shall be a party,
or any Person succeeding to all
or
substantially all of the corporate trust business of any Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, if such successor
Person is otherwise eligible under this Section 6.12 without the execution
or
filing of any paper or any further act on the part of the parties hereto or
such
Authenticating Agent.
Any
Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent with respect to the Debt
Securities by giving written notice of termination to such Authenticating
Agent
and to the Company. Upon receiving such a notice of resignation or upon such
a
termination, or in case at any time any Authenticating Agent shall cease
to be
eligible under this Section 6.12, the Trustee may, and upon the request of
the
Company shall, promptly appoint a successor Authenticating Agent eligible
under
this Section 6.12, shall give written notice of such appointment to the Company
and shall mail notice of such appointment to all Securityholders as the names
and addresses of such Securityholders appear on the Debt Security Register.
Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities
with
respect to the Debt Securities of its predecessor hereunder, with like effect
as
if originally named as Authenticating Agent herein.
Other
than as provided in the Fee Agreement of even date herewith between Cohen &
Company, the Company and the Trustee, the Company agrees to pay to any
Authenticating Agent from time to time reasonable compensation for its services.
Any Authenticating Agent shall have no responsibility or liability for any
action taken by it as such in accordance with the directions of the Trustee
and
shall receive such reasonable indemnity as it may require against the costs,
expenses and liabilities incurred in furtherance of its duties under this
Section 6.12.
ARTICLE
VII
CONCERNING
THE SECURITYHOLDERS
SECTION
7.01.
Action by Securityholders
.
Whenever
in this Indenture it is provided that the holders of a specified percentage
in
aggregate principal amount of the Debt Securities or aggregate Liquidation
Amount of the Capital Securities may take any action (including the making
of
any demand or request, the giving of any notice, consent or waiver or the taking
of any other action), the fact that at the time of taking any such action the
holders of such specified percentage have joined therein may be evidenced (a)
by
any instrument or any number of instruments of similar tenor executed by such
Securityholders or holders of Capital Securities, as the case may be, in person
or by agent or proxy appointed in writing, or (b) by the record of such
Securityholders voting in favor thereof at any meeting of such Securityholders
duly called and held in accordance with the provisions of Article VIII or of
such holders of Capital Securities duly called and held in accordance with
the
provisions of the Declaration, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of such Securityholders or
holders of Capital Securities, as the case may be, or (d) by any other method
the Trustee deems satisfactory.
If
the Company shall solicit from the Securityholders
any request, demand, authorization, direction, notice, consent, waiver or other
action or revocation of the same, the Company may, at its option, as evidenced
by an Officers' Certificate, fix in advance a record date for such Debt
Securities for the determination of Securityholders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
action or revocation of the same, but the Company shall have no obligation
to do
so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action or revocation of the same
may
be given before or after the record date, but only the Securityholders of record
at the close of business on the record date shall be deemed to be
Securityholders for the purposes of determining whether holders of the requisite
proportion of outstanding Debt Securities have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver
or
other action or revocation of the same, and for that purpose the outstanding
Debt Securities shall be computed as of the record date;
provided
,
however
,
that no
such authorization, agreement or consent by such Securityholders on the record
date shall be deemed effective unless it shall become effective pursuant to
the
provisions of this Indenture not later than six months after the record
date.
SECTION
7.02.
Proof of Execution by Securityholders
.
Subject
to the provisions of Sections 6.01, 6.02 and 8.05, proof of the execution of
any
instrument by a Securityholder or such Securityholder's agent or proxy shall
be
sufficient if made in accordance with such reasonable rules and regulations
as
may be prescribed by the Trustee or in such manner as shall be satisfactory
to
the Trustee. The ownership of Debt Securities shall be proved by the Debt
Security Register or by a certificate of the Debt Security Registrar. The
Trustee may require such additional proof of any matter referred to in this
Section as it shall deem necessary.
The
record of any Securityholders' meeting shall be proved in the manner provided
in
Section 8.06.
SECTION
7.03.
Who Are Deemed Absolute Owners
.
Prior
to
due presentment for registration of transfer of any Debt Security, the Company,
the Trustee, any Authenticating Agent, any Paying Agent, any transfer agent
and
any Debt Security Registrar may deem the Person in whose name such Debt Security
shall be registered upon the Debt Security Register to be, and may treat such
Person as, the absolute owner of such Debt Security (whether or not such Debt
Security shall be overdue) for the purpose of receiving payment of or on account
of the principal of, premium, if any, and interest on such Debt Security and
for
all other purposes; and neither the Company nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any transfer agent nor any Debt
Security Registrar shall be affected by any notice to the contrary. All such
payments so made to any Securityholder for the time being or upon such
Securityholder's order shall be valid, and, to the extent of the sum or sums
so
paid, effectual to satisfy and discharge the liability for moneys payable upon
any such Debt Security.
SECTION
7.04.
Debt Securities Owned by Company Deemed Not
Outstanding
.
In
determining whether the holders of the requisite aggregate principal amount
of
Debt Securities have concurred in any direction, consent or waiver under
this
Indenture, Debt Securities which are owned by the Company or any other obligor
on the Debt Securities or by any Person directly or indirectly controlling
or
controlled by or under direct or indirect common control with the Company
(other
than the Trust) or any other obligor on the Debt Securities shall be disregarded
and deemed not to be outstanding for the purpose of any such determination;
provided
,
that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Debt Securities which
a
Responsible Officer of the Trustee actually knows are so owned shall be so
disregarded. Debt Securities so owned which have been pledged in good faith
may
be regarded as outstanding for the purposes of this Section 7.04 if the pledgee
shall establish to the satisfaction of the Trustee the pledgee's right to
vote
such Debt Securities and that the pledgee is not the Company or any such
other
obligor or Person directly or indirectly controlling or controlled by or
under
direct or indirect common control with the Company or any such other obligor.
In
the case of a dispute as to such right, any decision by the Trustee taken
upon
the advice of counsel shall be full protection to the
Trustee.
SECTION
7.05.
Revocation of Consents; Future Securityholders Bound
.
At
any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 7.01, of the taking of any action by the holders of the percentage
in
aggregate principal amount of the Debt Securities specified in this Indenture
in
connection with such action, any Securityholder (in cases where no record date
has been set pursuant to Section 7.01) or any holder as of an applicable record
date (in cases where a record date has been set pursuant to Section 7.01) of
a
Debt Security (or any Debt Security issued in whole or in part in exchange
or
substitution therefor) the serial number of which is shown by the evidence
to be
included in the Debt Securities the holders of which have consented to such
action may, by filing written notice with the Trustee at the Principal Office
of
the Trustee and upon proof of holding as provided in Section 7.02, revoke such
action so far as concerns such Debt Security (or so far as concerns the
principal amount represented by any exchanged or substituted Debt Security).
Except as aforesaid any such action taken by the holder of any Debt Security
shall be conclusive and binding upon such Securityholder and upon all future
holders and owners of such Debt Security, and of any Debt Security issued in
exchange or substitution therefor or on registration of transfer thereof,
irrespective of whether or not any notation in regard thereto is made upon
such
Debt Security or any Debt Security issued in exchange or substitution
therefor.
ARTICLE
VIII
SECURITYHOLDERS'
MEETINGS
SECTION
8.01.
Purposes of Meetings
.
A
meeting
of Securityholders may be called at any time and from time to time pursuant
to
the provisions of this Article VIII for any of the following
purposes:
(a)
to
give
any notice to the Company or to the Trustee, or to give any directions to
the
Trustee, or to consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be taken by
Securityholders pursuant to any of the provisions of Article V;
(b)
to
remove
the Trustee and nominate a successor trustee pursuant to the provisions of
Article VI;
(c)
to
consent to the execution of an indenture or indentures supplemental hereto
pursuant to the provisions of Section 9.02; or
(d)
to
take
any other action authorized to be taken by or on behalf of the holders of
any
specified aggregate principal amount of such Debt Securities under any other
provision of this Indenture or under applicable law.
SECTION
8.02.
Call of Meetings by Trustee
.
The
Trustee may at any time call a meeting of Securityholders to take any action
specified in Section 8.01, to be held at such time and at such place in Chicago,
Illinois as the Trustee shall determine. Notice of every meeting of the
Securityholders, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be mailed
to Securityholders affected at their addresses as they shall appear on the
Debt
Securities Register. Such notice shall be mailed not less than 20 nor more
than
180 days prior to the date fixed for the meeting.
SECTION
8.03.
Call of Meetings by Company or Securityholders
.
In
case
at any time the Company pursuant to a Board Resolution, or the holders of at
least 10% in aggregate principal amount of the Debt Securities, as the case
may
be, then outstanding, shall have requested the Trustee to call a meeting of
Securityholders, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such request,
then the Company or such Securityholders may determine the time and the place
for such meeting and may call such meeting to take any action authorized in
Section 8.01, by mailing notice thereof as provided in Section
8.02.
SECTION
8.04.
Qualifications for Voting
.
To
be
entitled to vote at any meeting of Securityholders a Person shall be (a) a
holder of one or more Debt Securities with respect to which the meeting is
being
held or (b) a Person appointed by an instrument in writing as proxy by a holder
of one or more such Debt Securities. The only Persons who shall be entitled
to
be present or to speak at any meeting of Securityholders shall be the Persons
entitled to vote at such meeting and their counsel and any representatives
of
the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION
8.05.
Regulations
.
Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Securityholders,
in
regard to proof of the holding of Debt Securities and of the appointment
of
proxies, and in regard to the appointment and duties of inspectors of votes,
the
submission and examination of proxies, certificates and other evidence of
the
right to vote, and such other matters concerning the conduct of the meeting
as
it shall deem appropriate.
The
Trustee shall, by an instrument in writing, appoint a temporary chairman
of the
meeting, unless the meeting shall have been called by the Company or by
Securityholders as provided in Section 8.03, in which case the Company or
the
Securityholders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary
of
the meeting shall be elected by majority vote at the
meeting.
Subject
to the provisions of Section 7.04, at any meeting each Securityholder with
respect to which such meeting is being held or proxy therefor shall be entitled
to one vote for each $1,000 principal amount of Debt Securities held or
represented by such Securityholder;
provided
,
however
,
that no
vote shall be cast or counted at any meeting in respect of any Debt Security
challenged as not outstanding and ruled by the chairman of the meeting to be
not
outstanding. The chairman of the meeting shall have no right to vote other
than
by virtue of Debt Securities held by such chairman or instruments in writing
as
aforesaid duly designating such chairman as the Person to vote on behalf of
other Securityholders. Any meeting of Securityholders duly called pursuant
to
the provisions of Section 8.02 or 8.03 may be adjourned from time to time by
a
majority of those present, whether or not constituting a quorum, and the meeting
may be held as so adjourned without further notice.
SECTION
8.06.
Voting
.
The
vote
upon any resolution submitted to any meeting of Securityholders with respect
to
which such meeting is being held shall be by written ballots on which shall
be
subscribed the signatures of such Securityholders or of their representatives
by
proxy and the serial number or numbers of the Debt Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in triplicate of all votes cast at the meeting.
A
record in duplicate of the proceedings of each meeting of Securityholders shall
be prepared by the secretary of the meeting and there shall be attached to
said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 8.02. The record shall show the serial
numbers of the Debt Securities voting in favor of or against any resolution.
The
record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to
the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting. Any record so signed
and verified shall be conclusive evidence of the matters therein stated.
SECTION
8.07.
Quorum; Actions
.
The
Persons entitled to vote a majority in outstanding principal amount of the
Debt
Securities shall constitute a quorum for a meeting of Securityholders;
provided
,
however
,
that if
any action is to be taken at such meeting with respect to a consent, waiver,
request, demand, notice, authorization, direction or other action which may
be
given by the holders of not less than a specified percentage in outstanding
principal amount of the Debt Securities, the Persons holding or representing
such specified percentage in outstanding principal amount of the Debt Securities
will constitute a quorum. In the absence of a quorum within 30 minutes of
the
time appointed for any such meeting, the meeting shall, if convened at the
request of Securityholders, be dissolved. In any other case the meeting may
be
adjourned for a period of not less than 10 days as determined by the permanent
chairman of the meeting prior to the adjournment of such meeting. In the
absence
of a quorum at any such adjourned meeting, such adjourned meeting may be
further
adjourned for a period of not less than 10 days as determined by the permanent
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided
in
Section 8.02, except that such notice need be given only once not less than
five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the outstanding principal amount of the
Debt
Securities which shall constitute a quorum.
Except
as
limited by the proviso in the first paragraph of Section 9.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is
present as aforesaid may be adopted by the affirmative vote of the holders
of
not less than a majority in outstanding principal amount of the Debt Securities;
provided
,
however
,
that,
except as limited by the proviso in the first paragraph of Section 9.02, any
resolution with respect to any consent, waiver, request, demand, notice,
authorization, direction or other action that this Indenture expressly provides
may be given by the holders of not less than a specified percentage in
outstanding principal amount of the Debt Securities may be adopted at a meeting
or an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid only by the affirmative vote of the holders of not less than such
specified percentage in outstanding principal amount of the Debt
Securities.
Any
resolution passed or decision taken at any meeting of Securityholders duly
held
in accordance with this Section shall be binding on all the Securityholders,
whether or not present or represented at the meeting.
SECTION
8.08.
Written Consent Without a Meeting
.
Whenever
under this Indenture, Securityholders are required or permitted to take any
action by vote, such action may be taken without a meeting on written consent,
setting forth the action so taken, signed by the Securityholders of all
outstanding Debt Securities entitled to vote thereon. No consent shall be
effective to take the action referred to therein unless, within sixty days
of
the earliest dated consent delivered in the manner required by this paragraph
to
the Trustee, written consents signed by a sufficient number of Securityholders
to take action are delivered to the Trustee at its Principal Office. Delivery
made to the Trustee at its Principal Office, shall be by hand or by certificated
or registered mail, return receipt requested. Written
consent
thus given by the Securityholders of such number of Debt Securities as is
required hereunder, shall have the same effect as a valid vote of
Securityholders of such number of Debt Securities.
ARTICLE
IX
SUPPLEMENTAL
INDENTURES
SECTION
9.01.
Supplemental Indentures without Consent of
Securityholders
.
The
Company, when authorized by a Board Resolution, and the Trustee may from
time to
time and at any time enter into an indenture or indentures supplemental hereto,
without the consent of the Securityholders, for one or more of the following
purposes:
(a)
to
evidence the succession of another Person to the Company, or successive
successions, and the assumption by the successor Person of the covenants,
agreements and obligations of the Company, pursuant to Article XI
hereof;
(b)
to
add to
the covenants of the Company such further covenants, restrictions or conditions
for the protection of the Securityholders as the Board of Directors shall
consider to be for the protection of such Securityholders, and to make the
occurrence, or the occurrence and continuance, of a Default in any of such
additional covenants, restrictions or conditions a Default or an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth;
provided
,
however
,
that in
respect of any such additional covenant, restriction or condition such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case
of
other defaults) or may provide for an immediate enforcement upon such default
or
may limit the remedies available to the Trustee upon such default;
(c)
to
cure
any ambiguity or to correct or supplement any provision contained herein or
in
any supplemental indenture which may be defective or inconsistent with any
other
provision contained herein or in any supplemental indenture, or to make or
amend
such other provisions in regard to matters or questions arising under this
Indenture;
provided
,
that
any such action shall not adversely affect the interests of the
Securityholders;
(d)
to
add
to, delete from, or revise the terms of Debt Securities, including, without
limitation, any terms relating to the issuance, exchange, registration or
transfer of Debt Securities, including to provide for transfer procedures and
restrictions substantially similar to those applicable to the Capital
Securities, as required by Section 2.05 (for purposes of assuring that no
registration of Debt Securities is required under the Securities Act of 1933,
as
amended); provided, that any such action shall not adversely affect the
interests of the holders of the Debt Securities then outstanding (it being
understood, for purposes of this proviso, that transfer restrictions on Debt
Securities substantially similar to those applicable to Capital Securities
shall
not be deemed to adversely affect the Securityholders);
(e)
to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Debt Securities and to add to or change any of
the
provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to
the
requirements of Section 6.10;
(f)
to
make
any change (other than as elsewhere provided in this paragraph) that does
not
adversely affect the rights of any Securityholder in any material respect;
or
(g)
to
provide for the issuance of and establish the form and terms and conditions
of
the Debt Securities, to establish the form of any certifications required
to be
furnished pursuant to the terms of this Indenture or the Debt Securities,
or to
add to the rights of the Securityholders.
The
Trustee is hereby authorized to join with the Company in the execution of
any
such supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall
not be
obligated to, but may in its discretion, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any
supplemental indenture authorized by the provisions of this Section 9.01 may
be
executed by the Company and the Trustee without the consent of the
Securityholders at the time outstanding, notwithstanding any of the provisions
of Section 9.02.
SECTION
9.02.
Supplemental Indentures with Consent of
Securityholders
.
With
the
consent (evidenced as provided in Section 7.01) of the holders of not less
than
a majority in aggregate principal amount of the Debt Securities at the time
outstanding affected by such supplemental indenture, the Company, when
authorized by a Board Resolution, and the Trustee may from time to time and
at
any time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act, then in effect, applicable
to indentures qualified thereunder) for the purpose of adding any provisions
to
or changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or of modifying in any manner the rights of
the
Securityholders;
provided
,
however
,
that no
such supplemental indenture shall without such consent of the holders of each
Debt Security then outstanding and affected thereby (i) change the Maturity
Date
of any Debt Security, or reduce the principal amount thereof or any premium
thereon, or reduce the rate (or manner of calculation of the rate) or extend
the
time of payment of interest thereon, or reduce (other than as a result of the
maturity or earlier redemption of any such Debt Security in accordance with
the
terms of this Indenture and such Debt Security) or increase the aggregate
principal amount of Debt Securities then outstanding, or change any of the
redemption provisions, or make the principal thereof or any interest or premium
thereon payable in any coin or currency other than United States Dollars, or
impair or affect the right of any Securityholder to institute suit for payment
thereof or impair the right of repayment, if any, at the option of the
Securityholder, or (ii) reduce the aforesaid percentage of Debt Securities
the
holders of which are required to consent to any such supplemental indenture;
and
provided
,
further
,
that if
the Debt Securities are held by the Trust or a trustee of such trust, such
supplemental indenture shall not be effective until the holders of a majority
in
Liquidation Amount of the outstanding Capital
Securities
shall have consented to such supplemental indenture;
provided
,
further
,
that if
the consent of the Securityholder of each outstanding Debt Security is required,
such supplemental indenture shall not be effective until each holder of the
outstanding Capital Securities shall have consented to such supplemental
indenture.
Upon
the
request of the Company accompanied by a Board Resolution authorizing the
execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Securityholders (and holders of Capital
Securities, if required) as aforesaid, the Trustee shall join with the Company
in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion,
but
shall not be obligated to, enter into such supplemental indenture.
Promptly
after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Trustee shall transmit by
mail,
first class postage prepaid, a notice, prepared by the Company, setting forth
in
general terms the substance of such supplemental indenture, to the
Securityholders as their names and addresses appear upon the Debt Security
Register. Any failure of the Trustee to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
It
shall
not be necessary for the consent of the Securityholders under this Section
9.02
to approve the particular form of any proposed supplemental indenture, but
it
shall be sufficient if such consent shall approve the substance
thereof.
SECTION
9.03.
Effect of Supplemental Indentures
.
Upon
the
execution of any supplemental indenture pursuant to the provisions of this
Article IX, this Indenture shall be and be deemed to be modified and amended
in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the Securityholders shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments
and all the terms and conditions of any such supplemental indenture shall be
and
be deemed to be part of the terms and conditions of this Indenture for any
and
all purposes.
SECTION
9.04.
Notation on Debt Securities
.
Debt
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article IX may bear a notation
as
to any matter provided for in such supplemental indenture. If the Company or
the
Trustee shall so determine, new Debt Securities so modified as to conform,
in
the opinion of the Board of Directors of the Company, to any modification of
this Indenture contained in any such supplemental indenture may be prepared
and
executed by the Company, authenticated by the Trustee or the Authenticating
Agent and delivered in exchange for the Debt Securities then
outstanding.
SECTION
9.05.
Evidence of Compliance of Supplemental Indenture to be furnished to
Trustee
.
The
Trustee, subject to the provisions of Sections 6.01 and 6.02, shall, in addition
to the documents required by Section 14.06, receive an Officers' Certificate
and
an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant hereto complies with the requirements of this Article IX.
The
Trustee shall receive an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article IX is authorized
or
permitted by, and conforms to, the terms of this Article IX and that it is
proper for the Trustee under the provisions of this Article IX to join in
the
execution thereof.
ARTICLE
X
REDEMPTION
OF SECURITIES
SECTION
10.01.
Optional Redemption
.
At
any
time the Company shall have the right, subject to the receipt by the Company
of
prior approval from any regulatory authority with jurisdiction over the Company
if such approval is then required under applicable capital guidelines or
policies of such regulatory authority, to redeem the Debt Securities, in
whole
or (provided that all accrued and unpaid interest has been paid on all Debt
Securities for all Interest Payment Periods terminating on or prior to such
date) from time to time in part, on any March 15, June 15, September 15 or
December 15 on or after September 15, 2012 (the "Redemption Date"), at the
Redemption Price.
SECTION
10.02.
Special Event Redemption
.
If
a
Special Event shall occur and be continuing, the Company shall have the right,
subject to the receipt by the Company of prior approval from any regulatory
authority with jurisdiction over the Company if such approval is then required
under applicable capital guidelines or policies of such regulatory authority,
to
redeem the Debt Securities, in whole or in part, at any time within 90 days
following the occurrence of such Special Event (the "Special Redemption Date"),
at the Special Redemption Price.
SECTION
10.03.
Notice of Redemption; Selection of Debt Securities
.
In
case
the Company shall desire to exercise the right to redeem all, or, as the case
may be, any part of the Debt Securities, it shall fix a date for redemption
and
shall mail, or cause the Trustee to mail (at the expense of the Company) a
notice of such redemption at least 30 and not more than 60 days prior to the
date fixed for redemption to the Securityholders so to be redeemed as a whole
or
in part at their last addresses as the same appear on the Debt Security
Register. Such mailing shall be by first class mail. The notice if mailed in
the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Securityholder receives such notice. In any case, failure
to
give such notice by mail or any defect in the notice to the holder of any Debt
Security designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Debt
Security.
Each
such
notice of redemption shall specify the CUSIP number, if any, of the Debt
Securities to be redeemed, the date fixed for redemption, the redemption
price
(or manner of calculation of the price) at which Debt Securities are to be
redeemed, the place or places of payment, that payment will be made upon
presentation and surrender of such Debt Securities, that interest accrued
to the
date fixed for redemption will be paid as specified in said notice, and that
on
and after said date interest thereon or on the portions thereof to be redeemed
will cease to accrue. If less than all the Debt Securities are to be redeemed
the notice of redemption shall specify the numbers of the Debt Securities
to be
redeemed. In case the Debt Securities are to be redeemed in part only, the
notice of redemption shall state the portion of the principal amount thereof
to
be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Debt Security, a new Debt Security or Debt Securities
in
principal amount equal to the unredeemed portion thereof will be
issued.
On
the
Business Day prior to the Redemption Date or the Special Redemption Date
specified in the notice of redemption given as provided in this Section,
the
Company will deposit with the Trustee or with one or more Paying Agents an
amount of money sufficient to redeem on the redemption date all the Debt
Securities so called for redemption at the appropriate redemption price,
together with unpaid interest accrued to such date.
The
Company will give the Trustee notice not less than 45 nor more than 60 days
prior to the Redemption Date as to the Redemption Price at which the Debt
Securities are to be redeemed and the aggregate principal amount of Debt
Securities to be redeemed and the Trustee shall select, in such manner as in
its
sole discretion it shall deem appropriate and fair, the Debt Securities or
portions thereof (in integral multiples of $1,000) to be redeemed.
SECTION
10.04.
Payment of Debt Securities Called for Redemption
.
If
notice
of redemption has been given as provided in Section 10.03, the Debt Securities
or portions of Debt Securities with respect to which such notice has been given
shall become due and payable on the Redemption Date or the Special Redemption
Date (as the case may be) and at the place or places stated in such notice
at
the applicable redemption price, together with interest accrued to the date
fixed for redemption, and on and after said Redemption Date or the Special
Redemption Date (unless the Company shall default in the payment of such Debt
Securities at the redemption price, together with unpaid interest accrued
thereon to said date) interest on the Debt Securities or portions of Debt
Securities so called for redemption shall cease to accrue. On presentation
and
surrender of such Debt Securities at a place of payment specified in said
notice, such Debt Securities or the specified portions thereof shall be paid
and
redeemed by the Company at the applicable redemption price, together with unpaid
interest accrued thereon to the Redemption Date or the Special Redemption Date
(as the case may be).
Upon
presentation of any Debt Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery
to
the holder thereof, at the expense of the Company, a new Debt Security or Debt
Securities of authorized denominations in principal amount equal to the
unredeemed portion of the Debt Security so presented.
ARTICLE
XI
CONSOLIDATION,
MERGER, SALE, CONVEYANCE AND LEASE
SECTION
11.01.
Company May Consolidate, etc., on Certain Terms
.
Nothing
contained in this Indenture or in the Debt Securities shall prevent any
consolidation or merger of the Company with or into any other corporation
or
corporations (whether or not affiliated with the Company) or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any sale, conveyance, transfer
or
other disposition of all or substantially all of the property or capital
stock
of the Company or its successor or successors to any other corporation (whether
or not affiliated with the Company, or its successor or successors) authorized
to acquire and operate the same;
provided
,
however
,
that
the Company hereby covenants and agrees that, (i) upon any such consolidation,
merger (where the Company is not the surviving corporation), sale, conveyance,
transfer or other disposition, the successor entity shall be a corporation
organized and existing under the laws of the United States or any state thereof
or the District of Columbia (unless such corporation has (1) agreed to make
all
payments due in respect of the Debt Securities or, if outstanding, the Capital
Securities and Capital Securities Guarantee without withholding or deduction
for, or on account of, any taxes, duties, assessments or other governmental
charges under the laws or regulations of the jurisdiction of organization
or
residence (for tax purposes) of such corporation or any political subdivision
or
taxing authority thereof or therein unless required by applicable law, in
which
case such corporation shall have agreed to pay such additional amounts as
shall
be required so that the net amounts received and retained by the Securityholders
or holders of Capital Securities, as the case may be, after payment of all
taxes
(including withholding taxes), duties, assessments or other governmental
charges, will be equal to the amounts that such Securityholders or holders
of
Capital Securities would have received and retained had no such taxes (including
withholding taxes), duties, assessments or other governmental charges been
imposed, (2) irrevocably and unconditionally consented and submitted to the
jurisdiction of any United States federal court or New York state court,
in each
case located in The City of New York, Borough of Manhattan, in respect of
any
action, suit or proceeding against it arising out of or in connection with
this
Indenture, the Debt Securities, the Capital Securities Guarantee or the
Declaration and irrevocably and unconditionally waived, to the fullest extent
permitted by law, any objection to the laying of venue in any such court
or that
any such action, suit or proceeding has been brought in an inconvenient forum
and (3) irrevocably appointed an agent in The City of New York for service
of
process in any action, suit or proceeding referred to in clause (2) above)
and
such corporation expressly assumes all of the obligations of the Company
under
the Debt Securities, this Indenture, the Capital Securities Guarantee and
the
Declaration and (ii) after giving effect to any such consolidation, merger,
sale, conveyance, transfer or other disposition, no Default or Event of Default
shall have occurred and be continuing.
SECTION
11.02.
Successor Entity to be Substituted
.
In
case
of any such consolidation, merger, sale, conveyance, transfer or other
disposition contemplated in Section 11.01 and upon the assumption by the
successor entity, by supplemental indenture, executed and delivered to the
Trustee and reasonably satisfactory in
form
to
the Trustee, of the due and punctual payment of the principal of and premium,
if
any, and interest on all of the Debt Securities and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed or observed by the Company, such successor entity
shall succeed to and be substituted for the Company, with the same effect as
if
it had been named herein as the Company, and thereupon the predecessor entity
shall be relieved of any further liability or obligation hereunder or upon
the
Debt Securities. Such successor entity thereupon may cause to be signed, and
may
issue either in its own name or in the name of the Company, any or all of the
Debt Securities issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee or the Authenticating Agent; and,
upon the order of such successor entity instead of the Company and subject
to
all the terms, conditions and limitations in this Indenture prescribed, the
Trustee or the Authenticating Agent shall authenticate and deliver any Debt
Securities which previously shall have been signed and delivered by the officers
of the Company, to the Trustee or the Authenticating Agent for authentication,
and any Debt Securities which such successor entity thereafter shall cause
to be
signed and delivered to the Trustee or the Authenticating Agent for that
purpose. All the Debt Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Debt Securities theretofore
or thereafter issued in accordance with the terms of this Indenture as though
all of such Debt Securities had been issued at the date of the execution
hereof.
SECTION
11.03.
Opinion of Counsel to be Given to Trustee
.
The
Trustee, subject to the provisions of Sections 6.01 and 6.02, shall receive,
in
addition to the Opinion of Counsel required by Section 9.05, an Opinion of
Counsel as conclusive evidence that any consolidation, merger, sale, conveyance,
transfer or other disposition, and any assumption, permitted or required by
the
terms of this Article XI complies with the provisions of this Article
XI.
ARTICLE
XII
SATISFACTION
AND DISCHARGE OF INDENTURE
SECTION
12.01.
Discharge of Indenture
.
When
(a)
the Company shall deliver to the Trustee for cancellation all Debt Securities
theretofore authenticated (other than any Debt Securities which shall have
been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.06) and not theretofore canceled, or (b) all the Debt Securities
not theretofore canceled or delivered to the Trustee for cancellation shall
have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the
Company shall deposit with the Trustee, in trust, funds, which shall be
immediately due and payable, sufficient to pay at maturity or upon redemption
all of the Debt Securities (other than any Debt Securities which shall have
been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section 2.06) not theretofore canceled or delivered to the Trustee for
cancellation, including principal and premium, if any, and interest due or
to
become due to such date of maturity or redemption date, as the case may be,
but
excluding, however, the amount of
any
moneys for the payment of principal of, and premium, if any, or interest on
the
Debt Securities (1) theretofore repaid to the Company in accordance with the
provisions of Section 12.04, or (2) paid to any state or to the District of
Columbia pursuant to its unclaimed property or similar laws, and if in the
case
of either clause (a) or clause (b) the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then this Indenture shall
cease to be of further effect except for the provisions of Sections 2.05, 2.06,
3.01, 3.02, 3.04, 6.06, 6.09 and 12.04 hereof, which shall survive until such
Debt Securities shall mature or are redeemed, as the case may be, and are paid
in full. Thereafter, Sections 6.06, 6.09 and 12.04 shall survive, and the
Trustee, on demand of the Company accompanied by 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, and at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture, the
Company, however, hereby agreeing to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Debt Securities.
SECTION
12.02.
Deposited Moneys to be Held in Trust by Trustee
.
Subject
to the provisions of Section 12.04, all moneys deposited with the Trustee
pursuant to Section 12.01 shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company
if
acting as its own Paying Agent), to the holders of the particular Debt
Securities for the payment of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal, and premium,
if any, and interest.
SECTION
12.03.
Paying Agent to Repay Moneys Held
.
Upon
the
satisfaction and discharge of this Indenture, all moneys then held by any Paying
Agent of the Debt Securities (other than the Trustee) shall, upon demand of
the
Company, be repaid to the Company or paid to the Trustee, and thereupon such
Paying Agent shall be released from all further liability with respect to such
moneys.
SECTION
12.04.
Return of Unclaimed Moneys
.
Any
moneys deposited with or paid to the Trustee or any Paying Agent for payment
of
the principal of, and premium, if any, or interest on Debt Securities and not
applied but remaining unclaimed by the Securityholders for two years after
the
date upon which the principal of, and premium, if any, or interest on such
Debt
Securities, as the case may be, shall have become due and payable, shall be
repaid to the Company by the Trustee or such Paying Agent on written demand;
and
the holder of any of the Debt Securities shall thereafter look only to the
Company for any payment which such Securityholder may be entitled to collect
and
all liability of the Trustee or such Paying Agent with respect to such moneys
shall thereupon cease.
ARTICLE
XIII
IMMUNITY
OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION
13.01.
Indenture and Debt Securities Solely Corporate
Obligations
.
No
recourse for the payment of the principal of or premium, if any, or interest
on
any Debt Security, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement
of
the Company in this Indenture or in any supplemental indenture, or in any
such
Debt Security, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer, director,
employee or agent, as such, past, present or future, of the Company or of
any
predecessor or successor corporation of the Company, either directly or through
the Company or any successor corporation of the Company, whether by virtue
of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all
such
liability is hereby expressly waived and released as a condition of, and
as a
consideration for, the execution of this Indenture and the issue of the Debt
Securities.
ARTICLE
XIV
MISCELLANEOUS
PROVISIONS
SECTION
14.01.
Successors
.
All
the
covenants, stipulations, promises and agreements of the Company contained in
this Indenture shall bind its successors and assigns whether so expressed or
not.
SECTION
14.02.
Official Acts by Successor Entity
.
Any
act
or proceeding by any provision of this Indenture authorized or required to
be
done or performed by any board, committee or officer of the Company shall and
may be done and performed with like force and effect by the like board,
committee, officer or other authorized Person of any entity that shall at the
time be the lawful successor of the Company.
SECTION
14.03.
Surrender of Company Powers
.
The
Company by instrument in writing executed by authority of 2/3 (two-thirds)
of
its Board of Directors and delivered to the Trustee may surrender any of the
powers reserved to the Company and thereupon such power so surrendered shall
terminate both as to the Company and as to any permitted successor.
SECTION
14.04.
Addresses for Notices, etc.
Any
notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the Securityholders on
the
Company may be given or served in writing, duly signed by the party giving
such
notice, and shall be delivered by facsimile (which shall be followed by notice
delivered or mailed by first class mail) or mailed by first class mail to the
Company at:
Wilshire
Bancorp, Inc.
3200
Wilshire Boulevard, Suite 1400
Los
Angeles, California 90010
Attention:
Elaine S. Jeon
Any
notice, direction, request or demand by any Securityholder or the Company
to or
upon the Trustee shall be deemed to have been sufficiently given or made,
for
all purposes, if given or made in writing at the office of LaSalle Bank National
Association at:
135
South
LaSalle Street, Suite 1511
Chicago,
Illinois 60603
Attn:
CDO
Trust Services Group - Wilshire Statutory Trust IV
SECTION
14.05.
Governing Law
.
This
Indenture and the Debt Securities shall each be governed by, and construed
in
accordance with, the laws of the State of New York, without regard to conflict
of laws principles of said State other than Section 5-1401 of the New York
General Obligations Law.
SECTION
14.06.
Evidence of Compliance with Conditions Precedent
.
Upon
any
application or demand by the Company to the Trustee to take any action under
any
of the provisions of this Indenture, the Company shall furnish to the Trustee
an
Officers' Certificate stating that in the opinion of the signers all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent have been complied with
(except that no such Opinion of Counsel is required to be furnished to the
Trustee in connection with the authentication and issuance of Debt Securities
issued on the date of this Indenture).
Each
certificate or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant provided for
in
this Indenture (except certificates delivered pursuant to Section 3.05) shall
include (a) a statement that the person making such certificate or opinion
has
read such covenant or condition and the definitions relating thereto; (b) 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; (c) a statement that, in the opinion of such person, 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 (d) a statement as to whether or not, in the opinion
of
such person, such condition or covenant has been complied with.
SECTION
14.07.
Non-Business Days
.
Notwithstanding
anything to the contrary contained herein, if any Interest Payment Date, other
than on the Maturity Date, any Redemption Date or the Special Redemption Date,
falls on a day that is not a Business Day, then any interest payable will be
paid on, and such Interest Payment Date will be moved to, the next succeeding
Business Day, and additional
interest
will accrue for each day that such payment is delayed as a result thereof.
If
the Maturity Date, Redemption Date or Special Redemption Date falls on a day
that is not a Business Day, then the principal, premium, if any, and/or interest
payable on such date will be paid on the next succeeding Business Day, and
no
additional interest will accrue (except that, if such Business Day falls in
the
next calendar year, such payment will be made on the immediately preceding
Business Day).
SECTION
14.08.
Table of Contents, Headings, etc
.
The
table
of contents and the titles and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to
be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION
14.09.
Execution in Counterparts
.
This
Indenture may be executed in any number of counterparts, each of which shall
be
an original, but such counterparts shall together constitute but one and the
same instrument.
SECTION
14.10.
Severability
.
In
case
any one or more of the provisions contained in this Indenture or in the Debt
Securities shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of this Indenture or of such Debt Securities, but this
Indenture and such Debt Securities shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or
therein.
SECTION
14.11.
Assignment
.
Subject
to Article XI, the Company will have the right at all times to assign any of
its
rights or obligations under this Indenture and the Debt Securities to a direct
or indirect wholly owned Subsidiary of the Company;
provided
,
however
,
that,
in the event of any such assignment, the Company will remain liable for all
such
obligations. Subject to the foregoing, this Indenture is binding upon and inures
to the benefit of the parties hereto and their respective successors and
assigns. This Indenture may not otherwise be assigned by the parties
thereto.
SECTION
14.12.
Acknowledgment of Rights
.
The
Company acknowledges that, with respect to any Debt Securities held by the
Trust
or the Institutional Trustee of the Trust, if the Institutional Trustee of
the
Trust fails to enforce its rights under this Indenture as the Securityholder
held as the assets of the Trust after the holders of a majority in Liquidation
Amount of the Capital Securities of the Trust have so directed in writing such
Institutional Trustee, a holder of record of such Capital Securities may to
the
fullest extent permitted by law institute legal proceedings directly against
the
Company to enforce such Institutional Trustee's rights under this Indenture
without first instituting any legal proceedings against such Institutional
Trustee or any other Person. Notwithstanding the foregoing, if an Event of
Default has occurred and is continuing and such event is attributable to
the
failure of the Company to pay interest (or premium, if any) or principal on
the
Debt Securities on the date such interest (or premium, if any) or principal
is
otherwise due and payable (or in the case of redemption, on the redemption
date), the Company acknowledges that a holder of record of Capital Securities
of
the Trust may directly institute a proceeding against the Company for
enforcement of payment to such holder directly of the principal of (or premium,
if any) or interest on the Debt Securities having an aggregate principal amount
equal to the aggregate Liquidation Amount of the Capital Securities of such
holder on or after the respective due date specified in the Debt
Securities.
ARTICLE
XV
SUBORDINATION
OF DEBT SECURITIES
SECTION
15.01.
Agreement to Subordinate
.
The
Company covenants and agrees, and each holder of Debt Securities issued
hereunder and under any supplemental indenture (the "Additional Provisions")
by
such Securityholder's acceptance thereof likewise covenants and agrees, that
all
Debt Securities shall be issued subject to the provisions of this Article XV;
and each Securityholder, whether upon original issue or upon transfer or
assignment thereof, accepts and agrees to be bound by such
provisions.
The
payment by the Company of the payments due on all Debt Securities issued
hereunder and under any Additional Provisions shall, to the extent and in the
manner hereinafter set forth, be subordinated and junior in right of payment
to
the prior payment in full of all Senior Indebtedness of the Company, whether
outstanding at the date of this Indenture or thereafter incurred.
No
provision of this Article XV shall prevent the occurrence of any Default or
Event of Default hereunder.
SECTION
15.02.
Default on Senior Indebtedness
.
In
the
event and during the continuation of any default by the Company in the payment
of principal, premium, interest or any other payment due on any Senior
Indebtedness of the Company following any applicable grace period, or in the
event that the maturity of any Senior Indebtedness of the Company has been
accelerated because of a default, and such acceleration has not been rescinded
or canceled and such Senior Indebtedness has not been paid in full, then, in
either case, no payment shall be made by the Company with respect to the
payments due on the Debt Securities.
In
the
event that, notwithstanding the foregoing, any payment shall be received by
the
Trustee when such payment is prohibited by the preceding paragraph of this
Section 15.02, such payment shall, subject to Section 15.06, be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness or their respective representatives, or to the trustee
or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to
the
extent that the holders of the Senior Indebtedness (or their representative
or
representatives or a trustee) notify the Trustee in writing within 90 days
of
such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
SECTION
15.03.
Liquidation; Dissolution; Bankruptcy
.
Upon
any
payment by the Company or distribution of assets of the Company of any kind
or
character, whether in cash, property or securities, to creditors upon any
dissolution or winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership
or
other proceedings, all amounts due upon all Senior Indebtedness of the Company
shall first be paid in full, or payment thereof provided for in money in
accordance with its terms, before any payment is made by the Company on the
Debt
Securities; and upon any such dissolution or winding-up or liquidation or
reorganization, any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities,
to
which the Securityholders or the Trustee would be entitled to receive from
the
Company, except for the provisions of this Article XV, shall be paid by the
Company, or by any receiver, trustee in bankruptcy, liquidating trustee, agent
or other Person making such payment or distribution, or by the Securityholders
or by the Trustee under this Indenture if received by them or it, directly
to
the holders of Senior Indebtedness of the Company (pro rata to such holders
on
the basis of the respective amounts of Senior Indebtedness held by such holders,
as calculated by the Company) or their representative or representatives, or
to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior Indebtedness
in
full, in money or money's worth, after giving effect to any concurrent payment
or distribution to or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the Securityholders.
In
the
event that, notwithstanding the foregoing, any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities, prohibited by the foregoing, shall be received by the Trustee before
all Senior Indebtedness of the Company is paid in full, or provision is made
for
such payment in money in accordance with its terms, such payment or distribution
shall be held in trust for the benefit of and shall be paid over or delivered
to
the holders of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture pursuant
to
which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective interests may appear, as calculated by the Company, for
application to the payment of all Senior Indebtedness of the Company remaining
unpaid to the extent necessary to pay such Senior Indebtedness in full in money
in accordance with its terms, after giving effect to any concurrent payment
or
distribution to or for the benefit of the holders of such Senior
Indebtedness.
For
purposes of this Article XV, the words "cash, property or securities" shall
not
be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided
for
by a plan of reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article XV with respect
to
the Debt Securities to the payment of all Senior Indebtedness of the Company,
that may at the time be outstanding,
provided
,
that
(a) such Senior Indebtedness is assumed by the new corporation, if any,
resulting from any such reorganization or readjustment,
and
(b)
the rights of the holders of such Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company following the
conveyance, transfer or other disposition of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article XI of this Indenture shall not be deemed
a dissolution, winding-up, liquidation or reorganization for the purposes of
this Section 15.03 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions stated
in Article XI of this Indenture. Nothing in Section 15.02 or in this
Section 15.03 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 6.06 of this Indenture.
SECTION
15.04.
Subrogation
.
Subject
to the payment in full of all Senior Indebtedness of the Company, the
Securityholders shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to such Senior Indebtedness until all
payments due on the Debt Securities shall be paid in full; and, for the purposes
of such subrogation, no payments or distributions to the holders of such Senior
Indebtedness of any cash, property or securities to which the Securityholders
or
the Trustee would be entitled except for the provisions of this Article XV,
and
no payment over pursuant to the provisions of this Article XV to or for the
benefit of the holders of such Senior Indebtedness by Securityholders or the
Trustee, shall, as between the Company, its creditors other than holders of
Senior Indebtedness of the Company, and the Securityholders be deemed to be
a
payment or distribution by the Company to or on account of such Senior
Indebtedness. It is understood that the provisions of this Article XV are and
are intended solely for the purposes of defining the relative rights of the
Securityholders, on the one hand, and the holders of such Senior Indebtedness,
on the other hand.
Nothing
contained in this Article XV or elsewhere in this Indenture, any Additional
Provisions or in the Debt Securities is intended to or shall impair, as between
the Company, its creditors other than the holders of Senior Indebtedness of
the
Company, and the Securityholders, the obligation of the Company, which is
absolute and unconditional, to pay to the Securityholders all payments on the
Debt Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of
the
Securityholders and creditors of the Company, other than the holders of Senior
Indebtedness of the Company, nor shall anything herein or therein prevent the
Trustee or the holder of any Debt Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article XV of the holders of such Senior
Indebtedness in respect of cash, property or securities of the Company received
upon the exercise of any such remedy.
Upon
any
payment or distribution of assets of the Company referred to in this Article
XV,
the Trustee, subject to the provisions of Article VI of this Indenture, and
the
Securityholders shall be entitled to conclusively rely upon any order or decree
made by any court of competent jurisdiction in which such dissolution,
winding-up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidation trustee, agent
or other Person making such payment or distribution, delivered to the Trustee
or
to the Securityholders, for the purposes of ascertaining the Persons entitled
to
participate in such distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto
or
to this Article XV.
SECTION
15.05.
Trustee to Effectuate Subordination
.
Each
Securityholder by such Securityholder's acceptance thereof authorizes and
directs the Trustee on such Securityholder's behalf to take such action as
may
be necessary or appropriate to effectuate the subordination provided in this
Article XV and appoints the Trustee such Securityholder's attorney-in-fact
for
any and all such purposes.
SECTION
15.06.
Notice by the Company
.
The
Company shall give prompt written notice to a Responsible Officer of the Trustee
at the Principal Office of the Trustee of any fact known to the Company that
would prohibit the making of any payment of moneys to or by the Trustee in
respect of the Debt Securities pursuant to the provisions of this Article XV.
Notwithstanding the provisions of this Article
XV
or any
other provision of this Indenture or any Additional Provisions, the Trustee
shall not be charged with knowledge of the existence of any facts that would
prohibit the making of any payment of moneys to or by the Trustee in respect
of
the Debt Securities pursuant to the provisions of this Article XV, unless and
until a Responsible Officer of the Trustee at the Principal Office of the
Trustee shall have received written notice thereof from the Company or a holder
or holders of Senior Indebtedness or from any trustee therefor; and before
the
receipt of any such written notice, the Trustee, subject to the provisions
of
Article VI of this Indenture, shall be entitled in all respects to assume that
no such facts exist;
provided
,
however
,
that if
the Trustee shall not have received the notice provided for in this Section
15.06 at least two Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any) or interest
on
any Debt Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such
money and to apply the same to the purposes for which they were received, and
shall not be affected by any notice to the contrary that may be received by
it
within two Business Days prior to such date.
The
Trustee, subject to the provisions of Article VI of this Indenture, shall be
entitled to conclusively rely on the delivery to it of a written notice by
a
Person representing himself or herself to be a holder of Senior Indebtedness
of
the Company (or a trustee or representative on behalf of such holder) to
establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee or representative on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
such
Senior Indebtedness to participate in any payment or distribution pursuant
to
this Article XV, the Trustee may request such Person to furnish evidence to
the
reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, the extent to which such Person is entitled
to
participate in such payment or distribution and any other facts pertinent to
the
rights of such Person under this
Article
XV, and, if such evidence is not furnished, the Trustee may defer any payment
to
such Person pending judicial determination as to the right of such Person to
receive such payment.
SECTION
15.07.
Rights of the Trustee, Holders of Senior
Indebtedness
.
The
Trustee in its individual capacity shall be entitled to all the rights set
forth
in this Article XV in respect of any Senior Indebtedness at any time held
by it,
to the same extent as any other holder of Senior Indebtedness, and nothing
in
this Indenture or any Additional Provisions shall deprive the Trustee of
any of
its rights as such holder.
With
respect to the holders of Senior Indebtedness of the Company, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article XV, and no implied covenants
or
obligations with respect to the holders of such Senior Indebtedness shall be
read into this Indenture or any Additional Provisions against the Trustee.
The
Trustee shall not owe or be deemed to owe any fiduciary duty to the holders
of
such Senior Indebtedness and, subject to the provisions of Article VI of this
Indenture, the Trustee shall not be liable to any holder of such Senior
Indebtedness if it shall pay over or deliver to Securityholders, the Company
or
any other Person money or assets to which any holder of such Senior Indebtedness
shall be entitled by virtue of this Article XV or otherwise.
Nothing
in this Article XV shall apply to claims of, or payments to, the Trustee under
or pursuant to Section 6.06.
SECTION
15.08.
Subordination May Not Be Impaired
.
No
right
of any present or future holder of any Senior Indebtedness of the Company to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company,
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company, with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have
or
otherwise be charged with.
Without
in any way limiting the generality of the foregoing paragraph, the holders
of
Senior Indebtedness of the Company may, at any time and from time to time,
without the consent of or notice to the Trustee or the Securityholders, without
incurring responsibility to the Securityholders and without impairing or
releasing the subordination provided in this Article XV or the obligations
hereunder of the Securityholders to the holders of such Senior Indebtedness,
do
any one or more of the following: (a) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, such Senior
Indebtedness, or otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any agreement under which
such Senior Indebtedness is outstanding; (b) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Senior Indebtedness; (c) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (d) exercise or refrain from
exercising any rights against the Company, and any other Person.
LaSalle
Bank National Association, in its capacity as Trustee, hereby accepts the
trusts
in this Indenture declared and provided, upon the terms and conditions herein
above set forth.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed by their respective officers thereunto duly authorized, as of the
day
and year first above written.
Wilshire
Bancorp, Inc.
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By:
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Name:
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Title:
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LaSalle
Bank National Association, as Trustee
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By:
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Name:
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Title:
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EXHIBIT
A
FORM
OF JUNIOR SUBORDINATED DEBT SECURITY
DUE
2037
[
FORM
OF FACE OF SECURITY
]
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL
OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO THE COMPANY, (B) PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON THE HOLDER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE
IN
RELIANCE ON RULE 144A, (C) TO A "NON U.S. PERSON" IN AN "OFFSHORE TRANSACTION"
PURSUANT TO REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO AN "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE
501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT,
OR FOR THE ACCOUNT OF SUCH AN "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES
AND
NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION
IN
VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE,
A
COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY. THE HOLDER OF THIS SECURITY
BY
ITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.
THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS AND WARRANTS
THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS SECURITY UNLESS
SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT OR AN APPLICABLE
EXEMPTION THEREFROM.
THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT
OR
OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), (EACH A "PLAN"), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT
IN THE ENTITY AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN MAY ACQUIRE
OR
HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER
IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS
NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT
TO
SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING
THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING
OF
SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT
RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975
OF
THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.
IN
CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILL DELIVER TO THE
COMPANY AND TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED
BY THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A PRINCIPAL
AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF.
ANY
ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING A PRINCIPAL AMOUNT OF
LESS
THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
ANY
SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF THIS SECURITY
FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS
ON
THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST
WHATSOEVER IN THIS SECURITY.
THIS
OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY
AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE
CORPORATION. THIS OBLIGATION IS SUBORDINATED TO THE CLAIMS OF DEPOSITORS AND
THE
CLAIMS OF GENERAL AND SECURED CREDITORS OF THE COMPANY, IS INELIGIBLE AS
COLLATERAL FOR A LOAN BY THE COMPANY OR ANY OF ITS SUBSIDIARIES AND IS NOT
SECURED.
Form
of
Junior Subordinated Debt Security due 2037
of
Wilshire
Bancorp, Inc.
Wilshire
Bancorp, Inc., a bank holding company incorporated in California (the
"Company"), for value received promises to pay to LaSalle Bank National
Association, not in its individual capacity but solely as Institutional Trustee
for Wilshire Statutory Trust IV, a Delaware statutory trust (the
"Securityholder"), or registered assigns, the principal sum of Twenty Five
Million Seven Hundred Seventy Four Thousand Dollars ($25,774,000) on September
15, 2037 and to pay interest on said principal sum from July 10, 2007, or from
the most recent interest payment date (each such date, an "Interest Payment
Date") to which interest has been paid or duly provided for, quarterly (subject
to deferral as set forth herein) in arrears on March 15, June 15, September
15
and December 15 of each year commencing September 15, 2007, at a variable per
annum rate equal to LIBOR (as defined in the Indenture) plus 1.38% (the
"Interest Rate") (provided, however, that the Interest Rate for any Interest
Payment Period may not exceed the highest rate permitted by New York law, as
the
same may be modified by United States law of general applicability) until the
principal hereof shall have become due and payable, and on any overdue principal
and (without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at
an
annual rate equal to the Interest Rate in effect for each such Interest Payment
Period compounded quarterly. The amount of interest payable on any Interest
Payment Date shall be computed on the basis of a 360-day year and the actual
number of days elapsed in the relevant interest period. Notwithstanding anything
to the contrary contained herein, if any Interest Payment Date, other than
on
the Maturity Date, any Redemption Date (to the extent redeemed) or the Special
Redemption Date, falls on a day that is not a Business Day, then any interest
payable will be paid on, and such Interest Payment Date will be moved to, the
next succeeding Business Day, and additional interest will accrue for each
day
that such payment is delayed as a result thereof. If the Maturity Date,
Redemption Date or Special Redemption Date falls on a day that is not a Business
Day, then the principal, premium, if any, and/or interest payable on such date
will be paid on the next succeeding Business Day, and no additional interest
will accrue (except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day). The
interest installment so payable, and punctually paid or duly provided for,
on
any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Debt Security (or one or more Predecessor Securities,
as defined in said Indenture) is registered at the close of business on the
regular record date for such interest installment, except that interest and
any
Deferred Interest payable on the Maturity Date shall be paid to the Person
to
whom principal is paid. Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the registered
Securityholders on such regular record date and may be paid to the Person in
whose name this Debt Security (or one or more Predecessor Debt Securities)
is
registered at the close of business on a special record date to be fixed by
the
Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered Securityholders not less than 10 days prior to such
special record date, all as more fully provided in the Indenture. The principal
of and interest on this Debt Security shall be payable at the office or agency
of the Trustee (or other Paying Agent appointed by the Company) maintained
for
that purpose in any coin or currency of the United States of America
that
at
the time of payment is legal tender for payment of public and private debts;
provided
,
however
,
that
payment of interest may be made at the option of the Company by check mailed
to
the registered Securityholder at such address as shall appear in the Debt
Security Register or by wire transfer of immediately available funds to an
account appropriately designated by the holder hereof. Notwithstanding the
foregoing, so long as the holder of this Debt Security is the Institutional
Trustee, payment of the principal of and premium, if any, and interest on this
Debt Security shall be made in immediately available funds when due at such
place and to such account as may be designated by the Institutional Trustee.
All
payments in respect of this Debt Security shall be payable in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts.
Upon
submission of Notice (as defined in the Indenture) and so long as no Event
of
Default pursuant to paragraphs (c), (e), (f) or (g) of Section 5.01 of the
Indenture has occurred and is continuing, the Company shall have the right
under
the Indenture, from time to time and without causing an Event of Default, to
defer payments of interest on the Debt Securities by extending the interest
distribution period on the Debt Securities at any time and from time to time
during the term of the Debt Securities, for up to 20 consecutive quarterly
periods (each such extended interest distribution period, an "Extension
Period"), during which Extension Period no interest shall be due and payable
(except any Additional Interest that may be due and payable). During any
Extension Period, interest will continue to accrue on the Debt Securities,
and
interest on such accrued interest (such accrued interest and interest thereon
referred to herein as "Deferred Interest") will accrue at an annual rate equal
to the Interest Rate applicable during such Extension Period, compounded
quarterly from the date such Deferred Interest would have been payable were
it
not for the Extension Period, to the extent permitted by law. No Extension
Period may end on a date other than an Interest Payment Date. At the end of
any
such Extension Period the Company shall pay all Deferred Interest then accrued
and unpaid on the Debt Securities;
provided
,
however
,
that no
Extension Period may extend beyond the Maturity Date, Redemption Date (to the
extent redeemed) or Special Redemption Date; and
provided
,
further
,
however, during any such Extension Period, the Company may not (i) declare
or
pay any dividends or distributions on, or redeem, purchase, acquire, or make
a
liquidation payment with respect to, any of the Company's capital stock or
(ii)
make any payment of principal of or premium, if any, or interest on or repay,
repurchase or redeem any debt securities of the Company that rank pari passu
in
all respects with or junior in interest to the Debt Securities or (iii) make
any
payment under any guarantees of the Company that rank in all respects
pari
passu
with or
junior in respect to the Capital Securities Guarantee (other than (a)
repurchases, redemptions or other acquisitions of shares of capital stock of
the
Company (A) in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of one or more employees, officers,
directors or consultants, (B) in connection with a dividend reinvestment or
stockholder stock purchase plan or (C) in connection with the issuance of
capital stock of the Company (or securities convertible into or exercisable
for
such capital stock), as consideration in an acquisition transaction entered
into
prior to the applicable Extension Period, (b) as a result of any exchange,
reclassification, combination or conversion of any class or series of the
Company's capital stock (or any capital stock of a subsidiary of the Company)
for any class or series of the Company's capital stock or of any class or series
of the Company's indebtedness for any class or series of the Company's capital
stock, (c) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (d) any declaration of
a
dividend in
connection
with any stockholder's rights plan, or the issuance of rights, stock or other
property under any stockholder's rights plan, or the redemption or repurchase
of
rights pursuant thereto, or (e) any dividend in the form of stock, warrants,
options or other rights where the dividend stock or the stock issuable upon
exercise of such warrants, options or other rights is the same stock as that
on
which the dividend is being paid or ranks
pari
passu
with or
junior to such stock). Prior to the termination of any Extension Period, the
Company may further extend such Extension Period;
provided
,
that no
Extension Period (including all previous and further consecutive extensions
that
are part of such Extension Period) shall exceed 20 consecutive quarterly
periods, or extend beyond the Maturity Date, Redemption Date (to the extent
redeemed) or Special Redemption Date. Upon the termination of any Extension
Period and upon the payment of all Deferred Interest, the Company may commence
a
new Extension Period, subject to the foregoing requirements. No interest or
Deferred Interest shall be due and payable during an Extension Period, except
at
the end thereof, but Deferred Interest shall accrue upon each installment of
interest that would otherwise have been due and payable during such Extension
Period until such installment is paid. The Company must give the Trustee notice
of its election to begin any Extension Period or extend an Extension Period
("Notice") not later than the related regular record date for the relevant
Interest Payment Date. The Notice shall describe why the Company has elected
to
begin an Extension Period. The Notice shall acknowledge and affirm the Company's
understanding that it is prohibited from issuing dividends and other
distributions during the Extension Period. Upon receipt of the Notice, the
Placement Agent shall have the right, at its sole discretion, to disclose the
name of the Company, the fact that the Company has elected to begin an Extension
Period and other information that such Placement Agent, at its sole discretion,
deems relevant to the Company's election to begin an Extension Period. The
Trustee shall give notice of the Company's election to begin a new Extension
Period to the Securityholders.
The
indebtedness evidenced by this Debt Security is, to the extent provided in
the
Indenture, subordinate and junior in right of payment to the prior payment
in
full of all Senior Indebtedness, and this Debt Security is issued subject to
the
provisions of the Indenture with respect thereto. Each holder of this Debt
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on such Securityholder's
behalf to take such action as may be necessary or appropriate to acknowledge
or
effectuate the subordination so provided and (c) appoints the Trustee such
Securityholder's attorney-in-fact for any and all such purposes. Each holder
hereof, by such holder's acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such Securityholder upon said
provisions.
The
Company waives diligence, presentment, demand for payment, notice of nonpayment,
notice of protest, and all other demands and notices.
This
Debt
Security shall not be entitled to any benefit under the Indenture hereinafter
referred to and shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by or on behalf
of the Trustee.
The
provisions of this Debt Security are continued on the reverse side hereof
and
such continued provisions shall for all purposes have the same effect as
though
fully set forth at this place.
IN
WITNESS WHEREOF, the Company has duly executed this certificate.
Wilshire
Bancorp, Inc.
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By:
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Name:
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Title:
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Dated:__________________,
2007
CERTIFICATE
OF AUTHENTICATION
This
represents Debt Securities referred to in the within-mentioned
Indenture.
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LaSalle
Bank National Association, not in its individual capacity but solely
as
Trustee
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By:
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Authorized
Signatory
|
Dated:__________________,
2007
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[FORM
OF
REVERSE OF SECURITY]
This
Debt
Security is one of a duly authorized series of Debt Securities of the Company,
all issued or to be issued pursuant to an Indenture (the "Indenture"), dated
as
of July 10, 2007, duly executed and delivered between the Company and LaSalle
Bank National Association, as Trustee (the "Trustee"), to which Indenture and
all indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of the Debt Securities
(referred to herein as the "Debt Securities") of which this Debt Security is
a
part. The summary of the terms of this Debt Security contained herein does
not
purport to be complete and is qualified by reference to the
Indenture.
Upon
the
occurrence and continuation of a Tax Event, an Investment Company Event or
a
Capital Treatment Event (each a "Special Event"), this Debt Security may become
due and payable, in whole or in part, at any time, within 90 days following
the
occurrence of such Tax Event, Investment Company Event or Capital Treatment
Event (the "Special Redemption Date"), as the case may be, at the Special
Redemption Price.
The
Company shall also have the right to redeem this Debt Security at the option
of
the Company, in whole or in part, on any March 15, June 15, September 15 or
December 15 on or after September 15, 2012 (a "Redemption Date"), at the
Redemption Price.
Any
redemption pursuant to either of the two preceding paragraphs will be made,
subject to the receipt by the Company of prior approval from any regulatory
authority with jurisdiction over the Company if such approval is then required
under applicable capital guidelines or policies of such regulatory authority,
upon not less than 30 days' nor more than 60 days' notice. If the Debt
Securities are only partially redeemed by the Company, the Debt Securities
will
be redeemed
pro
rata
or by
lot or by any other method utilized by the Trustee.
"Redemption
Price" means 100% of the principal amount of the Debt Securities being redeemed
plus accrued and unpaid interest on such Debt Securities to the Redemption
Date.
"Special
Redemption Price" means, with respect to the redemption of any Debt Security
following a Special Event, an amount in cash equal to 103.525% of the principal
amount of Debt Securities to be redeemed prior to September 15, 2008 and
thereafter equal to the percentage of the principal amount of the Debt
Securities that is specified below for the Special Redemption Date plus, in
each
case, unpaid interest accrued thereon to the Special Redemption Date:
Special
Redemption During the
12-Month
Period Beginning September 15
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Percentage
of Principal
Amount
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2008
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103.140%
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2009
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102.355%
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2010
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101.570%
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2011
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100.785%
|
2012
and thereafter
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100.000%
|
In
the
event of redemption of this Debt Security in part only, a new Debt Security
or
Debt Securities for the unredeemed portion hereof will be issued in the name
of
the Securityholder hereof upon the cancellation hereof.
In
certain cases where an Event of Default pursuant to paragraphs (c), (e), (f)
or
(g) of Section 5.01 of the Indenture shall have occurred and be continuing,
the
principal of all of the Debt Securities may be declared, and, in certain cases,
shall ipso facto become, due and payable, and upon such declaration of
acceleration shall become due and payable, in each case, in the manner, with
the
effect and subject to the conditions provided in the Indenture.
The
Indenture contains provisions permitting the Company and the Trustee, with
the
consent of the holders of not less than a majority in aggregate principal amount
of the Debt Securities at the time outstanding affected thereby, as specified
in
the Indenture, to execute supplemental indentures for the purpose of adding
any
provisions to or changing in any manner or eliminating any of the provisions
of
the Indenture or of any supplemental indenture or of modifying in any manner
the
rights of the Securityholders;
provided
,
however
,
that no
such supplemental indenture shall, among other things, without the consent
of
the holders of each Debt Security then outstanding and affected thereby (i)
change the Maturity Date of any Debt Security, or reduce the principal amount
thereof or any redemption premium thereon, or reduce the rate (or manner of
calculation of the rate) or extend the time of payment of interest thereon,
or
reduce (other than as a result of the maturity or earlier redemption of any
such
Debt Security in accordance with the terms of the Indenture and such Debt
Security) or increase the aggregate principal amount of Debt Securities then
outstanding, or change any of the redemption provisions, or make the principal
thereof or any interest or premium thereon payable in any coin or currency
other
than United States Dollars, or impair or affect the right of any Securityholder
to institute suit for the payment thereof, or (ii) reduce the aforesaid
percentage of Debt Securities, the holders of which are required to consent
to
any such supplemental indenture. The Indenture also contains provisions
permitting the holders of a majority in aggregate principal amount of the Debt
Securities at the time outstanding, on behalf of all of the Securityholders,
to
waive any past default in the performance of any of the covenants contained
in
the Indenture, or established pursuant to the Indenture, and its consequences,
except (a) a default in payments due in respect of any of the Debt Securities,
(b) in respect of covenants or provisions of the Indenture which cannot be
modified or amended without the consent of the holder of each Debt Security
affected, or (c) in respect of the covenants of the Company relating to its
ownership of Common Securities of the Trust. Any such consent or waiver by
the
registered holder of this Debt Security (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Securityholder and upon
all
future holders and owners of this Debt Security and of any Debt Security issued
in exchange herefor or in place hereof (whether by registration of transfer
or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debt Security.
No
reference herein to the Indenture and no provision of this Debt Security or
of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay all payments due on this Debt Security at
the
time and place and at the rate and in the money herein prescribed.
As
provided in the Indenture and subject to certain limitations herein and therein
set forth, this Debt Security is transferable by the registered holder hereof
on
the Debt Security Register of the Company, upon surrender of this Debt Security
for registration of transfer at the office or agency of the Trustee in Chicago,
Illinois accompanied by a written instrument or instruments of transfer in
form
satisfactory to the Company or the Trustee duly executed by the registered
holder hereof or such Securityholder's attorney duly authorized in writing,
and
thereupon one or more new Debt Securities of authorized denominations and for
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be made for any such registration of
transfer, but the Company may require payment of a sum sufficient to cover
any
tax or other governmental charge payable in relation thereto.
Prior
to
due presentment for registration of transfer of this Debt Security, the Company,
the Trustee, any Authenticating Agent, any Paying Agent, any transfer agent
and
the Debt Security Registrar may deem and treat the registered holder hereof
as
the absolute owner hereof (whether or not this Debt Security shall be overdue
and notwithstanding any notice of ownership or writing hereon) for the purpose
of receiving payment of the principal of and premium, if any, and interest
on
this Debt Security and for all other purposes, and neither the Company nor
the
Trustee nor any Authenticating Agent nor any Paying Agent nor any transfer
agent
nor any Debt Security Registrar shall be affected by any notice to the
contrary.
No
recourse shall be had for the payment of the principal of or the interest on
this Debt Security, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of
any
constitution, statute or rule of law, or by the enforcement of any assessment
or
penalty or otherwise, all such liability being, by the acceptance hereof and
as
part of the consideration for the issuance hereof, expressly waived and
released.
The
Debt
Securities are issuable only in registered certificated form without coupons.
As
provided in the Indenture and subject to certain limitations herein and therein
set forth, Debt Securities are exchangeable for a like aggregate principal
amount of Debt Securities of a different authorized denomination, as requested
by the Securityholder surrendering the same.
All
terms
used in this Debt Security that are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
THE
LAW
OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THE DEBT SECURITIES,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAW).
AMENDED
AND RESTATED DECLARATION
OF
TRUST
WILSHIRE
STATUTORY TRUST IV
Dated
as
of July 10, 2007
TABLE
OF CONTENTS
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Page
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ARTICLE
I
|
INTERPRETATION
AND DEFINITIONS
|
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SECTION 1.1.
|
Definitions
|
1
|
|
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ARTICLE
II
|
ORGANIZATION
|
|
|
|
SECTION
2.1.
|
Name
|
9
|
SECTION
2.2.
|
Office
|
9
|
SECTION
2.3.
|
Purpose
|
9
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SECTION
2.4.
|
Authority
|
9
|
SECTION
2.5.
|
Title
to Property of the Trust
|
10
|
SECTION
2.6.
|
Powers
and Duties of the Trustees and the Administrators
|
10
|
SECTION
2.7.
|
Prohibition
of Actions by the Trust and the Trustees
|
14
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SECTION
2.8.
|
Powers
and Duties of the Institutional Trustee
|
15
|
SECTION
2.9.
|
Certain
Duties and Responsibilities of the Trustees and the
Administrators
|
17
|
SECTION
2.10.
|
Certain
Rights of Institutional Trustee
|
19
|
SECTION
2.11.
|
Delaware
Trustee
|
21
|
SECTION
2.12.
|
Execution
of Documents
|
21
|
SECTION
2.13.
|
Not
Responsible for Recitals or Issuance of Securities
|
21
|
SECTION
2.14.
|
Duration
of Trust
|
22
|
SECTION
2.15.
|
Mergers
|
22
|
|
|
|
ARTICLE
III
|
SPONSOR
|
|
|
|
SECTION
3.1.
|
Sponsor's
Purchase of Common Securities
|
24
|
SECTION
3.2.
|
Responsibilities
of the Sponsor
|
24
|
|
|
|
ARTICLE
IV
|
TRUSTEES
AND ADMINISTRATORS
|
|
|
|
SECTION
4.1.
|
Number
of Trustees
|
24
|
SECTION
4.2.
|
Delaware
Trustee
|
24
|
SECTION
4.3.
|
Institutional
Trustee; Eligibility
|
25
|
SECTION
4.4.
|
Certain
Qualifications of the Delaware Trustee Generally
|
25
|
SECTION
4.5.
|
Administrators
|
25
|
SECTION
4.6.
|
Initial
Delaware Trustee
|
26
|
TABLE
OF CONTENTS
(continued)
|
|
Page
|
|
|
|
SECTION
4.7.
|
Appointment,
Removal and Resignation of the Trustees and the
Administrators
|
26
|
SECTION
4.8.
|
Vacancies
Among Trustees
|
28
|
SECTION
4.9.
|
Effect
of Vacancies
|
28
|
SECTION
4.10.
|
Meetings
of the Trustees and the Administrators
|
28
|
SECTION
4.11.
|
Delegation
of Power
|
28
|
SECTION
4.12.
|
Merger,
Conversion, Consolidation or Succession to Business
|
29
|
|
|
|
ARTICLE
V
|
DISTRIBUTIONS
|
|
|
|
SECTION
5.1.
|
Distributions
|
29
|
|
|
|
ARTICLE
VI
|
ISSUANCE
OF SECURITIES
|
|
|
|
SECTION
6.1.
|
General
Provisions Regarding Securities
|
30
|
SECTION
6.2.
|
Paying
Agent, Transfer Agent, Calculation Agent and Registrar
|
31
|
SECTION
6.3.
|
Form
and Dating
|
31
|
SECTION
6.4.
|
Book-Entry
Capital Securities
|
32
|
SECTION
6.5.
|
Mutilated,
Destroyed, Lost or Stolen Certificates
|
34
|
SECTION
6.6.
|
Temporary
Securities
|
34
|
SECTION
6.7.
|
Cancellation
|
34
|
SECTION
6.8.
|
Rights
of Holders; Waivers of Past Defaults
|
35
|
|
|
|
ARTICLE
VII
|
DISSOLUTION
AND TERMINATION OF TRUST
|
|
|
|
SECTION
7.1.
|
Dissolution
and Termination of Trust
|
36
|
|
|
|
ARTICLE
VIII
|
TRANSFER
OF INTERESTS
|
|
|
|
SECTION
8.1.
|
General
|
37
|
SECTION
8.2.
|
Transfer
Procedures and Restrictions
|
38
|
SECTION
8.3.
|
Deemed
Security Holders
|
42
|
|
|
|
ARTICLE
IX
|
LIMITATION
OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR
OTHERS
|
|
|
|
SECTION
9.1.
|
Liability
|
42
|
SECTION
9.2.
|
Exculpation
|
43
|
SECTION
9.3.
|
Fiduciary
Duty
|
43
|
SECTION
9.4.
|
Indemnification
|
44
|
SECTION
9.5.
|
Outside
Businesses
|
47
|
SECTION
9.6.
|
Compensation;
Fee
|
47
|
TABLE
OF CONTENTS
(continued)
|
|
Page
|
|
|
|
ARTICLE
X
|
ACCOUNTING
|
|
|
|
SECTION
10.1.
|
Fiscal
Year
|
48
|
SECTION
10.2.
|
Certain
Accounting Matters
|
48
|
SECTION
10.3.
|
Banking
|
49
|
SECTION
10.4.
|
Withholding
|
49
|
|
|
|
ARTICLE
XI
|
AMENDMENTS
AND MEETINGS
|
|
|
|
SECTION
11.1.
|
Amendments
|
49
|
SECTION
11.2.
|
Meetings
of the Holders of the Securities; Action by Written
Consent
|
51
|
|
|
|
ARTICLE
XII
|
REPRESENTATIONS
OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
|
|
|
|
SECTION
12.1.
|
Representations
and Warranties of Institutional Trustee
|
53
|
SECTION
12.2.
|
Representations
and Warranties of Delaware Trustee
|
54
|
|
|
|
ARTICLE
XIII
|
MISCELLANEOUS
|
|
|
|
SECTION
13.1.
|
Notices
|
54
|
SECTION
13.2.
|
Governing
Law
|
56
|
SECTION
13.3.
|
Submission
to Jurisdiction
|
56
|
SECTION
13.4.
|
Intention
of the Parties
|
56
|
SECTION
13.5.
|
Headings
|
56
|
SECTION
13.6.
|
Successors
and Assigns
|
57
|
SECTION
13.7.
|
Partial
Enforceability
|
57
|
SECTION
13.8.
|
Counterparts
|
57
|
TABLE
OF CONTENTS
(continued)
|
|
Page
|
|
|
|
|
|
|
ANNEX
I
|
Terms
of TP Securities and Common Securities
|
A-I-1
|
|
Form
of Capital Security Certificate
|
A-1-1
|
EXHIBIT
A-2
|
Form
of Common Security Certificate
|
A-2-1
|
AMENDED
AND RESTATED DECLARATION OF TRUST
OF
WILSHIRE
STATUTORY TRUST IV
July
10,
2007
AMENDED
AND RESTATED DECLARATION OF TRUST (this "Declaration"), dated and effective
as
of July 10, 2007, by the Trustees (as defined herein), the Administrators (as
defined herein), the Sponsor (as defined herein) and the holders from time
to
time of undivided beneficial interests in the assets of the Trust (as defined
herein) to be issued pursuant to this Declaration.
WHEREAS,
the Delaware Trustee and the Sponsor established Wilshire Statutory Trust IV
(the "Trust"), a statutory trust under the Statutory Trust Act (as defined
herein), pursuant to a Declaration of Trust, dated as of June 28, 2007 (the
"Original Declaration"), and a Certificate of Trust filed with the Secretary
of
State of the State of Delaware on June 28, 2007, for the sole purpose of issuing
and selling certain securities representing undivided beneficial interests
in
the assets of the Trust and investing the proceeds thereof in the Debentures
(as
defined herein) of the Debenture Issuer (as defined herein) in connection with
the issuance of the Capital Securities (as defined herein);
WHEREAS,
as of the date hereof, no interests in the assets of the Trust have been issued;
and
WHEREAS,
all of the Trustees, the Administrators and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original
Declaration.
NOW,
THEREFORE, it being the intention of the parties hereto to continue the Trust
as
a statutory trust under the Statutory Trust Act and that this Declaration
constitutes the governing instrument of such statutory trust, and that all
assets contributed to the Trust will be held in trust for the benefit of the
holders, from time to time, of the securities representing undivided beneficial
interests in the assets of the Trust issued hereunder, subject to the provisions
of this Declaration, and, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties, intending to be legally bound hereby, amend and
restate in its entirety the Original Declaration and agree as
follows:
ARTICLE
I
INTERPRETATION
AND DEFINITIONS
SECTION
1.1.
Definitions
.
Unless
the context otherwise requires:
(a)
capitalized
terms used in this Declaration but not defined in the preamble above or
elsewhere herein have the respective meanings assigned to them in this Section
1.1 or, if not defined in this Section 1.1 or elsewhere herein, in the
Indenture;
(b)
a
term
defined anywhere in this Declaration has the same meaning
throughout;
(c)
all
references to "the Declaration" or "this Declaration" are to this Declaration
as
modified, supplemented or amended from time to time;
(d)
all
references in this Declaration to Articles and Sections and Annexes and Exhibits
are to Articles and Sections of and Annexes and Exhibits to this Declaration
unless otherwise specified;
(e)
a
term
defined in the Trust Indenture Act (as defined herein) has the same meaning
when
used in this Declaration unless otherwise defined in this Declaration or unless
the context otherwise requires; and
(f)
a
reference to the singular includes the plural and vice versa.
"Additional
Interest" has the meaning set forth in Section 3.06 of the
Indenture.
"Administrative
Action" has the meaning set forth in paragraph 4(a) of Annex I.
"Administrators"
means each of Brian E. Cho and Soo Bong Min, solely in such Person's capacity
as
Administrator of the Trust continued hereunder and not in such Person's
individual capacity, or such Administrator's successor in interest in such
capacity, or any successor appointed as herein provided.
"Affiliate"
has the same meaning as given to that term in Rule 405 of the Securities Act
or
any successor rule thereunder.
"Applicable
Depositary Procedures" means, with respect to any transfer or transaction
involving a Book-Entry Capital Security, the rules and procedures of the
Depositary for such Book-Entry Capital Security, in each case to the extent
applicable to such transaction and as in effect from time to time.
"Authorized
Officer" of a Person means any Person that is authorized to bind such
Person.
"Bankruptcy
Event" means, with respect to any Person:
(a)
a
court
having jurisdiction in the premises enters a decree or order for relief in
respect of such Person in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appoints a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of such Person or for any substantial part of its property, or orders
the winding-up or liquidation of its affairs, and such decree, appointment
or
order remains unstayed and in effect for a period of 90 consecutive days;
or
(b)
such
Person commences a voluntary case under any applicable bankruptcy, insolvency
or
other similar law now or hereafter in effect, consents to the entry of an order
for relief in an involuntary case under any such law, or consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of such Person of
any
substantial part of its property, or makes any general assignment for the
benefit of creditors, or fails generally to pay its debts as they become
due.
"Book-Entry
Capital Security" means a Capital Security, the ownership and transfers of
which
shall be made through book entries by a Depositary.
"Business
Day" means any day other than Saturday, Sunday or any other day on which banking
institutions in Wilmington, Delaware or New York City or the city of the
Corporate Trust Office are permitted or required by any applicable law or
executive order to close.
"Calculation
Agent" has the meaning set forth in Section 1.01 of the Indenture.
"Capital
Securities" has the meaning set forth in Section 6.1(a).
"Capital
Securities Purchase Agreements" means the Capital Securities Purchase Agreement
dated as of June 28, 2007 among the Trust, the Sponsor and Alesco Preferred
Funding XV and the Capital Securities Purchase Agreement dated as of June 28,
2007 among the Trust, the Sponsor and Alesco Preferred Funding XVI.
"Capital
Security Certificate" means a definitive Certificate registered in the name
of
the Holder representing a Capital Security substantially in the form of Exhibit
A 1.
"Capital
Treatment Event" has the meaning set forth in paragraph 4(a) of Annex
I.
"Certificate"
means any certificate evidencing Securities.
"Certificate
of Trust" means the certificate of trust filed with the Secretary of State
of
the State of Delaware with respect to the Trust, as amended and restated from
time to time.
"Closing
Date" means the date of execution and delivery of this Declaration.
"Code"
means the Internal Revenue Code of 1986, as amended from time to time, or any
successor legislation.
"Commission"
means the United States Securities and Exchange Commission.
"Common
Securities" has the meaning set forth in Section 6.1(a).
"Common
Security Certificate" means a definitive Certificate registered in the name
of
the Holder representing a Common Security substantially in the form of Exhibit
A-2.
"Company
Indemnified Person" means (a) any Administrator; (b) any Affiliate of any
Administrator; (c) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Administrator; or (d) any officer,
employee or agent of the Trust or its Affiliates.
"Corporate
Trust Office" means the office of the Institutional Trustee at which the
corporate trust business of the Institutional Trustee shall, at any particular
time, be principally administered, which office shall at all times be located
in
the United States and at the date of execution of this Declaration is located
at
LaSalle Bank National Association, 135 S. LaSalle Street, Suite 1511, Chicago,
Illinois 60603, Attn: CDO Trust Services Group - Wilshire Statutory Trust
IV.
"Coupon
Rate" has the meaning set forth in paragraph 2(a) of Annex I.
"Covered
Person" means: (a) any Administrator, officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Trust or (ii) the Trust's
Affiliates; and (b) any Holder of Securities.
"Debenture
Issuer" means Wilshire Bancorp, Inc., a bank holding company incorporated in
California, in its capacity as issuer of the Debentures under the
Indenture.
"Debenture
Trustee" means LaSalle Bank National Association, not in its individual capacity
but solely as trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Debentures"
means the Junior Subordinated Debt Securities due September 15, 2037 to be
issued by the Debenture Issuer under the Indenture.
"Deferred
Interest" means any interest on the Debentures that would have been overdue
and
unpaid for more than one Distribution Payment Date but for the imposition of
an
Extension Period, and the interest that shall accrue (to the extent that the
payment of such interest is legally enforceable) on such interest at the Coupon
Rate applicable during such Extension Period, compounded quarterly from the
date
on which such Deferred Interest would otherwise have been due and payable until
paid or made available for payment.
"Definitive
Capital Securities" means any Capital Securities in definitive form issued
by
the Trust.
"Depositary"
means an organization registered as a clearing agency under the Exchange Act
that is designated as Depositary by the Sponsor or any successor thereto. DTC
will be the initial Depositary.
"Depositary
Participant" means a broker, dealer, bank, other financial institution or other
Person for whom from time to time the Depositary effects book-entry transfers
and pledges of securities deposited with the Depositary.
"Delaware
Trustee" has the meaning set forth in Section 4.2.
"Direct
Action" has the meaning set forth in Section 2.8(e).
"Distribution"
means a distribution payable to Holders of Securities in accordance with Section
5.1.
"Distribution
Payment Date" has the meaning set forth in paragraph 2(e) of Annex
I.
"DTC"
means The Depository Trust Company or any successor thereto.
"Distribution
Payment Period" means the period from and including a Distribution Payment
Date,
or in the case of the first Distribution Payment Period, the original date
of
issuance of the Securities, to, but excluding, the next succeeding Distribution
Payment Date or, in the case of the last Distribution Payment Period, the
Redemption Date, Special Redemption Date or Maturity Date (each as defined
in
the Indenture), as the case may be, for the related Debentures.
"Event
of
Default" means the occurrence of an Indenture Event of Default.
"Exchange
Act" means the Securities Exchange Act of 1934, as amended from time to time,
or
any successor legislation.
"Extension
Period" has the meaning set forth in paragraph 2(e) of Annex I.
"Fiduciary
Indemnified Person" shall mean each of the Institutional Trustee (including
in
its individual capacity), the Delaware Trustee (including in its individual
capacity), any Affiliate of the Institutional Trustee or the Delaware Trustee,
and any officers, directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents of the Institutional Trustee
or
the Delaware Trustee.
"Fiscal
Year" has the meaning set forth in Section 10.1.
"Global
Capital Security" means a Capital Securities Certificate evidencing ownership
of
Book-Entry Capital Securities.
"Guarantee"
means the Guarantee Agreement, dated as of the Closing Date, of the Sponsor
(the
"Guarantor") in respect of the Capital Securities.
"Holder"
means a Person in whose name a Certificate representing a Security is registered
on the register maintained by or on behalf of the Registrar, such Person being
a
beneficial owner within the meaning of the Statutory Trust Act.
"Indemnified
Person" means a Company Indemnified Person or a Fiduciary Indemnified
Person.
"Indenture"
means the Indenture, dated as of the Closing Date, between the Debenture Issuer
and the Debenture Trustee, and any indenture supplemental thereto pursuant
to
which the Debentures are to be issued.
"Indenture
Event of Default" means an "Event of Default" as defined in the
Indenture.
"Initial
Purchaser" means the Initial Purchaser of the Capital Securities.
"Institutional
Trustee" means the Trustee meeting the eligibility requirements set forth in
Section 4.3.
"Investment
Company" means an investment company as defined in the Investment Company
Act.
"Investment
Company Act" means the Investment Company Act of 1940, as amended from time
to
time, or any successor legislation.
"Investment
Company Event" has the meaning set forth in paragraph 4(a) of Annex
I.
"Legal
Action" has the meaning set forth in Section 2.8(e).
"LIBOR"
means the London Interbank Offered Rate for U.S. Dollar deposits in Europe
as
determined by the Calculation Agent according to paragraph 2(b) of Annex
I.
"LIBOR
Banking Day" has the meaning set forth in paragraph 2(b)(1) of Annex
I.
"LIBOR
Business Day" has the meaning set forth in paragraph 2(b)(1) of Annex
I.
"LIBOR
Determination Date" has the meaning set forth in paragraph 2(b)(1) of Annex
I.
"Liquidation"
has the meaning set forth in paragraph 3 of Annex I.
"Liquidation
Distribution" has the meaning set forth in paragraph 3 of Annex I.
"Majority
in liquidation amount of the Securities" means Holders of outstanding Securities
voting together as a single class or, as the context may require, Holders of
outstanding Capital Securities or Holders of outstanding Common Securities
voting separately as a class, who are the record owners of more than 50% of
the
aggregate liquidation amount (including the stated amount that would be paid
on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions
to
the date upon which the voting percentages are determined) of all outstanding
Securities of the relevant class.
"Notice"
has the meaning set forth in Section 2.11 of the Indenture.
"Officers'
Certificate" means, with respect to any Person, a certificate signed by two
Authorized Officers of such Person. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Declaration shall include:
(a)
a
statement that each officer signing the Officers' Certificate has read the
covenant or condition and the definitions relating thereto;
(b)
a
brief
statement of the nature and scope of the examination or investigation undertaken
by each officer in rendering the Officers' Certificate;
(c)
a
statement that each such officer has made such examination or investigation
as,
in such officer's opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d)
a
statement as to whether, in the opinion of each such officer, such condition
or
covenant has been complied with.
"Owner"
means each Person who is the beneficial owner of Book-Entry Capital Securities
as reflected in the records of the Depositary or, if a Depositary Participant
is
not the beneficial owner, then the beneficial owner as reflected in the records
of the Depositary Participant.
"Paying
Agent" has the meaning set forth in Section 6.2.
"Payment
Amount" has the meaning set forth in Section 5.1.
"Person"
means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"Placement
Agreement" means the Placement Agreement relating to the offering and sale
of
Capital Securities.
"PORTAL"
has the meaning set forth in Section 2.6(a)(i)(E).
"Property
Account" has the meaning set forth in Section 2.8(c).
"Pro
Rata" has the meaning set forth in paragraph 8 of Annex I.
"QIB"
means a "qualified institutional buyer" as defined under Rule 144A.
"Quorum"
means a majority of the Administrators or, if there are only two Administrators,
both of them.
"Redemption
Date" has the meaning set forth in paragraph 4(a) of Annex I.
"Redemption/Distribution
Notice" has the meaning set forth in paragraph 4(e) of
Annex I.
"Redemption
Price" has the meaning set forth in paragraph 4(a) of Annex I.
"Registrar"
has the meaning set forth in Section 6.2.
"Relevant
Trustee" has the meaning set forth in Section 4.7(a).
"Responsible
Officer" means, with respect to the Institutional Trustee, any officer within
the Corporate Trust Office of the Institutional Trustee with direct
responsibility for the administration of this Declaration, including any
vice-president, any assistant vice-president, any secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or other
officer of the Corporate Trust Office of the Institutional Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Restricted
Securities Legend" has the meaning set forth in Section 8.2(c).
"Rule
144A" means Rule 144A under the Securities Act.
"Rule
3a-5" means Rule 3a-5 under the Investment Company Act.
"Rule
3a-7" means Rule 3a-7 under the Investment Company Act.
"Securities"
means the Common Securities and the Capital Securities, as
applicable.
"Securities
Act" means the Securities Act of 1933, as amended from time to time, or any
successor legislation.
"Special
Event" has the meaning set forth in paragraph 4(a) of Annex I.
"Special
Redemption Price" has the meaning set forth in paragraph 4(a) of Annex
I.
"Sponsor"
means Wilshire Bancorp, Inc., a bank holding company that is a U.S. Person
incorporated in California, or any successor entity in a merger, consolidation
or amalgamation that is a U.S. Person, in its capacity as sponsor of the
Trust.
"Statutory
Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code
§
3801 et seq., as it may be amended from time to time, or any successor
legislation.
"Successor
Delaware Trustee" has the meaning set forth in Section 4.7(e).
"Successor
Entity" has the meaning set forth in Section 2.15(b).
"Successor
Institutional Trustee" has the meaning set forth in Section 4.7(b).
"Successor
Securities" has the meaning set forth in Section 2.15(b).
"Super
Majority" has the meaning set forth in paragraph 5(b) of Annex I.
"Tax
Event" has the meaning set forth in paragraph 4(a) of Annex I.
"10%
in
liquidation amount of the Securities" means Holders of outstanding Securities
voting together as a single class or, as the context may require, Holders of
outstanding Capital Securities or Holders of outstanding Common Securities
voting separately as a class, who are the record owners of 10% or more of the
aggregate liquidation amount (including the stated amount that would be paid
on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions
to
the date upon which the voting percentages are determined) of all outstanding
Securities of the relevant class.
"Transfer
Agent" has the meaning set forth in Section 6.2.
"Trust
Indenture Act" means the Trust Indenture Act of 1939, as amended from
time-to-time, or any successor legislation.
"Trustee"
or "Trustees" means each Person who has signed this Declaration as a trustee,
so
long as such Person shall continue in office in accordance with the terms
hereof, and all other Persons who may from time to time be duly appointed,
qualified and serving as Trustees in accordance with the provisions hereof,
and
references herein to a Trustee or the Trustees shall refer to such Person or
Persons solely in their capacity as trustees hereunder.
"Trust
Property" means (a) the Debentures, (b) any cash on deposit in, or owing to,
the
Property Account and (c) all proceeds and rights in respect of the foregoing
and
any other property and assets for the time being held or deemed to be held
by
the Institutional Trustee pursuant to the trusts of this
Declaration.
"U.S.
Person" means a United States Person as defined in Section 7701(a)(30) of the
Code.
ARTICLE
II
ORGANIZATION
SECTION
2.1.
Name
.
The
Trust is continued hereby and shall be known as "Wilshire Statutory Trust IV,"
as such name may be modified from time to time by the Administrators following
written notice to the Institutional Trustee and the Holders of the Securities.
The Trust's activities may be conducted under the name of the Trust or any
other
name deemed advisable by the Administrators.
SECTION
2.2.
Office
.
The
address of the principal office of the Trust, which shall be in a state of
the
United States or the District of Columbia, is 3200 Wilshire Boulevard, Suite
1400, Los Angeles, California 90010. On ten Business Days' written notice to
the
Institutional Trustee and the Holders of the Securities, the Administrators
may
designate another principal office, which shall be in a state of the United
States or the District of Columbia.
SECTION
2.3.
Purpose
.
The
exclusive purposes and functions of the Trust are (a) to issue and sell the
Securities representing undivided beneficial interests in the assets of the
Trust, (b) to invest the gross proceeds from such sale to acquire the
Debentures, (c) to facilitate direct investment in the assets of the Trust
through issuance of the Common Securities and the Capital Securities and
(d) except as otherwise limited herein, to engage in only those other
activities incidental thereto that are deemed necessary or advisable by the
Institutional Trustee, including, without limitation, those activities specified
in this Declaration. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, pledge any of its assets, or otherwise
undertake (or permit to be undertaken) any activity that would cause the Trust
not to be classified for United States federal income tax purposes as a grantor
trust.
SECTION
2.4.
Authority
.
Except
as specifically provided in this Declaration, the Institutional Trustee shall
have exclusive and complete authority to carry out the purposes of the Trust.
An
action taken by a Trustee on behalf of the Trust and in accordance with such
Trustee's powers shall constitute the act of and serve to bind the Trust. In
dealing with the Trustees acting on behalf of the Trust, no Person shall be
required to inquire into the authority of the Trustees to bind the Trust.
Persons dealing with the Trust are entitled to rely conclusively on the power
and authority of the Trustees as set forth in this Declaration. The
Administrators shall have only those ministerial duties set forth herein with
respect to accomplishing the purposes of the Trust and are not intended to
be
trustees or fiduciaries with respect to the Trust or the Holders. The
Institutional Trustee shall have the right, but shall not be obligated except
as
provided in Section 2.6, to perform those duties assigned to the
Administrators.
SECTION
2.5.
Title
to Property of the Trust
.
Except
as provided in Section 2.6(g) and Section 2.8 with respect to the Debentures
and
the Property Account or as otherwise provided in this Declaration, legal title
to all assets of the Trust shall be vested in the Trust. The Holders shall
not
have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial interest in the assets of the Trust.
SECTION
2.6.
Powers
and Duties of the Trustees and the Administrators
.
(a)
The
Trustees and the Administrators shall conduct the affairs of the Trust in
accordance with the terms of this Declaration. Subject to the limitations set
forth in paragraph (b) of this Section, and in accordance with the following
provisions (i) and (ii), the Administrators and, at the direction of the
Administrators, the Trustees, shall have the authority to enter into all
transactions and agreements determined by the Administrators to be appropriate
in exercising the authority, express or implied, otherwise granted to the
Trustees or the Administrators, as the case may be, under this Declaration,
and
to perform all acts in furtherance thereof, including without limitation, the
following:
(i)
Each
Administrator shall have the power, duty and authority, and is hereby
authorized, to act on behalf of the Trust with respect to the following
matters:
(A)
the
issuance and sale of the Securities;
(B)
to
acquire the Debentures with the proceeds of the sale of the Securities;
provided, however, that the Administrators shall cause legal title to the
Debentures to be held of record in the name of the Institutional Trustee for
the
benefit of the Holders;
(C)
to
cause
the Trust to enter into, and to execute, deliver and perform on behalf of the
Trust, such agreements as may be necessary or desirable in connection with
the
purposes and function of the Trust, including agreements with the Paying Agent,
a Debenture subscription agreement between the Trust and the Sponsor and a
Common Securities subscription agreement between the Trust and the
Sponsor;
(D)
ensuring
compliance with the Securities Act and applicable state securities or blue
sky
laws;
(E)
if
and at
such time determined solely by the Sponsor at the request of the Holders,
assisting in the designation of the Capital Securities for trading in the
Private Offering, Resales and Trading through the Automatic Linkages ("PORTAL")
system if available;
(F)
the
sending of notices (other than notices of default) and other information
regarding the Securities and the Debentures to the Holders in accordance with
this Declaration, including notice of any notice received from the Debenture
Issuer of its election to defer payments of interest on the Debentures by
extending the interest payment period under the Indenture;
(G)
the
appointment of a Paying Agent, Transfer Agent and Registrar in accordance with
this Declaration;
(H)
execution
and delivery of the Securities in accordance with this Declaration;
(I)
execution
and delivery of closing certificates pursuant to the Placement Agreement and
the
application for a taxpayer identification number;
(J)
unless
otherwise determined by the Holders of a Majority in liquidation amount of
the
Securities or as otherwise required by the Statutory Trust Act, to execute
on
behalf of the Trust (either acting alone or together with any or all of the
Administrators) any documents that the Administrators have the power to execute
pursuant to this Declaration;
(K)
the
taking of any action incidental to the foregoing as the Sponsor or an
Administrator may from time to time determine is necessary or advisable to
give
effect to the terms of this Declaration for the benefit of the Holders (without
consideration of the effect of any such action on any particular
Holder);
(L)
to
establish a record date with respect to all actions to be taken hereunder that
require a record date be established, including Distributions, voting rights,
redemptions and exchanges, and to issue relevant notices to the Holders of
Capital Securities and Holders of Common Securities as to such actions and
applicable record dates;
(M)
to
duly
prepare and file on behalf of the Trust all applicable tax returns and tax
information reports that are required to be filed with respect to the
Trust;
(N)
to
negotiate the terms of, and the execution and delivery of, the Placement
Agreement and the Capital Securities Purchase Agreements related thereto,
providing for the sale of the Capital Securities;
(O)
to
employ
or otherwise engage employees, agents (who may be designated as officers with
titles), managers, contractors, advisors, attorneys and consultants and pay
reasonable compensation for such services;
(P)
to
incur
expenses that are necessary or incidental to carry out any of the purposes
of
the Trust;
(Q)
to
give
the certificate required by § 314(a)(4) of the Trust Indenture Act to the
Institutional Trustee, which certificate may be executed by an Administrator;
and
(R)
to
take
all action that may be necessary or appropriate for the preservation and the
continuation of the Trust's valid existence, rights, franchises and privileges
as a statutory trust under the laws of each jurisdiction (other than the State
of Delaware) in which such existence is necessary to protect the limited
liability of the Holders of the Capital Securities or to enable the Trust to
effect the purposes for which the Trust was created.
(ii)
As
among
the Trustees and the Administrators, the Institutional Trustee shall have the
power, duty and authority, and is hereby authorized, to act on behalf of the
Trust with respect to the following matters:
(A)
the
establishment of the Property Account;
(B)
the
receipt of the Debentures;
(C)
the
collection of interest, principal and any other payments made in respect of
the
Debentures in the Property Account;
(D)
the
distribution through the Paying Agent of amounts owed to the Holders in respect
of the Securities;
(E)
the
exercise of all of the rights, powers and privileges of a holder of the
Debentures;
(F)
the
sending of notices of default and other information regarding the Securities
and
the Debentures to the Holders in accordance with this Declaration;
(G)
the
distribution of the Trust Property in accordance with the terms of this
Declaration;
(H)
to
the
extent provided in this Declaration, the winding up of the affairs of and
liquidation of the Trust;
(I)
after
any
Event of Default (of which the Institutional Trustee has knowledge (as provided
in Section 2.10(m) hereof)) (
provided
,
that
such Event of Default is not by or with respect to the Institutional Trustee),
the taking of any action incidental to the foregoing as the Institutional
Trustee may from time to time determine is necessary or advisable to give effect
to the terms of this Declaration and protect and conserve the Trust Property
for
the benefit of the Holders (without consideration of the effect of any such
action on any particular Holder);
(J)
to
take
all action that may be necessary or appropriate for the preservation and the
continuation of the Trust's valid existence, rights, franchises and privileges
as a statutory trust under the laws of the State of Delaware to protect the
limited liability of the Holders of the Capital Securities or to enable the
Trust to effect the purposes for which the Trust was created; and
(K)
to
undertake any actions set forth in § 317(a) of the Trust Indenture
Act.
(iii)
The
Institutional Trustee shall have the power and authority, and is hereby
authorized, to act on behalf of the Trust with respect to any of the duties,
liabilities, powers or the authority of the Administrators set forth in Section
2.6(a)(i)(E) and (F) herein but shall not have a duty to do any such act unless
specifically requested to do so in writing by the Sponsor, and shall then be
fully protected in acting pursuant to such written request; and in the event
of
a conflict between the action of the Administrators and the action of the
Institutional Trustee, the action of the Institutional Trustee shall
prevail.
(b)
So
long
as this Declaration remains in effect, the Trust (or the Trustees or
Administrators acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, neither the Trustees nor the Administrators may cause
the
Trust to (i) acquire any investments or engage in any activities not authorized
by this Declaration, (ii) sell, assign, transfer, exchange, mortgage, pledge,
set-off or otherwise dispose of any of the Trust Property or interests therein,
including to Holders, except as expressly provided herein, (iii) take any action
that would cause (or in the case of the Institutional Trustee, to the actual
knowledge of a Responsible Officer would cause) the Trust to fail or cease
to
qualify as a "grantor trust" for United States federal income tax purposes,
(iv)
incur any indebtedness for borrowed money or issue any other debt or (v) take
or
consent to any action that would result in the placement of a lien on any of
the
Trust Property. The Institutional Trustee shall, at the sole cost and expense
of
the Trust, defend all claims and demands of all Persons at any time claiming
any
lien on any of the Trust Property adverse to the interest of the Trust or the
Holders in their capacity as Holders.
(c)
In
connection with the issuance and sale of the Capital Securities, the Sponsor
shall have the right and responsibility to assist the Trust with respect to,
or
effect on behalf of the Trust, the following (and any actions taken by the
Sponsor in furtherance of the following prior to the date of this Declaration
are hereby ratified and confirmed in all respects):
(i)
the
taking of any action necessary to obtain an exemption from the Securities
Act;
(ii)
the
determination of the States in which to take appropriate action to qualify
or
register for sale all or part of the Capital Securities and the determination
of
any and all such acts, other than actions which must be taken by or on behalf
of
the Trust, and the advisement of and direction to the Trustees of actions they
must take on behalf of the Trust, and the preparation for execution and filing
of any documents to be executed and filed by the Trust or on behalf of the
Trust, as the Sponsor deems necessary or advisable in order to comply with
the
applicable laws of any such States in connection with the sale of the Capital
Securities; and
(iii)
the
taking of any other actions necessary or desirable to carry out any of the
foregoing activities.
(d)
Notwithstanding
anything herein to the contrary, the Administrators, the Institutional Trustee
and the Holders of a Majority in liquidation amount of the Common Securities
are
authorized and directed to conduct the affairs of the Trust and to operate
the
Trust so that (i) the Trust will not be deemed to be an Investment Company
(in
the case of the Institutional Trustee, to the actual knowledge of a Responsible
Officer), and (ii) the Trust will not fail to be classified as a grantor trust
for United States federal income tax purposes (in the case of the Institutional
Trustee, to the actual knowledge of a Responsible Officer) and (iii) the Trust
will not take any action inconsistent with the treatment of the Debentures
as
indebtedness of the Debenture Issuer for United States federal income tax
purposes (in the case of the Institutional Trustee, to the actual knowledge
of a
Responsible Officer). In this connection, the Institutional Trustee, the
Administrators and the Holders of a Majority in liquidation amount of the Common
Securities are authorized to take any action, not inconsistent with applicable
laws or this Declaration, as amended from time to time, that each of the
Institutional Trustee, the Administrators and such Holders determine in their
discretion to be necessary or desirable for such purposes, even if such action
adversely affects the interests of the Holders of the Capital
Securities.
(e)
All
expenses incurred by the Administrators or the Trustees pursuant to this Section
2.6 shall be reimbursed by the Sponsor, and the Trustees shall have no
obligations with respect to such expenses.
(f)
The
assets of the Trust shall consist of the Trust Property.
(g)
Legal
title to all Trust Property shall be vested at all times in the Institutional
Trustee (in its capacity as such) and shall be held and administered by the
Institutional Trustee for the benefit of the Trust in accordance with this
Declaration.
(h)
If
the
Institutional Trustee or any Holder has instituted any proceeding to enforce
any
right or remedy under this Declaration and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the
Institutional Trustee or to such Holder, then and in every such case the
Sponsor, the Institutional Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the
Institutional Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION
2.7.
Prohibition
of Actions by the Trust and the Trustees
.
The
Trust shall not, and the Institutional Trustee and the Administrators shall
not,
and the Administrators shall cause the Trust not to, engage in any activity
other than as required or authorized by this Declaration. In particular, the
Trust shall not, and the Institutional Trustee and the Administrators shall
not
cause the Trust to:
(a)
invest
any proceeds received by the Trust from holding the Debentures, but shall
distribute all such proceeds to Holders of the Securities pursuant to the terms
of this Declaration and of the Securities;
(b)
acquire
any assets other than as expressly provided herein;
(c)
possess
Trust Property for other than a Trust purpose;
(d)
make
any
loans or incur any indebtedness other than loans represented by the
Debentures;
(e)
possess
any power or otherwise act in such a way as to vary the Trust Property or the
terms of the Securities;
(f)
issue
any
securities or other evidences of beneficial ownership of, or beneficial interest
in, the Trust other than the Securities; or
(g)
other
than as provided in this Declaration (including Annex I), (i) direct the time,
method and place of exercising any trust or power conferred upon the Debenture
Trustee with respect to the Debentures, (ii) waive any past default that is
waivable under the Indenture, (iii) exercise any right to rescind or annul
any
declaration that the principal of all the Debentures shall be due and payable,
or (iv) consent to any amendment, modification or termination of the Indenture
or the Debentures where such consent shall be required unless the Trust shall
have received a written opinion of counsel experienced in such matters to the
effect that such amendment, modification or termination will not cause the
Trust
to cease to be classified as a grantor trust for United States federal income
tax purposes.
SECTION
2.8.
Powers
and Duties of the Institutional Trustee
.
(a)
The
legal
title to the Debentures shall be owned by and held of record in the name of
the
Institutional Trustee in trust for the benefit of the Trust. The right, title
and interest of the Institutional Trustee to the Debentures shall vest
automatically in each Person who may hereafter be appointed as Institutional
Trustee in accordance with Section 4.7. Such vesting and cessation of title
shall be effective whether or not conveyancing documents with regard to the
Debentures have been executed and delivered.
(b)
The
Institutional Trustee shall not transfer its right, title and interest in the
Debentures to the Administrators or to the Delaware Trustee.
(c)
The
Institutional Trustee shall:
(i)
establish
and maintain a segregated non-interest bearing trust account (the "Property
Account") in the United States (as defined in Treasury Regulations §
301.7701-7), in the name of and under the exclusive control of the Institutional
Trustee, and maintained in the Institutional Trustee's trust department, on
behalf of the Holders of the Securities and, upon the receipt of payments of
funds made in respect of the Debentures held by the Institutional Trustee,
deposit such funds into the Property Account and make payments to the Holders
of
the Capital Securities and Holders of the Common Securities from the Property
Account in accordance with Section 5.1. Funds in the Property Account shall
be
held uninvested until disbursed in accordance with this
Declaration;
(ii)
engage
in
such ministerial activities as shall be necessary or appropriate to effect
the
redemption of the Capital Securities and the Common Securities to the extent
the
Debentures are redeemed or mature; and
(iii)
upon
written notice of distribution issued by the Administrators in accordance with
the terms of the Securities, engage in such ministerial activities as shall
be
necessary or appropriate to effect the distribution of the Debentures to Holders
of Securities upon the occurrence of certain circumstances pursuant to the
terms
of the Securities.
(d)
The
Institutional Trustee shall take all actions and perform such duties as may
be
specifically required of the Institutional Trustee pursuant to the terms of
the
Securities.
(e)
The
Institutional Trustee may bring or defend, pay, collect, compromise, arbitrate,
resort to legal action with respect to, or otherwise adjust claims or demands
of
or against, the Trust (a "Legal Action") which arise out of or in connection
with an Event of Default of which a Responsible Officer of the Institutional
Trustee has actual knowledge or the Institutional Trustee's duties and
obligations under this Declaration or the Trust Indenture Act;
provided
,
however
,
that if
an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay interest or premium,
if any, on or principal of the Debentures on the date such interest, premium,
if
any, or principal is otherwise payable (or in the case of redemption, on the
redemption date), then a Holder of the Capital Securities may directly institute
a proceeding for enforcement of payment to such Holder of the principal of
or
premium, if any, or interest on the Debentures having a principal amount equal
to the aggregate liquidation amount of the Capital Securities of such Holder
(a
"Direct Action") on or after the respective due date specified in the
Debentures. In connection with such Direct Action, the rights of the Holders
of
the Common Securities will be subrogated to the rights of such Holder of the
Capital Securities to the extent of any payment made by the Debenture Issuer
to
such Holder of the Capital Securities in such Direct Action;
provided
,
however
,
that a
Holder of the Common Securities may exercise such right of subrogation only
if
no Event of Default with respect to the Capital Securities has occurred and
is
continuing.
(f)
The
Institutional Trustee shall continue to serve as a Trustee until
either:
(i)
the
Trust
has been completely liquidated and the proceeds of the liquidation distributed
to the Holders of the Securities pursuant to the terms of the Securities and
this Declaration (including Annex I) and the certificate of cancellation
referenced in Section 7.1(b) has been filed; or
(ii)
a
Successor Institutional Trustee has been appointed and has accepted that
appointment in accordance with Section 4.7.
(g)
The
Institutional Trustee shall have the legal power to exercise all of the rights,
powers and privileges of a holder of the Debentures under the Indenture and,
if
an Event of Default occurs and is continuing, the Institutional Trustee may,
for
the benefit of Holders of the Securities, enforce its rights as holder of the
Debentures subject to the rights of the Holders pursuant to this Declaration
(including Annex I) and the terms of the Securities.
(h)
The
Institutional Trustee must exercise the powers set forth in this Section 2.8
in
a manner that is consistent with the purposes and functions of the Trust set
out
in Section 2.3, and the Institutional Trustee shall not take any action that
is
inconsistent with the purposes and functions of the Trust set out in Section
2.3.
SECTION
2.9.
Certain
Duties and Responsibilities of the Trustees and the
Administrators
.
(a)
The
Institutional Trustee, before the occurrence of any Event of Default (of which
the Institutional Trustee has knowledge (as provided in Section 2.10(m) hereof))
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Declaration and no implied covenants shall be read into this Declaration against
the Institutional Trustee. In case an Event of Default (of which the
Institutional Trustee has knowledge (as provided in Section 2.10(m) hereof)),
has occurred (that has not been cured or waived pursuant to Section 6.8), the
Institutional Trustee shall exercise such of the rights and powers vested in
it
by this Declaration, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances
in
the conduct of his or her own affairs.
(b)
The
duties and responsibilities of the Trustees and the Administrators shall be
as
provided by this Declaration and, in the case of the Institutional Trustee,
by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Declaration shall require any Trustee or Administrator 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 satisfactory to it against such risk or liability is not
reasonably assured to it. Whether or not therein expressly so provided, every
provision of this Declaration relating to the conduct or affecting the liability
of or affording protection to the Trustees or the Administrators shall be
subject to the provisions of this Article. Nothing in this Declaration shall
be
construed to release a Trustee from liability for its own negligent action,
its
own negligent failure to act, or its own willful misconduct or bad faith.
Nothing in this Declaration shall be construed to release an Administrator
from
liability for its own gross negligent action, its own gross negligent failure
to
act, or its own willful misconduct or bad faith. To the extent that, at law
or
in equity, a Trustee or an Administrator has duties (including fiduciary duties)
to the Trust or to the Holders, such Trustee's or Administrator's duties may
be
restricted or eliminated by provisions in this Declaration, except that this
Declaration may not eliminate the implied contractual covenant of good faith
and
fair dealing. A Trustee or Administrator shall not be liable to the Trust or
a
Holder or another Person that is party to or is otherwise bound by the
Declaration for breach of fiduciary duty for such Trustee's or Administrator's
good faith reliance on the provisions of the Declaration. The provisions of
this
Declaration, to the extent that they restrict or eliminate the liabilities
of
the Trustees or the Administrators otherwise existing at law or in equity,
are
agreed by the Sponsor and the Holders to replace such other liabilities of
the
Trustees or the Administrators, as the case may be, except that no provision
of
this Declaration may limit or eliminate liability for any act or omission that
constitutes a bad faith violation of the implied contractual covenant of good
faith and fair dealing.
(c)
All
payments made by the Institutional Trustee or a Paying Agent in respect of
the
Securities shall be made only from the revenue and proceeds from the Trust
Property and only to the extent that there shall be sufficient revenue or
proceeds from the Trust Property to enable the Institutional Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Holder, by
its
acceptance of a Security, agrees that it will look solely to the revenue and
proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees and the
Administrators are not personally liable to it for any amount distributable
in
respect of any Security or for any other liability in respect of any Security.
This Section 2.9(c) does not limit the liability of the Trustees expressly
set
forth elsewhere in this Declaration or, in the case of the Institutional
Trustee, in the Trust Indenture Act.
(d)
No
provision of this Declaration shall be construed to relieve the Institutional
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct or bad faith with respect to matters
that
are within the authority of the Institutional Trustee under this Declaration,
except that:
(i)
the
Institutional Trustee shall not be liable for any error or judgment made in
good
faith by a Responsible Officer of the Institutional Trustee, unless it shall
be
proved that the Institutional Trustee was negligent in ascertaining the
pertinent facts;
(ii)
the
Institutional Trustee shall not be liable with respect to any action taken
or
omitted to be taken by it in good faith in accordance with the direction of
the
Holders of not less than a Majority in liquidation amount of the Capital
Securities or the Common Securities, as applicable, relating to the time, method
and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under this Declaration;
(iii)
the
Institutional Trustee's sole duty with respect to the custody, safe keeping
and
physical preservation of the Debentures and the Property Account shall be to
deal with such property in a similar manner as the Institutional Trustee deals
with similar property for its own account, subject to the protections and
limitations on liability afforded to the Institutional Trustee under this
Declaration and the Trust Indenture Act;
(iv)
the
Institutional Trustee shall not be liable for any interest on any money received
by it except as it may otherwise agree in writing with the Sponsor; and money
held by the Institutional Trustee need not be segregated from other funds held
by it except in relation to the Property Account maintained by the Institutional
Trustee pursuant to Section 2.8(c)(i) and except to the extent otherwise
required by law; and
(v)
the
Institutional Trustee shall not be responsible for monitoring the compliance
by
the Administrators or the Sponsor with their respective duties under this
Declaration, nor shall the Institutional Trustee be liable for any default
or
misconduct of the Administrators or the Sponsor.
SECTION
2.10.
Certain
Rights of Institutional Trustee
.
Subject
to the provisions of Section 2.9.
(a)
the
Institutional Trustee may conclusively rely and shall fully be protected in
acting or refraining from acting in good faith upon any resolution, written
opinion of counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
appraisal, bond, debenture, note, other evidence of indebtedness or other paper
or document believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(b)
if
(i) in
performing its duties under this Declaration, the Institutional Trustee is
required to decide between alternative courses of action, (ii) in construing
any
of the provisions of this Declaration, the Institutional Trustee finds the
same
ambiguous or inconsistent with any other provisions contained herein, or (iii)
the Institutional Trustee is unsure of the application of any provision of
this
Declaration, then, except as to any matter as to which the Holders of Capital
Securities are entitled to vote under the terms of this Declaration, the
Institutional Trustee may deliver a notice to the Sponsor requesting the
Sponsor's opinion as to the course of action to be taken and the Institutional
Trustee shall take such action, or refrain from taking such action, as the
Institutional Trustee in its sole discretion shall deem advisable and in the
best interests of the Holders, in which event the Institutional Trustee shall
have no liability except for its own negligence, willful misconduct or bad
faith;
(c)
any
direction or act of the Sponsor or the Administrators contemplated by this
Declaration shall be sufficiently evidenced by an Officers'
Certificate;
(d)
whenever
in the administration of this Declaration, the Institutional Trustee shall
deem
it desirable that a matter be proved or established before undertaking,
suffering or omitting any action hereunder, the Institutional Trustee (unless
other evidence is herein specifically prescribed) may, in the absence of bad
faith on its part, request and conclusively rely upon an Officers' Certificate
which, upon receipt of such request, shall be promptly delivered by the Sponsor
or the Administrators;
(e)
the
Institutional Trustee shall have no duty to see to any recording, filing or
registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any rerecording,
refiling or reregistration thereof;
(f)
the
Institutional Trustee may consult with counsel of its selection (which counsel
may be counsel to the Sponsor or any of its Affiliates) and the advice of such
counsel shall be full and complete authorization and protection in respect
of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon and in accordance with such advice; the Institutional Trustee
shall have the right at any time to seek instructions concerning the
administration of this Declaration from any court of competent
jurisdiction;
(g)
the
Institutional Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Declaration at the request or direction of any
of
the Holders pursuant to this Declaration, unless such Holders shall have offered
to the Institutional Trustee security or indemnity reasonably satisfactory
to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
provided
,
that
nothing contained in this Section 2.10(g) shall be taken to relieve the
Institutional Trustee, upon the occurrence of an Event of Default (of which
the
Institutional Trustee has knowledge (as provided in Section 2.10(m) hereof))
that has not been cured or waived, of its obligation to exercise the rights
and
powers vested in it by this Declaration;
(h)
the
Institutional Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
note or other evidence of indebtedness or other paper or document, unless
requested in writing to do so by one or more Holders, but the Institutional
Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit;
(i)
the
Institutional Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through its agents or
attorneys and the Institutional Trustee shall not be responsible for any
misconduct or negligence on the part of, or for the supervision of, any such
agent or attorney appointed with due care by it hereunder;
(j)
whenever
in the administration of this Declaration the Institutional Trustee shall deem
it desirable to receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Institutional Trustee (i) may
request instructions from the Holders of the Common Securities and the Capital
Securities, which instructions may be given only by the Holders of the same
proportion in liquidation amount of the Common Securities and the Capital
Securities as would be entitled to direct the Institutional Trustee under the
terms of the Common Securities and the Capital Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right
or
taking such other action until such instructions are received, and (iii) shall
be fully protected in acting in accordance with such instructions;
(k)
except
as
otherwise expressly provided in this Declaration, the Institutional Trustee
shall not be under any obligation to take any action that is discretionary
under
the provisions of this Declaration;
(l)
when
the
Institutional Trustee incurs expenses or renders services in connection with
a
Bankruptcy Event, such expenses (including the fees and expenses of its counsel)
and the compensation for such services are intended to constitute expenses
of
administration under any bankruptcy law or law relating to creditors rights
generally;
(m)
the
Institutional Trustee shall not be charged with knowledge of an Event of Default
unless a Responsible Officer of the Institutional Trustee has actual knowledge
of such event or the Institutional Trustee receives written notice of such
event
from any Holder, except with respect to an Event of Default pursuant to Sections
5.01(a), 5.01(b) or 5.01(c) of the Indenture (other than an Event of Default
resulting from the default in the payment of Additional Interest or premium,
if
any, if the Institutional Trustee does not have actual knowledge or written
notice that such payment is due and payable), of which the Institutional Trustee
shall be deemed to have knowledge;
(n)
any
action taken by the Institutional Trustee or its agents hereunder shall bind
the
Trust and the Holders of the Securities, and the signature of the Institutional
Trustee or its agents alone shall be sufficient and effective to perform any
such action and no third party shall be required to inquire as to the authority
of the Institutional Trustee to so act or as to its compliance with any of
the
terms and provisions of this Declaration, both of which shall be conclusively
evidenced by the Institutional Trustee's or its agent's taking such action;
and
(o)
no
provision of this Declaration shall be deemed to impose any duty or obligation
on the Institutional Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it, in any jurisdiction in
which it shall be illegal, or in which the Institutional Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation.
No
permissive power or authority available to the Institutional Trustee shall
be
construed to be a duty.
SECTION
2.11.
Delaware
Trustee
.
Notwithstanding any other provision of this Declaration other than Section
4.2,
the Delaware Trustee shall not be entitled to exercise any powers, nor shall
the
Delaware Trustee have any of the duties and responsibilities of any of the
Trustees or the Administrators described in this Declaration (except as may
be
required under the Statutory Trust Act). Except as set forth in Section 4.2,
the
Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of § 3807 of the Statutory Trust Act.
SECTION
2.12.
Execution
of Documents
.
Unless
otherwise determined in writing by the Institutional Trustee, and except as
otherwise required by the Statutory Trust Act, the Institutional Trustee, or
any
one or more of the Administrators, as the case may be, is authorized to execute
and deliver on behalf of the Trust any documents, agreements, instruments or
certificates that the Trustees or the Administrators, as the case may be, have
the power and authority to execute pursuant to Section 2.6.
SECTION
2.13.
Not
Responsible for Recitals or Issuance of Securities
.
The
recitals contained in this Declaration and the Securities shall be taken as
the
statements of the Sponsor, and the Trustees do not assume any responsibility
for
their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make
no
representations as to the validity or sufficiency of this Declaration, the
Debentures or the Securities.
SECTION
2.14.
Duration
of Trust
.
The
Trust, unless dissolved pursuant to the provisions of Article VII hereof, shall
have existence for thirty-five (35) years from the Closing Date.
SECTION
2.15.
Mergers
.
(a)
The
Trust
may not consolidate, amalgamate, merge with or into, or be replaced by, or
convey, transfer or lease its properties and assets substantially as an entirety
to any corporation or other Person, except as described in this Section 2.15
and
except with respect to the distribution of Debentures to Holders of Securities
pursuant to Section 7.1(a)(iv) of the Declaration or Section 3 of Annex
I.
(b)
The
Trust
may, with the consent of the Administrators (which consent will not be
unreasonably withheld) and without the consent of the Institutional Trustee
or
the Holders of the Capital Securities, consolidate, amalgamate, merge with
or
into, or be replaced by, or convey, transfer or lease its properties and assets
as an entirety or substantially as an entirety to a trust organized as such
under the laws of any state;
provided
,
that:
(i)
if
the
Trust is not the survivor, such successor entity (the "Successor Entity")
either:
(A)
expressly
assumes all of the obligations of the Trust under the Securities;
or
(B)
substitutes
for the Securities other securities having substantially the same terms as
the
Securities (the "Successor Securities") so that the Successor Securities rank
the same as the Securities rank with respect to Distributions and payments
upon
Liquidation, redemption and otherwise;
(ii)
the
Sponsor expressly appoints a trustee of the Successor Entity that possesses
the
same powers and duties as the Institutional Trustee;
(iii)
the
Capital Securities or any Successor Securities (excluding any securities
substituted for the Common Securities) are listed or quoted, or any Successor
Securities will be listed or quoted upon notification of issuance, on any
national securities exchange or with another organization on which the Capital
Securities are then listed or quoted, if any;
(iv)
such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not cause the rating, if any, on the Capital Securities (including any
Successor Securities) to be downgraded or withdrawn by any nationally recognized
statistical rating organization, if the Capital Securities are then
rated;
(v)
such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the Holders
of the Securities (including any Successor Securities) in any material respect
(other than with respect to any dilution of such Holders' interests in the
Successor Entity as a result of such merger, consolidation, amalgamation or
replacement);
(vi)
such
Successor Entity has a purpose substantially identical to that of the
Trust;
(vii)
prior
to
such merger, consolidation, amalgamation, replacement, conveyance, transfer
or
lease, the Trust has received a written opinion of a nationally recognized
independent counsel to the Trust experienced in such matters to the effect
that:
(A)
such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the Holders
of the Securities (including any Successor Securities) in any material respect
(other than with respect to any dilution of the Holders' interests in the
Successor Entity);
(B)
following
such merger, consolidation, amalgamation, replacement, conveyance, transfer
or
lease, neither the Trust nor the Successor Entity will be required to register
as an Investment Company; and
(C)
following
such merger, consolidation, amalgamation, replacement, conveyance, transfer
or
lease, the Trust (or the Successor Entity) will continue to be classified as
a
grantor trust for United States federal income tax purposes;
(viii)
the
Sponsor guarantees the obligations of such Successor Entity under the Successor
Securities to the same extent provided by the Guarantee, the Debentures and
this
Declaration; and
(ix)
prior
to
such merger, consolidation, amalgamation, replacement, conveyance, transfer
or
lease, the Institutional Trustee shall have received an Officers' Certificate
of
the Administrators and an opinion of counsel, each to the effect that all
conditions precedent of this paragraph (b) to such transaction have been
satisfied.
(c)
Notwithstanding
Section 2.15(b), the Trust shall not, except with the consent of Holders of
100%
in liquidation amount of the Securities, consolidate, amalgamate, merge with
or
into, or be replaced by, or convey, transfer or lease its properties and assets
as an entirety or substantially as an entirety to, any other Person or permit
any other Person to consolidate, amalgamate, merge with or into, or replace
it
if such consolidation, amalgamation, merger, replacement, conveyance, transfer
or lease would cause the Trust or Successor Entity to be classified as other
than a grantor trust for United States federal income tax purposes.
ARTICLE
III
SPONSOR
SECTION
3.1.
Sponsor's
Purchase of Common Securities
.
On the
Closing Date, the Sponsor will purchase all of the Common Securities issued
by
the Trust, in an amount at least equal to 3% of the capital of the Trust, at
the
same time as the Capital Securities are sold.
SECTION
3.2.
Responsibilities
of the Sponsor
.
In
connection with the issue and sale of the Capital Securities, the Sponsor shall
have the exclusive right and responsibility and sole decision to engage in,
or
direct the Administrators to engage in, the following activities:
(a)
to
determine the States in which to take appropriate action to qualify or register
for sale of all or part of the Capital Securities and to do any and all such
acts, other than actions which must be taken by the Trust, and advise the Trust
of actions it must take, and prepare for execution and filing any documents
to
be executed and filed by the Trust, as the Sponsor deems necessary or advisable
in order to comply with the applicable laws of any such States;
(b)
to
prepare for filing and request the Administrators to cause the filing by the
Trust, as may be appropriate, of an application to the PORTAL system, for
listing or quotation upon notice of issuance of any Capital Securities, as
requested by the Holders of not less than a Majority in liquidation amount
of
the Capital Securities; and
(c)
to
negotiate the terms of and/or execute and deliver on behalf of the Trust, the
Placement Agreement and other related agreements providing for the sale of
the
Capital Securities.
ARTICLE
IV
TRUSTEES
AND ADMINISTRATORS
SECTION
4.1.
Number
of Trustees
.
The
number of Trustees initially shall be two, and:
(a)
at
any
time before the issuance of any Securities, the Sponsor may, by written
instrument, increase or decrease the number of Trustees; and
(b)
after
the
issuance of any Securities, the number of Trustees may be increased or decreased
by vote of the Holder of a Majority in liquidation amount of the Common
Securities voting as a class at a meeting of the Holder of the Common
Securities;
provided
,
however
,
that
there shall be a Delaware Trustee if required by Section 4.2; and there shall
always be one Trustee who shall be the Institutional Trustee, and such Trustee
may also serve as Delaware Trustee if it meets the applicable requirements,
in
which case Section 2.11 shall have no application to such entity in its capacity
as Institutional Trustee.
SECTION
4.2.
Delaware
Trustee
.
If
required by the Statutory Trust Act, one Trustee (the "Delaware Trustee") shall
be:
(a)
a
natural
person who is a resident of the State of Delaware; or
(b)
if
not a
natural person, an entity which is organized under the laws of the United States
or any state thereof or the District of Columbia, has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law, including §3807 of the Statutory Trust Act.
SECTION
4.3.
Institutional
Trustee; Eligibility
.
(a)
There
shall at all times be one Trustee which shall act as Institutional Trustee
which
shall:
(i)
not
be an
Affiliate of the Sponsor;
(ii)
not
offer
or provide credit or credit enhancement to the Trust; and
(iii)
be
a
banking corporation or national association organized and doing business under
the laws of the United States of America or any state thereof or of the District
of Columbia and authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least fifty million U.S. dollars
($50,000,000), and subject to supervision or examination by federal, state
or
District of Columbia authority. If such corporation or national association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred to above, then
for the purposes of this Section 4.3(a)(iii), the combined capital and surplus
of such corporation or national association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b)
If
at any
time the Institutional Trustee shall cease to be eligible to so act under
Section 4.3(a), the Institutional Trustee shall immediately resign in the manner
and with the effect set forth in Section 4.7.
(c)
If
the
Institutional Trustee has or shall acquire any "conflicting interest" within
the
meaning of § 310(b) of the Trust Indenture Act, the Institutional Trustee shall
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to this Declaration.
(d)
The
initial Institutional Trustee shall be LaSalle Bank National
Association.
SECTION
4.4.
Certain
Qualifications of the Delaware Trustee Generally
.
The
Delaware Trustee shall be a U.S. Person and either a natural person who is
at
least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
SECTION
4.5.
Administrators
.
Each
Administrator shall be a U.S. Person.
There
shall at all times be at least one Administrator. Except where a requirement
for
action by a specific number of Administrators is expressly set forth in this
Declaration and except with respect to any action the taking of which is the
subject of a meeting of the Administrators, any action required or permitted
to
be taken by the Administrators may be taken by, and any power of the
Administrators may be exercised by, or with the consent of, any one such
Administrator acting alone.
SECTION
4.6.
Initial
Delaware Trustee
.
The
initial Delaware Trustee shall be LaSalle National Trust Delaware.
SECTION
4.7.
Appointment,
Removal and Resignation of the Trustees and the Administrators
.
(a)
No
resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of this Section 4.7.
(b)
Subject
to Section 4.7(a), a Relevant Trustee may resign at any time by giving written
notice thereof to the Holders of the Securities and by appointing a successor
Relevant Trustee, except in the case of the Delaware Trustee's successor which
shall be appointed by Holders of a Majority in liquidation amount of the Common
Securities. Upon the resignation of the Institutional Trustee, the Institutional
Trustee shall appoint a successor by requesting from at least three Persons
meeting the eligibility requirements their expenses and charges to serve as
the
successor Institutional Trustee on a form provided by the Administrators, and
selecting the Person who agrees to the lowest reasonable expense and charges
(the "Successor Institutional Trustee"). If the instrument of acceptance by
the
successor Relevant Trustee required by this Section 4.7 shall not have been
delivered to the Relevant Trustee within 60 days after the giving of such notice
of resignation or delivery of the instrument of removal, the Relevant Trustee
may petition, at the expense of the Trust, any federal, state or District of
Columbia court of competent jurisdiction for the appointment of a successor
Relevant Trustee. Such court may thereupon, after prescribing such notice,
if
any, as it may deem proper, appoint a Relevant Trustee. The Institutional
Trustee shall have no liability for the selection of such successor pursuant
to
this Section 4.7.
(c)
Unless
an
Event of Default shall have occurred and be continuing, any Trustee may be
removed at any time by an act of the Holders of a Majority in liquidation amount
of the Common Securities. If any Trustee shall be so removed, the Holders of
the
Common Securities, by act of the Holders of a Majority in liquidation amount
of
the Common Securities delivered to the Relevant Trustee, shall promptly appoint
a successor Relevant Trustee, and such successor Trustee shall comply with
the
applicable requirements of this Section 4.7. If an Event of Default shall have
occurred and be continuing, the Institutional Trustee or the Delaware Trustee,
or both of them, may be removed by the act of the Holders of a Majority in
liquidation amount of the Capital Securities, delivered to the Relevant Trustee
(in its individual capacity and on behalf of the Trust). If any Trustee shall
be
so removed, the Holders of Capital Securities, by act of the Holders of a
Majority in liquidation amount of the Capital Securities then outstanding
delivered to the Relevant Trustee, shall promptly appoint a successor Relevant
Trustee or Trustees, and such successor Trustee shall comply with the applicable
requirements of this Section 4.7. If no successor Relevant Trustee shall have
been so appointed by the Holders of a Majority in liquidation amount of the
Capital Securities and accepted appointment in the manner required by this
Section 4.7 within 30 days after delivery of an instrument of removal, the
Relevant Trustee or any Holder who has been a Holder of the Securities for
at
least six months may, on behalf of himself and all others similarly situated,
petition any federal, state or District of Columbia court of competent
jurisdiction for the appointment of a successor Relevant Trustee. Such court
may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a successor Relevant Trustee or Trustees.
(d)
The
Institutional Trustee shall give notice of each resignation and each removal
of
a Trustee and each appointment of a successor Trustee to all Holders and to
the
Sponsor. Each notice shall include the name of the successor Relevant Trustee
and the address of its Corporate Trust Office if it is the Institutional
Trustee.
(e)
Notwithstanding
the foregoing or any other provision of this Declaration, in the event a
Delaware Trustee who is a natural person dies or is adjudged by a court to
have
become incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by the Institutional Trustee (provided
the Institutional Trustee satisfies the requirements of a Delaware Trustee
as
set forth in Section 4.2) following the procedures in this Section 4.7 (the
"Successor Delaware Trustee").
(f)
In
case
of the appointment hereunder of a successor Relevant Trustee, the retiring
Relevant Trustee and each successor Relevant Trustee with respect to the
Securities shall execute and deliver an amendment hereto wherein each successor
Relevant Trustee shall accept such appointment and which (a) shall contain
such
provisions as shall be necessary or desirable to transfer and confirm to, and
to
vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Securities and
the
Trust and (b) shall add to or change any of the provisions of this Declaration
as shall be necessary to provide for or facilitate the administration of the
Trust by more than one Relevant Trustee, it being understood that nothing herein
or in such amendment shall constitute such Relevant Trustees co-trustees and
upon the execution and delivery of such amendment the resignation or removal
of
the retiring Relevant Trustee shall become effective to the extent provided
therein and each such successor Relevant Trustee, without any further act,
deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee; but, on request of the Trust or any
successor Relevant Trustee, such retiring Relevant Trustee shall duly assign,
transfer and deliver to such successor Relevant Trustee all Trust Property,
all
proceeds thereof and money held by such retiring Relevant Trustee hereunder
with
respect to the Securities and the Trust subject to the payment of all unpaid
fees, expenses and indemnities of such retiring Relevant Trustee.
(g)
No
Institutional Trustee or Delaware Trustee shall be liable for the acts or
omissions to act of any Successor Institutional Trustee or Successor Delaware
Trustee, as the case may be.
(h)
The
Holders of the Capital Securities will have no right to vote to appoint, remove
or replace the Administrators, which voting rights are vested exclusively in
the
Holders of the Common Securities.
(i)
Any
successor Delaware Trustee shall file an amendment to the Certificate of Trust
with the Secretary of State of the State of Delaware identifying the name and
principal place of business of such Delaware Trustee in the State of
Delaware.
SECTION
4.8.
Vacancies
Among Trustees
.
If a
Trustee ceases to hold office for any reason and the number of Trustees is
not
reduced pursuant to Section 4.1, or if the number of Trustees is increased
pursuant to Section 4.1, a vacancy shall occur. A resolution certifying the
existence of such vacancy by the Trustees or, if there are more than two, a
majority of the Trustees shall be conclusive evidence of the existence of such
vacancy. The vacancy shall be filled with a Trustee appointed in accordance
with
Section 4.7.
SECTION
4.9.
Effect
of Vacancies
.
The
death, resignation, retirement, removal, bankruptcy, dissolution, liquidation,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to dissolve, terminate or annul the Trust or terminate this Declaration.
Whenever a vacancy in the number of Trustees shall occur, until such vacancy
is
filled by the appointment of a Trustee in accordance with Section 4.7, the
Institutional Trustee shall have all the powers granted to the Trustees and
shall discharge all the duties imposed upon the Trustees by this
Declaration.
SECTION
4.10.
Meetings
of the Trustees and the Administrators
.
Meetings of the Trustees or the Administrators shall be held from time to time
upon the call of any Trustee or Administrator, as applicable. Regular meetings
of the Trustees and the Administrators, respectively, may be in person in the
United States or by telephone, at a place (if applicable) and time fixed by
resolution of the Trustees or the Administrators, as applicable. Notice of
any
in-person meetings of the Trustees or the Administrators shall be hand delivered
or otherwise delivered in writing (including by facsimile, with a hard copy
by
overnight courier) not less than 48 hours before such meeting. Notice of any
telephonic meetings of the Trustees or the Administrators or any committee
thereof shall be hand delivered or otherwise delivered in writing (including
by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of a Trustee or an Administrator, as the case may be, at a meeting
shall constitute a waiver of notice of such meeting except where a Trustee
or an
Administrator, as the case may be, attends a meeting for the express purpose
of
objecting to the transaction of any activity on the ground that the meeting
has
not been lawfully called or convened. Unless provided otherwise in this
Declaration, any action of the Trustees or the Administrators, as the case
may
be, may be taken at a meeting by vote of a majority of the Trustees or the
Administrators present (whether in person or by telephone) and eligible to
vote
with respect to such matter;
provided
,
that,
in the case of the Administrators, a Quorum is present, or without a meeting
by
the unanimous written consent of the Trustees or the Administrators, as the
case
may be. Meetings of the Trustees and the Administrators together shall be held
from time to time upon the call of any Trustee or Administrator.
SECTION
4.11.
Delegation
of Power
.
(a)
Any
Trustee or any Administrator, as the case may be, may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 that is a U.S. Person his or her power for the purpose of executing
any documents, instruments or other writings contemplated in Section
2.6.
(b)
The
Trustees shall have power to delegate from time to time to such of their number
or to any officer of the Trust that is a U.S. Person, the doing of such things
and the execution of such instruments or other writings either in the name
of
the Trust or the names of the Trustees or otherwise as the Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law
or
contrary to the provisions of the Trust, as set forth herein.
SECTION
4.12.
Merger,
Conversion, Consolidation or Succession to Business
.
Any
Person into which the Institutional Trustee or the Delaware Trustee, as the
case
may be, may be merged or converted or with which either may be consolidated,
or
any Person resulting from any merger, conversion or consolidation to which
the
Institutional Trustee or the Delaware Trustee, as the case may be, shall be
a
party, or any Person succeeding to all or substantially all the corporate trust
business of the Institutional Trustee or the Delaware Trustee, as the case
may
be, shall be the successor of the Institutional Trustee or the Delaware Trustee,
as the case may be, hereunder, without the execution or filing of any paper
or
any further act on the part of any of the parties hereto, provided such Person
shall be otherwise qualified and eligible under this Article and, provided,
further, that such Person shall file an amendment to the Certificate of Trust
with the Secretary of State of the State of Delaware as contemplated in Section
4.7(i).
ARTICLE
V
DISTRIBUTIONS
SECTION
5.1.
Distributions
.
(a)
Holders
shall receive Distributions in accordance with the applicable terms of the
relevant Holder's Securities. Distributions shall be made on the Capital
Securities and the Common Securities in accordance with the preferences set
forth in their respective terms. If and to the extent that the Debenture Issuer
makes a payment of interest (including any Additional Interest or Deferred
Interest) or premium, if any, on and/or principal on the Debentures held by
the
Institutional Trustee (the amount of any such payment being a "Payment Amount"),
the Institutional Trustee shall and is directed, to the extent funds are
available in the Property Account for that purpose, to make a distribution
(a
"Distribution") of the Payment Amount to Holders. For the avoidance of doubt,
funds in the Property Account shall not be distributed to Holders to the extent
of any taxes payable by the Trust, in the case of withholding taxes, as
determined by the Institutional Trustee or any Paying Agent and, in the case
of
taxes other than withholding tax taxes, as determined by the Administrators
in a
written notice to the Institutional Trustee.
(b)
As
a
condition to the payment of any principal of or interest on the Securities
without the imposition of withholding tax, the Administrators shall require
the
previous delivery of properly completed and signed applicable U.S. federal
income tax certifications (generally, an Internal Revenue Service Form W-9
(or
applicable successor form) in the case of a person that is a "United States
person" within the meaning of Section 7701(a)(30) of the Code or an Internal
Revenue Service Form W-8 (or applicable successor form) in the case of a person
that is not a "United States person" within the meaning of Section 7701(a)(30)
of the Code, and any other certification acceptable to it to enable the
Institutional Trustee or any Paying Agent to determine their respective duties
and liabilities with respect to any taxes or other charges that they may be
required to pay, deduct or withhold in respect of such Securities.
ARTICLE
VI
ISSUANCE
OF SECURITIES
SECTION
6.1.
General
Provisions Regarding Securities
.
(a)
The
Administrators shall on behalf of the Trust issue one series of capital
securities, evidenced by a certificate substantially in the form of Exhibit
A-1,
representing undivided beneficial interests in the assets of the Trust and
having such terms as are set forth in Annex I (the "Capital Securities"), and
one series of common securities, evidenced by a certificate substantially in
the
form of Exhibit A-2, representing undivided beneficial interests in the assets
of the Trust and having such terms as are set forth in Annex I (the "Common
Securities"). The Trust shall issue no securities or other interests in the
assets of the Trust other than the Capital Securities and the Common Securities.
The Capital Securities rank
pari
passu
and
payment thereon shall be made Pro Rata with the Common Securities except that,
where an Event of Default has occurred and is continuing, the rights of Holders
of the Common Securities to payment in respect of Distributions and payments
upon liquidation, redemption and otherwise are subordinated to the rights to
payment of the Holders of the Capital Securities.
(b)
The
Certificates shall be signed on behalf of the Trust by one or more
Administrators. Such signature shall be the facsimile or manual signature of
any
Administrator. In case any Administrator of the Trust who shall have signed
any
of the Securities shall cease to be such Administrator before the Certificates
so signed shall be delivered by the Trust, such Certificates nevertheless may
be
delivered as though the person who signed such Certificates had not ceased
to be
such Administrator. Any Certificate may be signed on behalf of the Trust by
such
person who, at the actual date of execution of such Security, shall be an
Administrator of the Trust, although at the date of the execution and delivery
of the Declaration any such person was not such an Administrator. A Capital
Security shall not be valid until authenticated by the manual signature of
an
Authorized Officer of the Institutional Trustee. Such signature shall be
conclusive evidence that the Capital Security has been authenticated under
this
Declaration. Upon written order of the Trust signed by one Administrator, the
Institutional Trustee shall authenticate the Capital Securities for original
issue. The Institutional Trustee may appoint an authenticating agent that is
a
U.S. Person acceptable to the Trust to authenticate the Capital Securities.
A
Common Security need not be so authenticated and shall be valid upon execution
by one or more Administrators.
(c)
The
Capital Securities issued pursuant to Regulation S of the Securities Act or
to
QIBs shall be, except as provided in Section 6.4, Book-Entry Capital Securities
issued in the form of one or more Global Capital Securities registered in the
name of the Depositary, or its nominee and deposited with the Depositary or
a
custodian for the Depositary for credit by the Depositary to the respective
accounts of the Depositary Participants thereof (or such other accounts as
they
may direct).
(d)
The
consideration received by the Trust for the issuance of the Securities shall
constitute a contribution to the capital of the Trust and shall not constitute
a
loan to the Trust.
(e)
Upon
issuance of the Securities as provided in this Declaration, the Securities
so
issued shall be deemed to be validly issued, fully paid and non-assessable,
and
each Holder thereof shall be entitled to the benefits provided by this
Declaration.
(f)
Every
Person, by virtue of having become a Holder in accordance with the terms of
this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration and the Guarantee.
SECTION
6.2.
Paying
Agent, Transfer Agent, Calculation Agent and Registrar
.
(a)
The
Trust
shall maintain an office or agency where the Securities may be presented for
payment (the "Paying Agent"), and an office or agency where Securities may
be
presented for registration of transfer or exchange (the "Transfer Agent").
The
Trust hereby appoints the Institutional Trustee as Paying Agent and Transfer
Agent at LaSalle Bank National Association, CDO Trust Services Group, 135 South
LaSalle Street, Suite 1511, Chicago, Illinois 60603 - Wilshire Statutory Trust
IV. The Trust shall also keep or cause to be kept a register for the purpose
of
registering Securities and transfers and exchanges of Securities, such register
to be held by a registrar (the "Registrar"). The Administrators may appoint
the
Paying Agent, the Registrar and the Transfer Agent, and may appoint one or
more
additional Paying Agents, one or more co-Registrars, or one or more co-Transfer
Agents in such other locations as it shall determine. The term "Paying Agent"
includes any additional Paying Agent, the term "Registrar" includes any
additional Registrar or co-Registrar and the term "Transfer Agent" includes
any
additional Transfer Agent or co-Transfer Agent. The Administrators may change
any Paying Agent, Transfer Agent or Registrar at any time without prior notice
to any Holder. The Administrators shall notify the Institutional Trustee of
the
name and address of any Paying Agent, Transfer Agent and Registrar not a party
to this Declaration. The Administrators hereby initially appoint the
Institutional Trustee to act as Registrar for the Capital Securities and the
Common Securities at its Corporate Trust Office. The Institutional Trustee
or
any of its Affiliates in the United States may act as Paying Agent, Transfer
Agent or Registrar.
(b)
The
Trust
shall also appoint a Calculation Agent, which shall determine the Coupon Rate
in
accordance with the terms of the Securities. The Trust initially appoints the
Institutional Trustee as Calculation Agent.
SECTION
6.3.
Form
and Dating
.
(a)
The
Capital Securities and the Institutional Trustee's certificate of authentication
thereon shall be substantially in the form of Exhibit A-1, and the Common
Securities shall be substantially in the form of Exhibit A-2, each of which
is
hereby incorporated in and expressly made a part of this Declaration.
Certificates may be typed, printed, lithographed or engraved or may be produced
in any other manner as is reasonably acceptable to the Administrators, as
conclusively evidenced by their execution thereof. The Certificates may have
letters, numbers, notations or other marks of identification or designation
and
such legends or endorsements required by law, stock exchange rule, agreements
to
which the Trust is subject, if any, or usage (provided, that any such notation,
legend or endorsement is in a form acceptable to the Sponsor). The Trust at
the
direction of the Sponsor shall furnish any such legend not contained in Exhibit
A-1 to the Institutional Trustee in writing. Each Capital Security shall be
dated the date of its authentication. The terms and provisions of the Securities
set forth in Annex I and the forms of Securities set forth in Exhibits A-1
and
A-2 are part of the terms of this Declaration and to the extent applicable,
the
Institutional Trustee, the Delaware Trustee, the Administrators and the Sponsor,
by their execution and delivery of this Declaration, expressly agree to such
terms and provisions and to be bound thereby. Capital Securities will be issued
only in blocks having a stated liquidation amount of not less than $100,000
and
multiples of $1,000 in excess thereof.
(b)
The
Capital Securities sold by the Trust to the initial purchasers pursuant to
the
Placement Agreement and the Capital Securities Purchase Agreements shall be
issued in book entry form, registered in the name of Cede & Co., as nominee
on behalf of the Depository Trust Company, without coupons, and held by the
Institutional Trustee as custodian for the Depository Trust
Company.
SECTION
6.4.
Book-Entry
Capital Securities
.
(a)
A
Global
Capital Security may be exchanged, in whole or in part, for Definitive Capital
Securities Certificates registered in the names of Owners only if such exchange
complies with Article VIII and (i) the Depositary advises the
Administrators and the Institutional Trustee in writing that the Depositary
is
no longer willing or able properly to discharge its responsibilities with
respect to the Global Capital Security, and no qualified successor is appointed
by the Administrators within ninety (90) days of receipt of such notice,
(ii) the Depositary ceases to be a clearing agency registered under the
Exchange Act and the Administrators fail to appoint a qualified successor within
ninety (90) days of obtaining knowledge of such event, (iii) the Administrators
at their option advise the Institutional Trustee in writing that the Trust
elects to terminate the book-entry system through the Depositary or (iv) an
Indenture Event of Default has occurred and is continuing. Upon the occurrence
of any event specified in clause (i), (ii), (iii) or (iv) above, the
Administrators shall notify the Depositary and instruct the Depositary to notify
all Owners of Book-Entry Capital Securities and the Institutional Trustee of
the
occurrence of such event and of the availability of Definitive Capital
Securities Certificates to Owners of the Capital Securities requesting the
same.
Upon the issuance of Definitive Capital Securities Certificates, the
Administrators and the Institutional Trustee shall recognize the Holders of
the
Definitive Capital Securities Certificates as Holders. Notwithstanding the
foregoing, if an Owner of a beneficial interest in a Global Capital Security
wishes at any time to transfer an interest in such Global Capital Security
to a
Person other than a QIB, such transfer shall be effected, subject to the
Applicable Depository Procedures, in accordance with the provisions of this
Section 6.4 and Article VIII, and the transferee shall receive a Definitive
Capital Securities Certificate in connection with such transfer. A holder of
a
Definitive Capital Securities Certificate that is a QIB may upon request, and
in
accordance with the provisions of this Section 6.4 and Article VIII, exchange
such Definitive Capital Securities Certificate for a beneficial interest in
a
Global Capital Security.
(b)
If
any
Global Capital Security is to be exchanged for Definitive Capital Securities
Certificates or canceled in part, or if any Definitive Capital Securities
Certificate is to be exchanged in whole or in part for any Global Capital
Security, then either (i) such Global Capital Security shall be so surrendered
for exchange or cancellation as provided in this Section 6.4 and Article VIII
or
(ii) the aggregate liquidation amount represented by such Global Capital
Security shall be reduced, subject to Section 6.3, or increased by an amount
equal to the liquidation amount represented by that portion of the Global
Capital Security to be so exchanged or canceled, or equal to the liquidation
amount represented by such Definitive Capital Securities Certificates to be
so
exchanged for any Global Capital Security, as the case may be, by means of
an
appropriate adjustment made on the records of the Securities Registrar,
whereupon the Institutional Trustee, in accordance with the Applicable
Depositary Procedures, shall instruct the Depositary or its authorized
representative to make a corresponding adjustment to its records. Upon any
such
surrender to the Administrators or the Registrar of any Global Capital Security
or Securities by the Depositary, accompanied by registration instructions,
the
Administrators, or any one of them, shall execute the Definitive Capital
Securities Certificates in accordance with the instructions of the Depositary.
None of the Registrar, Administrators, or the Institutional Trustee shall be
liable for any delay in delivery of such instructions and may conclusively
rely
on, and shall be fully protected in relying on, such instructions.
(c)
Every
Definitive Capital Securities Certificate executed and delivered upon
registration or transfer of, or in exchange for or in lieu of, a Global Capital
Security or any portion thereof shall be executed and delivered in the form
of,
and shall be, a Global Capital Security, unless such Definitive Capital
Securities Certificate is registered in the name of a Person other than the
Depositary for such Global Capital Security or a nominee thereof.
(d)
The
Depositary or its nominee, as registered owner of a Global Capital Security,
shall be the Holder of such Global Capital Security for all purposes under
this
Declaration and the Global Capital Security, and Owners with respect to a Global
Capital Security shall hold such interests pursuant to the Applicable Depositary
Procedures. The Registrar, the Administrators and the Institutional Trustee
shall be entitled to deal with the Depositary for all purposes of this
Declaration relating to the Global Capital Securities (including the payment
of
the liquidation amount of and Distributions on the Book-Entry Capital Securities
represented thereby and the giving of instructions or directions by Owners
of
Book-Entry Capital Securities represented thereby and the giving of notices)
as
the sole Holder of the Book-Entry Capital Securities represented thereby and
shall have no obligations to the Owners thereof. None of the Administrators,
the
Institutional Trustee nor the Registrar shall have any liability in respect
of
any transfers effected by the Depositary.
(e)
The
rights of the Owners of the Book-Entry Capital Securities shall be exercised
only through the Depositary and shall be limited to those established by law,
the Applicable Depositary Procedures and agreements between such Owners and
the
Depositary and/or the Depositary Participants;
provided
,
solely
for the purpose of determining whether the Holders of the requisite amount
of
Capital Securities have voted on any matter provided for in this Declaration,
to
the extent that Capital Securities are represented by a Global Capital Security,
the Administrators and the Institutional Trustee may conclusively rely on,
and
shall be fully protected in relying on, any written instrument (including a
proxy) delivered to the Institutional Trustee by the Depositary setting forth
the Owners' votes or assigning the right to vote on any matter to any other
Persons either in whole or in part. To the extent that Capital Securities are
represented by a Global Capital Security, the initial Depositary will make
book-entry transfers among the Depositary Participants and receive and transmit
payments on the Capital Securities that are represented by a Global Capital
Security to such Depositary Participants, and none of the Sponsor, the
Administrators or the Institutional Trustee shall have any responsibility or
obligation with respect thereto.
(f)
To
the
extent that a notice or other communication to the Holders is required under
this Declaration, for so long as Capital Securities are represented by a Global
Capital Security, the Administrator and the Institutional Trustee shall give
all
such notices and communications to the Depositary, and shall have no obligations
to the Owners.
SECTION
6.5.
Mutilated,
Destroyed, Lost or Stolen Certificates
.
If: (a)
any mutilated Certificates should be surrendered to the Registrar, or if the
Registrar shall receive evidence to its satisfaction of the destruction, loss
or
theft of any Certificate; and (b) there shall be delivered to the Registrar,
the
Administrators and the Institutional Trustee such security or indemnity as
may
be required by them to hold each of them harmless; then, in the absence of
notice that such Certificate shall have been acquired by a bona fide purchaser,
an Administrator on behalf of the Trust shall execute (and in the case of a
Capital Security Certificate, the Institutional Trustee shall authenticate)
and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or
stolen Certificate, a new Certificate of like denomination. In connection with
the issuance of any new Certificate under this Section 6.5, the Registrar or
the
Administrators may require the payment of a sum sufficient to cover any tax
or
other governmental charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the relevant Securities, as
if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION
6.6.
Temporary
Securities
.
Until
definitive Securities are ready for delivery, the Administrators may prepare
and, in the case of the Capital Securities, the Institutional Trustee shall
authenticate, temporary Securities. Temporary Securities shall be substantially
in form of definitive Securities but may have variations that the Administrators
consider appropriate for temporary Securities. Without unreasonable delay,
the
Administrators shall prepare and, in the case of the Capital Securities, the
Institutional Trustee shall authenticate definitive Securities in exchange
for
temporary Securities.
SECTION
6.7.
Cancellation
.
The
Administrators at any time may deliver Securities to the Registrar for
cancellation. The Registrar shall forward to the Institutional Trustee any
Securities surrendered to it for registration of transfer, redemption or
payment. The Institutional Trustee shall promptly cancel all Securities
surrendered for registration of transfer, payment, replacement or cancellation
and shall dispose of such canceled Securities in accordance with its standard
procedures or otherwise as the Administrators direct. The Administrators may
not
issue new Securities to replace Securities that have been paid or, except for
Securities surrendered for purposes of transfer or exchange, that have been
delivered to the Institutional Trustee for cancellation.
SECTION
6.8.
Rights
of Holders; Waivers of Past Defaults
.
(a)
The
legal
title to the Trust Property is vested exclusively in the Institutional Trustee
(in its capacity as such) in accordance with Section 2.5, and the Holders shall
not have any right or title therein other than the undivided beneficial interest
in the assets of the Trust conferred by their Securities and they shall have
no
right to call for any partition or division of property, profits or rights
of
the Trust except as described below. The Securities shall be personal property
giving only the rights specifically set forth therein and in this Declaration.
The Securities shall have no, and the issuance of the Securities shall not
be
subject to, preemptive or other similar rights and when issued and delivered
to
Holders against payment of the purchase price therefor, the Securities will
be
fully paid and nonassessable by the Trust.
(b)
For
so
long as any Capital Securities remain outstanding, if, upon an Indenture Event
of Default under paragraphs (c), (e), (f) or (g) of Section 5.01 of the
Indenture, the Debenture Trustee fails or the holders of not less than 25%
in
principal amount of the outstanding Debentures fail to declare the principal
of
all of the Debentures to be immediately due and payable, the Holders of not
less
than a Majority in liquidation amount of the Capital Securities then outstanding
shall have the right to make such declaration by a notice in writing to the
Institutional Trustee, the Sponsor and the Debenture Trustee.
(c)
Upon
an
Indenture Event of Default under paragraphs (c), (e), (f) or (g) of Section
5.01
of the Indenture at any time after a declaration of acceleration of maturity
of
the Debentures has been made and before a judgment or decree for payment of
the
money due has been obtained by the Debenture Trustee as provided in the
Indenture, if the Institutional Trustee, subject to the provisions hereof,
fails
to annul any such declaration and waive such default, the Holders of not less
than a Majority in liquidation amount of the Capital Securities, by written
notice to the Institutional Trustee, the Sponsor and the Debenture Trustee,
may
rescind and annul such declaration and its consequences if:
(i)
the
Sponsor has paid or deposited with the Debenture Trustee a sum sufficient to
pay
(A)
all
overdue installments of interest on all of the Debentures;
(B)
any
accrued Deferred Interest on all of the Debentures;
(C)
all
payments on any Debentures that have become due otherwise than by such
declaration of acceleration and interest and Deferred Interest thereon at the
rate borne by the Debentures; and
(D)
all
sums
paid or advanced by the Debenture Trustee under the Indenture and the reasonable
compensation, documented expenses, disbursements and advances of the Debenture
Trustee and the Institutional Trustee, their agents and counsel;
and
(ii)
all
Events of Default with respect to the Debentures, other than the non-payment
of
the principal of or premium, if any, on the Debentures that has become due
solely by such acceleration, have been cured or waived as provided in Section
5.07 of the Indenture.
(d)
The
Holders of not less than a Majority in liquidation amount of the Capital
Securities may, on behalf of the Holders of all the Capital Securities, waive
any past default or Event of Default, except a default or Event of Default
in
the payment of principal or interest (unless such default or Event of Default
has been cured and a sum sufficient to pay all matured installments of interest
and principal due otherwise than by acceleration has been deposited with the
Debenture Trustee) or a default or Event of Default in respect of a covenant
or
provision that under the Indenture cannot be modified or amended without the
consent of the holder of each outstanding Debenture. No such rescission shall
affect any subsequent default or impair any right consequent
thereon.
(e)
Upon
receipt by the Institutional Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of any part of
the
Capital Securities, a record date shall be established for determining Holders
of outstanding Capital Securities entitled to join in such notice, which record
date shall be at the close of business on the day the Institutional Trustee
receives such notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice,
whether or not such Holders remain Holders after such record date; provided,
that, unless such declaration of acceleration, or rescission and annulment,
as
the case may be, shall have become effective by virtue of the requisite
percentage having joined in such notice prior to the day that is 90 days after
such record date, such notice of declaration of acceleration, or rescission
and
annulment, as the case may be, shall automatically and without further action
by
any Holder be canceled and of no further effect. Nothing in this paragraph
shall
prevent a Holder, or a proxy of a Holder, from giving, after expiration of
such
90-day period, a new written notice of declaration of acceleration, or
rescission and annulment thereof, as the case may be, that is identical to
a
written notice that has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established pursuant to
the
provisions of this Section 6.8.
(f)
Except
as
otherwise provided in this Section 6.8, the Holders of not less than a Majority
in liquidation amount of the Capital Securities may, on behalf of the Holders
of
all the Capital Securities, waive any past default or Event of Default and
its
consequences. Upon such waiver, any such default or Event of Default shall
cease
to exist, and any default or Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Declaration, but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon.
ARTICLE
VII
DISSOLUTION
AND TERMINATION OF TRUST
SECTION
7.1.
Dissolution
and Termination of Trust
.
(a)
The
Trust
shall dissolve on the first to occur of
(i)
unless
earlier dissolved, on September 15, 2042, the expiration of the term of the
Trust;
(ii)
a
Bankruptcy Event with respect to the Sponsor, the Trust or the Debenture
Issuer;
(iii)
(other
than in connection with a merger, consolidation or similar transaction not
prohibited by the Indenture, this Declaration or the Guarantee, as the case
may
be) the filing of a certificate of dissolution or its equivalent with respect
to
the Sponsor or upon the revocation of the charter of the Sponsor and the
expiration of 90 days after the date of revocation without a reinstatement
thereof;
(iv)
the
distribution of all of the Debentures to the Holders of the Securities, upon
exercise of the right of the Holders of all of the outstanding Common Securities
to dissolve the Trust as provided in Annex I hereto;
(v)
the
entry
of a decree of judicial dissolution of any Holder of the Common Securities,
the
Sponsor, the Trust or the Debenture Issuer;
(vi)
when
all
of the Securities shall have been called for redemption and the amounts
necessary for redemption thereof shall have been paid to the Holders in
accordance with the terms of the Securities; or
(vii)
before
the issuance of any Securities, with the consent of all of the Trustees and
the
Sponsor.
(b)
As
soon
as is practicable after the occurrence of an event referred to in Section
7.1(a), and after satisfaction of liabilities to creditors of the Trust as
required by applicable law, including Section 3808 of the Statutory Trust Act,
and subject to the terms set forth in Annex I, the Delaware Trustee, when
notified in writing of the completion of the winding up of the Trust in
accordance with the Statutory Trust Act, shall terminate the Trust by filing,
at
the expense of the Sponsor, a certificate of cancellation with the Secretary
of
State of the State of Delaware.
(c)
The
provisions of Section 2.9 and Article IX shall survive the termination of the
Trust.
ARTICLE
VIII
TRANSFER
OF INTERESTS
SECTION
8.1.
General
.
(a)
Subject
to Section 6.4 and Section 8.1(c), when Capital Securities are presented to
the
Registrar with a request to register a transfer or to exchange them for an
equal
number of Capital Securities represented by different Certificates, the
Registrar shall register the transfer or make the exchange if the requirements
provided for herein for such transactions are met. To permit registrations
of
transfers and exchanges, the Trust shall issue and the Institutional Trustee
shall authenticate Capital Securities at the Registrar's request.
(b)
Upon
issuance of the Common Securities, the Sponsor shall acquire and retain
beneficial and record ownership of the Common Securities and, for so long as
the
Securities remain outstanding, the Sponsor shall maintain 100% ownership of
the
Common Securities; provided, however, that any permitted successor of the
Sponsor under the Indenture that is a U.S. Person may succeed to the Sponsor's
ownership of the Common Securities.
(c)
Capital
Securities may only be transferred, in whole or in part, in accordance with
the
terms and conditions set forth in this Declaration and in the terms of the
Capital Securities. To the fullest extent permitted by applicable law, any
transfer or purported transfer of any Security not made in accordance with
this
Declaration shall be null and void and will be deemed to be of no legal effect
whatsoever and any such transferee shall be deemed not to be the holder of
such
Capital Securities for any purpose, including but not limited to the receipt
of
Distributions on such Capital Securities, and such transferee shall be deemed
to
have no interest whatsoever in such Capital Securities.
(d)
The
Registrar shall provide for the registration of Securities and of transfers
of
Securities, which will be effected without charge but only upon payment (with
such indemnity as the Registrar may require) in respect of any tax or other
governmental charges that may be imposed in relation to it. Upon surrender
for
registration of transfer of any Securities, the Registrar shall cause one or
more new Securities to be issued in the name of the designated transferee or
transferees. Any Security issued upon any registration of transfer or exchange
pursuant to the terms of this Declaration shall evidence the same Security
and
shall be entitled to the same benefits under this Declaration as the Security
surrendered upon such registration of transfer or exchange. Every Security
surrendered for registration of transfer shall be accompanied by a written
instrument of transfer in form satisfactory to the Registrar duly executed
by
the Holder or such Holder's attorney duly authorized in writing. Each Security
surrendered for registration of transfer shall be canceled by the Institutional
Trustee pursuant to Section 6.7. A transferee of a Security shall be entitled
to
the rights and subject to the obligations of a Holder hereunder upon the receipt
by such transferee of a Security. By acceptance of a Security, each transferee
shall be deemed to have agreed to be bound by this Declaration.
(e)
Neither
the Trust nor the Registrar shall be required (i) to issue, register the
transfer of, or exchange any Securities during a period beginning at the opening
of business 15 days before the day of any selection of Securities for redemption
and ending at the close of business on the earliest date on which the relevant
notice of redemption is deemed to have been given to all Holders of the
Securities to be redeemed, or (ii) to register the transfer or exchange of
any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION
8.2.
Transfer
Procedures and Restrictions
.
(a)
The
Capital Securities shall bear the Restricted Securities Legend (as defined
below), which shall not be removed unless there is delivered to the Trust such
satisfactory evidence, which may include an opinion of counsel reasonably
acceptable to the Administrators and the Institutional Trustee, as may be
reasonably required by the Trust or the Institutional Trustee, that neither
the
legend nor the restrictions on transfer set forth therein are required to ensure
that transfers thereof comply with the provisions of the Securities Act or
that
such Securities are not "restricted" within the meaning of Rule 144 under the
Securities Act. Upon provision of such satisfactory evidence, the Institutional
Trustee, at the written direction of the Administrators, shall authenticate
and
deliver Capital Securities that do not bear the Restricted Securities Legend
(other than the legend contemplated by Section 8.2(d)).
(b)
When
Capital Securities are presented to the Registrar (x) to register the transfer
of such Capital Securities, or (y) to exchange such Capital Securities for
an
equal number of Capital Securities represented by different Certificates, the
Registrar shall register the transfer or make the exchange as requested if
its
reasonable requirements for such transaction are met;
provided
,
however
,
that
the Capital Securities surrendered for registration of transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer in
form reasonably satisfactory to the Administrators, the Institutional Trustee
and the Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
(c)
Except
as
permitted by Section 8.2(a), each Capital Security shall bear a legend (the
"Restricted Securities Legend") in substantially the following
form:
THIS
CAPITAL SECURITY IS A GLOBAL CAPITAL SECURITY WITHIN THE MEANING OF THE
DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY ("DTC") OR A NOMINEE OF DTC. THIS CAPITAL SECURITY
IS
EXCHANGEABLE FOR CAPITAL SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
DECLARATION, AND NO TRANSFER OF THIS CAPITAL SECURITY (OTHER THAN A TRANSFER
OF
THIS CAPITAL SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE
OF
DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS
THIS CAPITAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO
WILSHIRE
STATUTORY TRUST IV
OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CAPITAL
SECURITY ISSUED IS REGISTERED AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC (AND ANY PAYMENT HEREON IS MADE TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL
OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO THE DEBENTURE ISSUER OR THE
TRUST, (B) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO
A
PERSON THE HOLDER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING
MADE IN RELIANCE ON RULE 144A, (C) TO A "NON U.S. PERSON" IN AN "OFFSHORE
TRANSACTION" PURSUANT TO REGULATION S UNDER THE SECURITIES ACT, (D)
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1),
(2),
(3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN "ACCREDITED INVESTOR," FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT
TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE DEBENTURE ISSUER'S AND THE TRUST'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
TO
EACH OF THEM IN ACCORDANCE WITH THE AMENDED AND RESTATED DECLARATION OF TRUST,
A
COPY OF WHICH MAY BE OBTAINED FROM THE DEBENTURE ISSUER OR THE TRUST. THE HOLDER
OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY WITH THE
FOREGOING RESTRICTIONS.
THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS AND WARRANTS
THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS SECURITY UNLESS
SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT OR AN APPLICABLE
EXEMPTION THEREFROM.
THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT
OR
OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), (EACH A "PLAN"), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT
IN THE ENTITY AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN MAY ACQUIRE
OR
HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER
IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS
NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT
TO
SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING
THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING
OF
SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT
RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975
OF
THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.
IN
CONNECTION WITH ANY TRANSFER, THE HOLDER OF THE CERTIFICATE WILL DELIVER TO
THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY
BE
REQUIRED BY THE AMENDED AND RESTATED DECLARATION OF TRUST TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A
LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS
THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING A LIQUIDATION
AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER
OF THIS SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT
OF
DISTRIBUTIONS ON THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED
TO
HAVE NO INTEREST WHATSOEVER IN THIS SECURITY.
(d)
Capital
Securities may only be transferred in minimum blocks of $100,000 aggregate
liquidation amount (100 Capital Securities) and multiples of $1,000 in excess
thereof. Any attempted transfer of Capital Securities in a block having an
aggregate liquidation amount of less than $100,000 shall be deemed to be void
and of no legal effect whatsoever. Any such purported transferee shall be deemed
not to be a Holder of such Capital Securities for any purpose, including, but
not limited to, the receipt of Distributions on such Capital Securities, and
such purported transferee shall be deemed to have no interest whatsoever in
such
Capital Securities.
(e)
Each
party hereto understands and hereby agrees that the initial purchaser is
intended solely to be an interim holder of the Capital Securities and is
purchasing such securities to facilitate consummation of the transactions
contemplated herein and in the documents ancillary hereto. Notwithstanding
any
provision in this Declaration to the contrary, the initial purchaser shall
have
the right upon notice (a "Transfer Notice") to the Institutional Trustee and
the
Sponsor to transfer title in and to the Capital Securities; provided the initial
purchaser shall take reasonable steps to ensure that such transfer is exempt
from registration under the Securities Act of 1933, as amended, and rules
promulgated thereunder. Any Transfer Notice delivered to the Institutional
Trustee and Sponsor pursuant to the preceding sentence shall indicate the
aggregate liquidation amount of Capital Securities being transferred, the name
and address of the transferee thereof (the "Transferee") and the date of such
transfer. Notwithstanding any provision in this Declaration to the contrary,
the
transfer by the initial purchaser of title in and to the Capital Securities
pursuant to a Transfer Notice shall not be subject to any requirement relating
to Opinions of Counsel, Certificates of Transfer or any other Opinion or
Certificate applicable to transfers hereunder and relating to Capital
Securities.
(f)
Neither
the Institutional Trustee nor the Registrar shall be responsible for
ascertaining whether any transfer hereunder complies with the registration
provisions of or any exemptions from the Securities Act, applicable state
securities laws or the applicable laws of any other jurisdiction, ERISA, the
Code or the Investment Company Act.
SECTION
8.3.
Deemed
Security Holders
.
The
Trust, the Administrators, the Trustees, the Paying Agent, the Transfer Agent
or
the Registrar may treat the Person in whose name any Certificate shall be
registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to
or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust, the
Administrators, the Trustees, the Paying Agent, the Transfer Agent or the
Registrar shall have actual or other notice thereof.
ARTICLE
IX
LIMITATION
OF LIABILITY OF HOLDERS
OF
SECURITIES, TRUSTEES OR OTHERS
SECTION
9.1.
Liability
.
(a)
Except
as
expressly set forth in this Declaration, the Guarantee and the terms of the
Securities, the Sponsor shall not be:
(i)
personally
liable for the return of any portion of the capital contributions (or any return
thereon) of the Holders of the Securities which shall be made solely from assets
of the Trust; and
(ii)
required
to pay to the Trust or to any Holder of the Securities any deficit upon
dissolution of the Trust or otherwise.
(b)
The
Holder of the Common Securities shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust's assets.
(c)
Except
to
the extent provided in Section 9.1(b), and pursuant to § 3803(a) of the
Statutory Trust Act, the Holders of the Securities shall be entitled to the
same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State
of Delaware, except as otherwise specifically set forth herein.
SECTION
9.2.
Exculpation
.
(a)
No
Indemnified Person shall be liable, responsible or accountable in damages or
otherwise to the Trust or any Covered Person for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except
that
an Indemnified Person (other than an Administrator) shall be liable for any
such
loss, damage or claim incurred by reason of such Indemnified Person's negligence
or willful misconduct or bad faith with respect to such acts or omissions and
except that an Administrator shall be liable for any such loss, damage or claim
incurred by reason of such Administrator's gross negligence or willful
misconduct or bad faith with respect to such acts or omissions.
(b)
An
Indemnified Person shall be fully protected in relying in good faith upon the
records of the Trust and upon such information, opinions, reports or statements
presented to the Trust by any Person as to matters the Indemnified Person
reasonably believes are within such other Person's professional or expert
competence and, if selected by such Indemnified Person, has been selected by
such Indemnified Person with reasonable care by or on behalf of the Trust,
including information, opinions, reports or statements as to the value and
amount of the assets, liabilities, profits, losses or any other facts pertinent
to the existence and amount of assets from which Distributions to Holders of
Securities might properly be paid.
(c)
It
is
expressly understood and agreed by the parties hereto that insofar as any
document, agreement or certificate is executed on behalf of the Trust by any
Trustee (i) such document, agreement or certificate is executed and delivered
by
such Trustee, not in its individual capacity, but solely as Trustee under this
Declaration in the exercise of the powers and authority conferred and vested
in
it, (ii) each of the representations, undertakings and agreements made on the
part of the Trust is made and intended not as representations, warranties,
covenants, undertakings and agreements by any Trustee in its individual
capacity, but is made and intended for the purpose of binding only the Trust
and
(iii) under no circumstances shall any Trustee in its individual capacity be
personally liable for the payment of any indebtedness or expenses of the Trust
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under this Declaration
or
any other document, agreement or certificate. This Section 9.2(c) shall not
limit the liability of a Trustee to a Holder for breach of any representations
made or obligations undertaken by such Trustee specifically in its individual
capacity under this Declaration.
SECTION
9.3.
Fiduciary
Duty
.
(a)
To
the
extent that, at law or in equity, an Indemnified Person has duties (including
fiduciary duties) and liabilities relating thereto to the Trust or to any other
Covered Person, an Indemnified Person acting under this Declaration shall not
be
liable to the Trust or to any other Covered Person for its good faith reliance
on the provisions of this Declaration. The provisions of this Declaration,
to
the extent that they restrict the duties and liabilities of an Indemnified
Person otherwise existing at law or in equity (other than the duties imposed
on
the Institutional Trustee under the Trust Indenture Act), are agreed by the
parties hereto to replace such other duties and liabilities of the Indemnified
Person.
(b)
Whenever
in this Declaration an Indemnified Person is permitted or required to make
a
decision:
(i)
in
its
"discretion" or under a grant of similar authority, the Indemnified Person
shall
be entitled to consider such interests and factors as it desires, including
its
own interests, and shall have no duty or obligation to give any consideration
to
any interest of or factors affecting the Trust or any other Person;
or
(ii)
in
its
"good faith" or under another express standard, the Indemnified Person shall
act
under such express standard and shall not be subject to any other or different
standard imposed by this Declaration or by applicable law.
SECTION
9.4.
Indemnification
.
(a)
(i)
The
Sponsor shall indemnify, to the fullest extent permitted by law, any Indemnified
Person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Trust) by reason of the fact that such Person is or was an
Indemnified Person against expenses (including attorneys' fees and expenses),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such Person in connection with such action, suit or proceeding if such Person
acted in good faith and in a manner such Person reasonably believed to be in
or
not opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Indemnified
Person did not act in good faith and in a manner which such Person reasonably
believed to be in or not opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that such conduct was unlawful.
(ii)
The
Sponsor shall indemnify, to the fullest extent permitted by law, any Indemnified
Person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the Trust
to procure a judgment in its favor by reason of the fact that such Person is
or
was an Indemnified Person against expenses (including attorneys' fees and
expenses) actually and reasonably incurred by such Person in connection with
the
defense or settlement of such action or suit if such Person acted in good faith
and in a manner such Person reasonably believed to be in or not opposed to
the
best interests of the Trust and except that no such indemnification shall be
made in respect of any claim, issue or matter as to which such Indemnified
Person shall have been adjudged to be liable to the Trust, unless and only
to
the extent that the Court of Chancery of Delaware or the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such
Person is fairly and reasonably entitled to indemnity for such expenses which
such Court of Chancery or such other court shall deem proper.
(iii)
To
the
extent that an Indemnified Person shall be successful on the merits or otherwise
(including dismissal of an action without prejudice or the settlement of an
action without admission of liability) in defense of any action, suit or
proceeding referred to in paragraphs (i) and (ii) of this Section 9.4(a), or
in
defense of any claim, issue or matter therein, such Person shall be indemnified,
to the fullest extent permitted by law, against expenses (including attorneys'
fees and expenses) actually and reasonably incurred by such Person in connection
therewith.
(iv)
Any
indemnification of an Administrator under paragraphs (i) and (ii) of this
Section 9.4(a) (unless ordered by a court) shall be made by the Sponsor only
as
authorized in the specific case upon a determination that indemnification of
the
Indemnified Person is proper in the circumstances because such Person has met
the applicable standard of conduct set forth in paragraphs (i) and (ii). Such
determination shall be made (A) by the Administrators by a majority vote of
a
Quorum consisting of such Administrators who were not parties to such action,
suit or proceeding, (B) if such a Quorum is not obtainable, or, even if
obtainable, if a Quorum of disinterested Administrators so directs, by
independent legal counsel in a written opinion, or (C) by the Common Security
Holder of the Trust.
(v)
To
the
fullest extent permitted by law, expenses (including attorneys' fees and
expenses) incurred by an Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 9.4(a) shall be paid by the Sponsor
in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such Indemnified Person to repay such
amount if it shall ultimately be determined that such Person is not entitled
to
be indemnified by the Sponsor as authorized in this Section 9.4(a).
Notwithstanding the foregoing, no advance shall be made by the Sponsor if a
determination is reasonably and promptly made (1) in the case of a Company
Indemnified Person (A) by the Administrators by a majority vote of a Quorum
of
disinterested Administrators, (B) if such a Quorum is not obtainable, or, even
if obtainable, if a Quorum of disinterested Administrators so directs, by
independent legal counsel in a written opinion or (C) by the Common Security
Holder of the Trust, that, based upon the facts known to the Administrators,
counsel or the Common Security Holder at the time such determination is made,
such Indemnified Person acted in bad faith or in a manner that such Person
either believed to be opposed to or did not believe to be in the best interests
of the Trust, or, with respect to any criminal proceeding, that such Indemnified
Person believed or had reasonable cause to believe such conduct was unlawful,
or
(2) in the case of a Fiduciary Indemnified Person, by independent legal counsel
in a written opinion that, based upon the facts known to the counsel at the
time
such determination is made, such Indemnified Person acted in bad faith or in
a
manner that such Indemnified Person either believed to be opposed to or did
not
believe to be in the best interests of the Trust, or, with respect to any
criminal proceeding, that such Indemnified Person believed or had reasonable
cause to believe such conduct was unlawful. In no event shall any advance be
made (i) to a Company Indemnified Person in instances where the Administrators,
independent legal counsel or the Common Security Holder reasonably determine
that such Person deliberately breached such Person's duty to the Trust or its
Common or Capital Security Holders or (ii) to a Fiduciary Indemnified Person
in
instances where independent legal counsel promptly and reasonably determines
in
a written opinion that such Person deliberately breached such Person's duty
to
the Trust or its Common or Capital Security Holders.
(b)
The
Sponsor shall indemnify, to the fullest extent permitted by applicable law,
each
Indemnified Person from and against any and all loss, damage, liability, tax
(other than taxes based on the income of such Indemnified Person), penalty,
expense or claim of any kind or nature whatsoever incurred by such Indemnified
Person arising out of or in connection with or by reason of the creation,
administration or termination of the Trust, or any act or omission of such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Declaration, except that no
Indemnified Person shall be entitled to be indemnified in respect of any loss,
damage, liability, tax, penalty, expense or claim incurred by such Indemnified
Person by reason of negligence, willful misconduct or bad faith with respect
to
such acts or omissions.
(c)
The
indemnification and advancement of expenses provided by, or granted pursuant
to,
the other paragraphs of this Section 9.4 shall not be deemed exclusive of any
other rights to which those seeking indemnification and advancement of expenses
may be entitled under any agreement, vote of stockholders or disinterested
directors of the Sponsor or Capital Security Holders of the Trust or otherwise,
both as to action in such Person's official capacity and as to action in another
capacity while holding such office. All rights to indemnification under this
Section 9.4 shall be deemed to be provided by a contract between the Sponsor
and
each Indemnified Person who serves in such capacity at any time while this
Section 9.4 is in effect. Any repeal or modification of this Section 9.4 shall
not affect any rights or obligations then existing.
(d)
The
Sponsor or the Trust may purchase and maintain insurance on behalf of any Person
who is or was an Indemnified Person against any liability asserted against
such
Person and incurred by such Person in any such capacity, or arising out of
such
Person's status as such, whether or not the Sponsor would have the power to
indemnify such Person against such liability under the provisions of this
Section 9.4.
(e)
For
purposes of this Section 9.4, references to "the Trust" shall include, in
addition to the resulting or surviving entity, any constituent entity (including
any constituent of a constituent) absorbed in a consolidation or merger, so
that
any Person who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such constituent
entity as a director, trustee, officer, employee or agent of another entity,
shall stand in the same position under the provisions of this Section 9.4 with
respect to the resulting or surviving entity as such Person would have with
respect to such constituent entity if its separate existence had
continued.
(f)
The
indemnification and advancement of expenses provided by, or granted pursuant
to,
this Section 9.4 shall, unless otherwise provided when authorized or ratified,
continue as to a Person who has ceased to be an Indemnified Person and shall
inure to the benefit of the heirs, executors and administrators of such a
Person.
(g)
The
provisions of this Section 9.4 shall survive the termination of this Declaration
or the earlier resignation or removal of the Institutional Trustee. The
obligations of the Sponsor under this Section 9.4 to compensate and indemnify
the Trustees and to pay or reimburse the Trustees for expenses, disbursements
and advances shall constitute additional indebtedness hereunder. Such additional
indebtedness shall be secured by a lien prior to that of the Securities upon
all
property and funds held or collected by the Trustees as such, except funds
held
in trust for the benefit of the holders of particular Capital Securities,
provided
,
that
the Sponsor is the holder of the Common Securities.
(h)
This
Section 9.4 specifically supersedes and replaces Section 4 of the Original
Declaration.
SECTION
9.5.
Outside
Businesses
.
Any
Covered Person, the Sponsor, the Delaware Trustee and the Institutional Trustee
(subject to Section 4.3(c)) may engage in or possess an interest in other
business ventures of any nature or description, independently or with others,
similar or dissimilar to the business of the Trust, and the Trust and the
Holders of Securities shall have no rights by virtue of this Declaration in
and
to such independent ventures or the income or profits derived therefrom, and
the
pursuit of any such venture, even if competitive with the business of the Trust,
shall not be deemed wrongful or improper. None of any Covered Person, the
Sponsor, the Delaware Trustee or the Institutional Trustee shall be obligated
to
present any particular investment or other opportunity to the Trust even if
such
opportunity is of a character that, if presented to the Trust, could be taken
by
the Trust, and any Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Covered Person, the Delaware
Trustee and the Institutional Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate of the Sponsor,
or may act as depositary for, trustee or agent for, or act on any committee
or
body of holders of, securities or other obligations of the Sponsor or its
Affiliates.
SECTION
9.6.
Compensation;
Fee
.
(a)
Subject
to the provisions set forth in the Fee Agreement between the Institutional
Trustee, Cohen & Company and the Company of even date herewith, the Sponsor
agrees:
(i)
to
pay to
the Trustees from time to time such compensation for all services rendered
by
them hereunder as the parties shall agree in writing from time to time (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust); and
(ii)
except
as
otherwise expressly provided herein, to reimburse the Trustees upon request
for
all reasonable, documented expenses, disbursements and advances incurred or
made
by the Trustees in accordance with any provision of this Declaration (including
the reasonable compensation and the expenses and disbursements of their
respective agents and counsel), except any such expense, disbursement or advance
attributable to their negligence or willful misconduct.
(b)
The
provisions of this Section 9.6 shall survive the dissolution of the Trust and
the termination of this Declaration and the removal or resignation of any
Trustee.
ARTICLE
X
ACCOUNTING
SECTION
10.1.
Fiscal
Year
.
The
fiscal year (the "Fiscal Year") of the Trust shall be the calendar year, or
such
other year as is required by the Code.
SECTION
10.2.
Certain
Accounting Matters
.
(a)
At
all
times during the existence of the Trust, the Administrators shall keep, or
cause
to be kept at the principal office of the Trust in the United States, as defined
for purposes of Treasury Regulations § 301.7701-7, full books of account,
records and supporting documents, which shall reflect in reasonable detail
each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied.
(b)
The
Administrators shall either (i) cause each Form 10-K and Form 10-Q prepared
by
the Sponsor and filed with the Commission in accordance with the Exchange Act
to
be delivered directly to each Holder of Securities, within 90 days after the
filing of each Form 10-K and within 30 days after the filing of each Form 10-Q
or (ii) cause to be prepared at the principal office of the Trust in the United
States, as defined for purposes of Treasury Regulations § 301.7701-7, and
delivered directly to each of the Holders of Securities, within 90 days after
the end of each Fiscal Year of the Trust, annual financial statements of the
Trust, including a balance sheet of the Trust as of the end of such Fiscal
Year,
and the related statements of income or loss.
(c)
The
Administrators shall cause to be duly prepared and delivered to each of the
Holders of Securities Form 1099 or such other annual United States federal
income tax information statement required by the Code, containing such
information with regard to the Securities held by each Holder as is required
by
the Code and the Treasury Regulations. Notwithstanding any right under the
Code
to deliver any such statement at a later date, the Administrators shall endeavor
to deliver all such statements within 30 days after the end of each Fiscal
Year
of the Trust.
(d)
The
Administrators shall cause to be duly prepared in the United States, as defined
for purposes of Treasury Regulations § 301.7701-7, and filed an annual United
States federal income tax return on a Form 1041 or such other form required
by
United States federal income tax law, and any other annual income tax returns
required to be filed by the Administrators on behalf of the Trust with any
state
or local taxing authority.
(e)
The
Administrators will cause the Sponsor's regulatory reports to be delivered
to
the Holder promptly following their filing with the Federal
Reserve.
SECTION
10.3.
Banking
.
The
Trust shall maintain one or more bank accounts in the United States, as defined
for purposes of Treasury Regulations § 301.7701-7, in the name and for the sole
benefit of the Trust;
provided
,
however
,
that
all payments of funds in respect of the Debentures held by the Institutional
Trustee shall be made directly to the Property Account and no other funds of
the
Trust shall be deposited in the Property Account. The sole signatories for
such
accounts (including the Property Account) shall be designated by the
Institutional Trustee.
SECTION
10.4.
Withholding
.
The
Institutional Trustee or any Paying Agent and the Administrators shall comply
with all withholding requirements under United States federal, state and local
law. As a condition to the payment of any principal of or interest on any Debt
Security without the imposition of withholding tax, the Institutional Trustee
or
any Paying Agent shall require the previous delivery of properly completed
and
signed applicable U.S. federal income tax certifications (generally, an Internal
Revenue Service Form W-9 (or applicable successor form) in the case of a person
that is a "United States person" within the meaning of Section 7701(a)(30)
of
the Code or an Internal Revenue Service Form W-8 (or applicable successor form)
in the case of a person that is not a "United States person" within the meaning
of Section 7701(a)(30) of the Code) and any other certification acceptable
to it
to enable the Institutional Trustee or any Paying Agent and the Trustee to
determine their respective duties and liabilities with respect to any taxes
or
other charges that they may be required to pay, deduct or withhold in respect
of
such Debt Security or the holder of such Debt Security under any present or
future law or regulation of the United States or any political subdivision
thereof or taxing authority therein or to comply with any reporting or other
requirements under any such law or regulation. The Administrators shall file
required forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit amounts withheld
with respect to the Holder to applicable jurisdictions. To the extent that
the
Institutional Trustee or any Paying Agent is required to withhold and pay over
any amounts to any authority with respect to distributions or allocations to
any
Holder, the amount withheld shall be deemed to be a Distribution to the Holder
in the amount of the withholding. In the event of any claimed overwithholding,
Holders shall be limited to an action against the applicable jurisdiction.
If
the amount required to be withheld was not withheld from actual Distributions
made, the Institutional Trustee or any Paying Agent may reduce subsequent
Distributions by the amount of such withholding.
ARTICLE
XI
AMENDMENTS
AND MEETINGS
SECTION
11.1.
Amendments
.
(a)
Except
as
otherwise provided in this Declaration or by any applicable terms of the
Securities, this Declaration may only be amended by a written instrument
approved and executed by:
(i)
the
Institutional Trustee,
(ii)
if
the
amendment affects the rights, powers, duties, obligations or immunities of
the
Delaware Trustee, the Delaware Trustee,
(iii)
if
the
amendment affects the rights, powers, duties, obligations or immunities of
the
Administrators, the Administrators, and
(iv)
the
Holders of a Majority in liquidation amount of the Common
Securities.
(b)
Notwithstanding
any other provision of this Article XI, no amendment shall be made, and any
such
purported amendment shall be void and ineffective:
(i)
unless
the Institutional Trustee shall have first received
(A)
an
Officers' Certificate from each of the Trust and the Sponsor that such amendment
is permitted by, and conforms to, the terms of this Declaration (including
the
terms of the Securities); and
(B)
an
opinion of counsel (who may be counsel to the Sponsor or the Trust) that such
amendment is permitted by, and conforms to, the terms of this Declaration
(including the terms of the Securities) and that all conditions precedent to
the
execution and delivery of such amendment have been satisfied; or
(ii)
if
the
result of such amendment would be to
(A)
cause
the
Trust to cease to be classified for purposes of United States federal income
taxation as a grantor trust;
(B)
reduce
or
otherwise adversely affect the powers of the Institutional Trustee in
contravention of the Trust Indenture Act;
(C)
cause
the
Trust to be deemed to be an Investment Company required to be registered under
the Investment Company Act; or
(D)
cause
the
Debenture Issuer to be unable to treat an amount equal to the Liquidation Amount
of the Capital Securities as "Tier 1 Capital" for purposes of the capital
adequacy guidelines of (x) the Federal Reserve (or, if the Debenture Issuer
is not a bank holding company, such guidelines or policies applied to the
Debenture Issuer as if the Debenture Issuer were subject to such guidelines
of
policies) or of (y) any other regulatory authority having jurisdiction over
the Debenture Issuer.
(c)
Except
as
provided in Section 11.1(d), (e) or (g), no amendment shall be made, and any
such purported amendment shall be void and ineffective, unless the Holders
of a
Majority in liquidation amount of the Capital Securities shall have consented
to
such amendment.
(d)
In
addition to and notwithstanding any other provision in this Declaration, without
the consent of each affected Holder, this Declaration may not be amended to
(i)
change the amount or timing of any Distribution on the Securities or any
redemption or liquidation provisions applicable to the Securities or otherwise
adversely affect the amount of any Distribution required to be made in respect
of the Securities as of a specified date or (ii) restrict the right of a Holder
to institute suit for the enforcement of any such payment on or after such
date.
(e)
Section
s
9.1(b)
and 9.1(c) and this Section 11.1 shall not be amended without the consent of
all
of the Holders of the Securities.
(f)
The
rights of the Holders of the Capital Securities and Common Securities, as
applicable, under Article IV to increase or decrease the number of, and appoint
and remove, Trustees shall not be amended without the consent of the Holders
of
a Majority in liquidation amount of the Capital Securities or Common Securities,
as applicable.
(g)
Subject
to Section 11.1(a), this Declaration may be amended by the Institutional Trustee
and the Holder of a Majority in liquidation amount of the Common Securities
without the consent of the Holders of the Capital Securities to:
(i)
cure
any
ambiguity;
(ii)
correct
or supplement any provision in this Declaration that may be defective or
inconsistent with any other provision of this Declaration;
(iii)
add
to
the covenants, restrictions or obligations of the Sponsor; or
(iv)
modify,
eliminate or add to any provision of this Declaration to such extent as may
be
necessary or desirable, including, without limitation, to ensure that the Trust
will be classified for United States federal income tax purposes at all times
as
a grantor trust and will not be required to register as an Investment Company
under the Investment Company Act (including without limitation to conform to
any
change in Rule 3a-5, Rule 3a-7 or any other applicable rule under the Investment
Company Act or written change in interpretation or application thereof by any
legislative body, court, government agency or regulatory authority) which
amendment does not have a material adverse effect on the right, preferences
or
privileges of the Holders of Securities;
provided
,
however
,
that no
such modification, elimination or addition referred to in clauses (i), (ii),
(iii) or (iv) shall adversely affect the powers, preferences or rights of
Holders of Capital Securities.
SECTION
11.2.
Meetings
of the Holders of the Securities; Action by Written Consent
.
(a)
Meetings
of the Holders of any class of Securities may be called at any time by the
Administrators (or as provided in the terms of the Securities) to consider
and
act on any matter on which Holders of such class of Securities are entitled
to
act under the terms of this Declaration, the terms of the Securities or the
rules of any stock exchange on which the Capital Securities are listed or
admitted for trading, if any. The Administrators shall call a meeting of the
Holders of such class if directed to do so by the Holders of not less than
10%
in liquidation amount of such class of Securities. Such direction shall be
given
by delivering to the Administrators one or more notices in a writing stating
that the signing Holders of the Securities wish to call a meeting and indicating
the general or specific purpose for which the meeting is to be called. Any
Holders of the Securities calling a meeting shall specify in writing the
Certificates held by the Holders of the Securities exercising the right to
call
a meeting and only those Securities represented by such Certificates shall
be
counted for purposes of determining whether the required percentage set forth
in
the second sentence of this paragraph has been met.
(b)
Except
to
the extent otherwise provided in the terms of the Securities, the following
provisions shall apply to meetings of Holders of the Securities:
(i)
notice
of
any such meeting shall be given to all the Holders of the Securities having
a
right to vote thereat at least 7 days and not more than 60 days before the
date
of such meeting. Whenever a vote, consent or approval of the Holders of the
Securities is permitted or required under this Declaration or the rules of
any
stock exchange on which the Capital Securities are listed or admitted for
trading, if any, such vote, consent or approval may be given at a meeting of
the
Holders of the Securities. Any action that may be taken at a meeting of the
Holders of the Securities may be taken without a meeting if a consent in writing
setting forth the action so taken is signed by the Holders of the Securities
owning not less than the minimum amount of Securities that would be necessary
to
authorize or take such action at a meeting at which all Holders of the
Securities having a right to vote thereon were present and voting. Prompt notice
of the taking of action without a meeting shall be given to the Holders of
the
Securities entitled to vote who have not consented in writing. The
Administrators may specify that any written ballot submitted to the Holders
of
the Securities for the purpose of taking any action without a meeting shall
be
returned to the Trust within the time specified by the
Administrators;
(ii)
each
Holder of a Security may authorize any Person to act for it by proxy on all
matters in which a Holder of Securities is entitled to participate, including
waiving notice of any meeting, or voting or participating at a meeting. No
proxy
shall be valid after the expiration of 11 months from the date thereof unless
otherwise provided in the proxy. Every proxy shall be revocable at the pleasure
of the Holder of the Securities executing it. Except as otherwise provided
herein, all matters relating to the giving, voting or validity of proxies shall
be governed by the General Corporation Law of the State of Delaware relating
to
proxies, and judicial interpretations thereunder, as if the Trust were a
Delaware corporation and the Holders of the Securities were stockholders of
a
Delaware corporation; each meeting of the Holders of the Securities shall be
conducted by the Administrators or by such other Person that the Administrators
may designate; and
(iii)
unless
the Statutory Trust Act, this Declaration, the terms of the Securities, the
Trust Indenture Act or the listing rules of any stock exchange on which the
Capital Securities are then listed for trading, if any, otherwise provides,
the
Administrators, in their sole discretion, shall establish all other provisions
relating to meetings of Holders of Securities, including notice of the time,
place or purpose of any meeting at which any matter is to be voted on by any
Holders of the Securities, waiver of any such notice, action by consent without
a meeting, the establishment of a record date, quorum requirements, voting
in
person or by proxy or any other matter with respect to the exercise of any
such
right to vote;
provided
,
however
,
that
each meeting shall be conducted in the United States (as that term is defined
in
Treasury Regulations § 301.7701-7).
ARTICLE
XII
REPRESENTATIONS
OF INSTITUTIONAL TRUSTEE
AND
DELAWARE TRUSTEE
SECTION
12.1.
Representations
and Warranties of Institutional Trustee
.
The
Trustee that acts as initial Institutional Trustee represents and warrants
to
the Trust and to the Sponsor at the date of this Declaration, and each Successor
Institutional Trustee represents and warrants to the Trust and the Sponsor
at
the time of the Successor Institutional Trustee's acceptance of its appointment
as Institutional Trustee, that:
(a)
the
Institutional Trustee is a banking corporation or national association with
trust powers, duly organized, validly existing and in good standing under the
laws of the State of New York or the United States of America, respectively,
with trust power and authority to execute and deliver, and to carry out and
perform its obligations under the terms of, this Declaration;
(b)
the
Institutional Trustee has a combined capital and surplus of at least fifty
million U.S. dollars ($50,000,000);
(c)
the
Institutional Trustee is not an affiliate of the Sponsor, nor does the
Institutional Trustee offer or provide credit or credit enhancement to the
Trust;
(d)
the
execution, delivery and performance by the Institutional Trustee of this
Declaration has been duly authorized by all necessary action on the part of
the
Institutional Trustee. This Declaration has been duly executed and delivered
by
the Institutional Trustee, and under Delaware law (excluding any securities
laws) constitutes a legal, valid and binding obligation of the Institutional
Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency and other similar
laws affecting creditors' rights generally and to general principles of equity
and the discretion of the court (regardless of whether considered in a
proceeding in equity or at law);
(e)
the
execution, delivery and performance of this Declaration by the Institutional
Trustee does not conflict with or constitute a breach of the charter or by-laws
of the Institutional Trustee; and
(f)
no
consent, approval or authorization of, or registration with or notice to, any
state or federal banking authority governing the trust powers of the
Institutional Trustee is required for the execution, delivery or performance
by
the Institutional Trustee of this Declaration.
SECTION
12.2.
Representations
and Warranties of Delaware Trustee
.
The
Trustee that acts as initial Delaware Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Declaration, and each Successor
Delaware Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a)
if
it is
not a natural person, the Delaware Trustee is duly organized, validly existing
and has its principal place of business in the State of Delaware;
(b)
if
it is
not a natural person, the execution, delivery and performance by the Delaware
Trustee of this Declaration has been duly authorized by all necessary corporate
action on the part of the Delaware Trustee. This Declaration has been duly
executed and delivered by the Delaware Trustee, and under Delaware law
(excluding any securities laws) constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors' rights generally and
to
general principles of equity and the discretion of the court (regardless of
whether considered in a proceeding in equity or at law);
(c)
if
it is
not a natural person, the execution, delivery and performance of this
Declaration by the Delaware Trustee does not conflict with or constitute a
breach of the articles of association or by-laws of the Delaware
Trustee;
(d)
it
has
trust power and authority to execute and deliver, and to carry out and perform
its obligations under the terms of, this Declaration;
(e)
no
consent, approval or authorization of, or registration with or notice to, any
state or federal banking authority governing the trust powers of the Delaware
Trustee is required for the execution, delivery or performance by the Delaware
Trustee of this Declaration; and
(f)
if
the
Delaware Trustee is a natural person, he or she is a resident of the State
of
Delaware.
ARTICLE
XIII
MISCELLANEOUS
SECTION
13.1.
Notices
.
All
notices provided for in this Declaration shall be in writing, duly signed by
the
party giving such notice, and shall be delivered, telecopied (which telecopy
shall be followed by notice delivered or mailed by first class mail) or mailed
by first class mail, as follows:
(a)
if
given
to the Trust, in care of the Administrators at the Trust's mailing address
set
forth below (or such other address as the Trust may give notice of to the
Holders of the Securities):
Wilshire
Statutory Trust IV
c/o
Wilshire Bancorp, Inc.
3200
Wilshire Boulevard, Suite 1400
Los
Angeles, California 90010
Attention:
Elaine S. Jeon
Telecopy:
(213) 427-6584
Telephone:
(213) 427-6581
(b)
if
given
to the Delaware Trustee, at the mailing address set forth below (or such other
address as the Delaware Trustee may give notice of to the Holders of the
Securities):
LaSalle
National Trust Delaware
1201
N.
Orange Street, Suite 1000
Wilmington,
Delaware 19801
Attn:
Robert W. Eaddy
Telecopy:
302-427-1414
Telephone:
302-427-1401
(c)
if
given
to the Institutional Trustee, at the Institutional Trustee's mailing address
set
forth below (or such other address as the Institutional Trustee may give notice
of to the Holders of the Securities):
LaSalle
Bank National Association
135
S.
LaSalle Street, Suite 1511
Chicago,
Illinois 60603
Attention:
CDO Trust Services Group
Wilshire
Statutory Trust IV
Telecopy:
312-904-0524
Telephone:
312-904-0283
(d)
if
given
to the Holder of the Common Securities, at the mailing address of the Sponsor
set forth below (or such other address as the Holder of the Common Securities
may give notice of to the Trust):
Wilshire
Bancorp, Inc.
3200
Wilshire Boulevard, Suite 1400
Los
Angeles, California 90010
Attention:
Elaine S. Jeon
Telecopy:
(213) 427-6584
Telephone:
(213) 427-6581
(e)
if
given
to any other Holder, at the address set forth on the books and records of the
Trust.
All
such
notices shall be deemed to have been given when received in person, telecopied
with receipt confirmed, or mailed by first class mail, postage prepaid, except
that if a notice or other document is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such notice or other
document shall be deemed to have been delivered on the date of such refusal
or
inability to deliver.
SECTION
13.2.
Governing
Law
.
This
Declaration and the rights and obligations of the parties hereunder shall be
governed by and interpreted in accordance with the law of the State of Delaware
and all rights, obligations and remedies shall be governed by such laws without
regard to the principles of conflict of laws of the State of Delaware or any
other jurisdiction that would call for the application of the law of any
jurisdiction other than the State of Delaware.
SECTION
13.3.
Submission
to Jurisdiction
.
(a)
Each
of
the parties hereto agrees that any suit, action or proceeding arising out of
or
based upon this Declaration, or the transactions contemplated hereby, may be
instituted in any of the courts of the State of New York located in the Borough
of Manhattan, City and State of New York, and further agrees to submit to the
jurisdiction of Delaware, and to any actions that are instituted in state or
Federal court in Wilmington, Delaware and any competent court in the place
of
its corporate domicile in respect of actions brought against it as a defendant.
In addition, each such party irrevocably waives, to the fullest extent permitted
by law, any objection which it may now or hereafter have to the laying of the
venue of such suit, action or proceeding brought in any such court and
irrevocably waives any claim that any such suit, action or proceeding brought
in
any such court has been brought in an inconvenient forum and irrevocably waives
any right to which it may be entitled on account of its place of corporate
domicile. Each such party hereby irrevocably waives any and all right to trial
by jury in any legal proceeding arising out of or relating to this Declaration
or the transactions contemplated hereby. Each such party agrees that final
judgment in any proceedings brought in such a court shall be conclusive and
binding upon it and may be enforced in any court to the jurisdiction of which
it
is subject by a suit upon such judgment.
(b)
Each
of
the Sponsor, the Trustees, the Administrators and the Holder of the Common
Securities irrevocably consents to the service of process on it in any such
suit, action or proceeding by the mailing thereof by registered or certified
mail, postage prepaid, to it at its address given in or pursuant to Section
13.1
hereof.
(c)
To
the
extent permitted by law, nothing herein contained shall preclude any party
from
effecting service of process in any lawful manner or from bringing any suit,
action or proceeding in respect of this Declaration in any other state, country
or place.
SECTION
13.4.
Intention
of the Parties
.
It is
the intention of the parties hereto that the Trust be classified for United
States federal income tax purposes as a grantor trust. The provisions of this
Declaration shall be interpreted to further this intention of the
parties.
SECTION
13.5.
Headings
.
Headings contained in this Declaration are inserted for convenience of reference
only and do not affect the interpretation of this Declaration or any provision
hereof.
SECTION
13.6.
Successors
and Assigns
.
Whenever in this Declaration any of the parties hereto is named or referred
to,
the successors and assigns of such party shall be deemed to be included, and
all
covenants and agreements in this Declaration by the Sponsor and the Trustees
shall bind and inure to the benefit of their respective successors and assigns,
whether or not so expressed.
SECTION
13.7.
Partial
Enforceability
.
If any
provision of this Declaration, or the application of such provision to any
Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected
thereby.
SECTION
13.8.
Counterparts
.
This
Declaration may contain more than one counterpart of the signature page and
this
Declaration may be executed by the affixing of the signature of each of the
Trustees and Administrators to any of such counterpart signature pages. All
of
such counterpart signature pages shall be read as though one, and they shall
have the same force and effect as though all of the signers had signed a single
signature page.
IN
WITNESS WHEREOF, the undersigned have caused this Declaration to be duly
executed as of the day and year first above written.
LASALLE
NATIONAL TRUST DELAWARE,
|
as
Delaware Trustee
|
|
|
|
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
LASALLE
BANK NATIONAL
ASSOCIATION, as Institutional Trustee
|
|
|
|
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
WILSHIRE
BANCORP, INC.,
|
as
Sponsor
|
|
|
|
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
|
|
|
|
|
|
Name:
Brian E. Cho
|
Administrator
|
|
|
|
|
|
|
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Name:
Soo Bong Min
|
Administrator
|
ANNEX
I
TERMS
OF
CAPITAL
SECURITIES AND
COMMON
SECURITIES
Pursuant
to Section 6.1 of the Amended and Restated Declaration of Trust, dated as of
July 10, 2007 (as amended from time to time, the "Declaration"), the
designation, rights, privileges, restrictions, preferences and other terms
and
provisions of the Capital Securities and the Common Securities are set out
below
(each capitalized term used but not defined herein has the meaning set forth
in
the Declaration):
1.
Designation
and Number
.
(a)
Capital
Securities. 25,000 Capital Securities of Wilshire Statutory Trust IV (the
"Trust"), with an aggregate stated liquidation amount with respect to the assets
of the Trust of Twenty Five Million Dollars ($25,000,000) and a stated
liquidation amount with respect to the assets of the Trust of $1,000 per Capital
Security, are hereby designated for the purposes of identification only as
the
"TP Securities" (the "Capital Securities"). The Capital Security Certificates
evidencing the Capital Securities shall be substantially in the form of Exhibit
A-1 to the Declaration, with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or practice or to conform
to the rules of any stock exchange on which the Capital Securities are listed,
if any.
(b)
Common
Securities. 774 Common Securities of the Trust (the "Common Securities") will
be
evidenced by Common Security Certificates substantially in the form of Exhibit
A-2 to the Declaration, with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or practice. The Common
Securities will have an aggregate stated liquidation amount with respect to
the
assets of the Trust of Seventy Hundred Seventy Four Thousand Dollars ($774,000)
and a stated liquidation amount with respect to the assets of the Trust of
$1,000 per Common Security.
2.
Distributions
.
(a)
Distributions
payable on each Security will be payable at a variable per annum rate of
interest, reset quarterly, equal to LIBOR, as determined on the LIBOR
Determination Date for such Distribution Payment Period, plus 1.38% (the "Coupon
Rate") of the stated liquidation amount of $1,000 per Security (provided,
however, that the Coupon Rate for any Distribution Payment Period may not exceed
the highest rate permitted by New York law, as the same may be modified by
United States law of general applicability), such Coupon Rate being the rate
of
interest payable on the Debentures to be held by the Institutional Trustee.
Except as set forth below in respect of an Extension Period, Distributions
in
arrears for more than one quarterly period will bear interest thereon compounded
quarterly at the applicable Coupon Rate for each such quarterly period (to
the
extent permitted by applicable law). The term "Distributions" as used herein
includes cash distributions, any such compounded distributions and any
Additional Interest payable on the Debentures unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect
of
the Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds legally available in the Property Account
therefor. The amount of Distributions payable for any Distribution Payment
Period will be computed for any full quarterly Distribution Payment Period
on
the basis of a 360-day year and the actual number of days elapsed in the
relevant Distribution period; provided, however, that upon the occurrence of
a
Special Event redemption pursuant to paragraph 4(a) below the amounts payable
pursuant to this Declaration shall be calculated as set forth in the definition
of Special Redemption Price.
(b)
LIBOR
shall be determined by the Calculation Agent in accordance with the following
provisions:
(1)
On
the
second LIBOR Business Day (
provided
,
that on
such day commercial banks are open for business (including dealings in foreign
currency deposits) in London (a "LIBOR Banking Day"), and otherwise the next
preceding LIBOR Business Day that is also a LIBOR Banking Day) prior to March
15, June 15, September 15 and December 15 (or, with respect to the first
Distribution Payment Period, on July 6, 2007), (each such day, a "LIBOR
Determination Date") for such Distribution Payment Period), the Calculation
Agent shall obtain the rate for three-month U.S. Dollar deposits in Europe,
which appears on Reuters Screen LIBOR 01 Page (as defined in the International
Swaps and Derivatives Association, Inc. 2000 Interest Rate and Currency Exchange
Definitions) or such other page as may replace such page, as of 11:00 a.m.
(London time) on such LIBOR Determination Date, as reported by Bloomberg
Financial Markets Commodities News or any successor service (“Reuters Screen”),
and the rate so obtained shall be LIBOR for such Distribution Payment Period.
"LIBOR Business Day" means any day that is not a Saturday, Sunday or other
day
on which commercial banking institutions in The City of New York or Chicago,
Illinois are authorized or obligated by law or executive order to be closed.
If
such rate is superseded on Reuters Screen by a corrected rate before 12:00
noon
(London time) on the same LIBOR Determination Date, the corrected rate as so
substituted will be the applicable LIBOR for that Distribution Payment
Period.
(2)
If,
on
any LIBOR Determination Date, such rate does not appear on Reuters Screen,
the
Calculation Agent shall determine the arithmetic mean of the offered quotations
of the Reference Banks (as defined below) to leading banks in the London
Interbank market for three-month U.S. Dollar deposits in Europe (in an amount
determined by the Calculation Agent) by reference to requests for quotations
as
of approximately 11:00 a.m. (London time) on the LIBOR Determination Date made
by the Calculation Agent to the Reference Banks. If, on any LIBOR Determination
Date, at least two of the Reference Banks provide such quotations, LIBOR shall
equal the arithmetic mean of such quotations. If, on any LIBOR Determination
Date, only one or none of the Reference Banks provide such a quotation, LIBOR
shall be deemed to be the arithmetic mean of the offered quotations that at
least two leading banks in the City of New York (as selected by the Calculation
Agent) are quoting on the relevant LIBOR Determination Date for three-month
U.S.
Dollar deposits in Europe at approximately 11:00 a.m. (London time) (in an
amount determined by the Calculation Agent). As used herein, "Reference Banks"
means four major banks in the London Interbank market selected by the
Calculation Agent.
(3)
If
the
Calculation Agent is required but is unable to determine a rate in accordance
with at least one of the procedures provided above, LIBOR for the applicable
Distribution Payment Period shall be LIBOR in effect for the immediately
preceding Distribution Payment Period.
(c)
All
percentages resulting from any calculations on the Securities will be rounded,
if necessary, to the nearest one hundred-thousandth of a percentage point,
with
five one-millionths of a percentage point rounded upward (e.g., 9.876545% (or
.09876545) being rounded to 9.87655% (or .0987655)), and all dollar amounts
used
in or resulting from such calculation will be rounded to the nearest cent (with
one-half cent being rounded upward).
(d)
As
soon
as practicable following each LIBOR Determination Date, but in no event later
than the 5th day following such LIBOR Determination Date, the Calculation Agent
shall notify, in writing, the Sponsor and the Paying Agent of the applicable
Coupon Rate in effect for the related Distribution Payment Period. The
Calculation Agent shall, upon the request of the Holder of any Securities,
provide the Coupon Rate then in effect. All calculations made by the Calculation
Agent in the absence of manifest error shall be conclusive for all purposes
and
binding on the Sponsor and the Holders of the Securities. Any error in a
calculation of the Coupon Rate by the Calculation Agent may be corrected at
any
time by the delivery of notice of such corrected Coupon Rate as provided above.
The Paying Agent shall be entitled to rely on information received from the
Calculation Agent or the Sponsor as to the Coupon Rate. The Sponsor shall,
from
time to time, provide any necessary information to the Paying Agent relating
to
any original issue discount and interest on the Securities that is included
in
any payment and reportable for taxable income calculation purposes. Failure
to
notify the Sponsor, the Institutional Trustee or the Paying Agent of the
applicable Coupon Rate shall not affect the obligation of the Sponsor to make
payment on the Debentures at such Coupon Rate.
(e)
Distributions
on the Securities will be cumulative, will accrue from the date of original
issuance, and will be payable, subject to extension of Distribution payment
periods as described herein, quarterly in arrears on March 15, June 15,
September 15 and December 15 of each year, commencing September 15, 2007 (each,
a "Distribution Payment Date"). Subject to prior submission of Notice (as
defined in the Indenture), and so long as no Event of Default pursuant to
paragraphs (c), (e), (f) or (g) of Section 5.01 of the Indenture has
occurred and is continuing, the Debenture Issuer has the right under the
Indenture to defer payments of interest on the Debentures by extending the
interest distribution period for up to 20 consecutive quarterly periods (each,
an "Extension Period") at any time and from time to time on the Debentures,
subject to the conditions described below, during which Extension Period no
interest shall be due and payable (except any Additional Interest that may
be
due and payable). During any Extension Period, interest will continue to accrue
on the Debentures, and interest on such accrued interest (such accrued interest
and interest thereon referred to herein as "Deferred Interest") will accrue
at
an annual rate equal to the Coupon Rate in effect for each such Extension
Period, compounded quarterly from the date such Deferred Interest would have
been payable were it not for the Extension Period, to the extent permitted
by
law. No Extension Period may end on a date other than a Distribution Payment
Date. At the end of any such Extension Period, the Debenture Issuer shall pay
all Deferred Interest then accrued and unpaid on the Debentures;
provided
,
however
,
that no
Extension Period may extend beyond the Maturity Date, Redemption Date (to the
extent redeemed) or Special Redemption Date; and
provided
,
further
,
that,
during any such Extension Period, the Debenture Issuer may not (i) declare
or
pay any dividends or distributions on, or redeem, purchase, acquire, or make
a
liquidation payment with respect to, any of the Debenture Issuer's capital
stock
or (ii) make any payment of principal or premium or interest on or repay,
repurchase or redeem any debt securities of the Debenture Issuer that rank
pari
passu
in all
respects with or junior in interest to the Debentures or (iii) make any payment
under any guarantees of the Debenture Issuer that rank in all respects
pari
passu
with or
junior in interest to the Guarantee (other than (a) repurchases, redemptions
or
other acquisitions of shares of capital stock of the Debenture Issuer (A) in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of one or more employees, officers,
directors or consultants, (B) in connection with a dividend reinvestment or
stockholder stock purchase plan or (C) in connection with the issuance of
capital stock of the Debenture Issuer (or securities convertible into or
exercisable for such capital stock), as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a
result of any exchange, reclassification, combination or conversion of any
class
or series of the Debenture Issuer's capital stock (or any capital stock of
a
subsidiary of the Debenture Issuer) for any class or series of the Debenture
Issuer's capital stock or of any class or series of the Debenture Issuer's
indebtedness for any class or series of the Debenture Issuer's capital stock,
(c) the purchase of fractional interests in shares of the Debenture Issuer's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (d) any declaration of
a
dividend in connection with any stockholder's rights plan, or the issuance
of
rights, stock or other property under any stockholder's rights plan, or the
redemption or repurchase of rights pursuant thereto, or (e) any dividend in
the
form of stock, warrants, options or other rights where the dividend stock or
the
stock issuable upon exercise of such warrants, options or other rights is the
same stock as that on which the dividend is being paid or ranks
pari
passu
with or
junior to such stock. Prior to the termination of any Extension Period, the
Debenture Issuer may further extend such period;
provided
,
that
such period together with all such previous and further consecutive extensions
thereof shall not exceed 20 consecutive quarterly periods, or extend beyond
the
Maturity Date, Redemption Date (to the extent redeemed) or Special Redemption
Date. Upon the termination of any Extension Period and upon the payment of
all
Deferred Interest, the Debenture Issuer may commence a new Extension Period,
subject to the foregoing requirements. No interest or Deferred Interest shall
be
due and payable during an Extension Period, except at the end thereof, but
Deferred Interest shall accrue upon each installment of interest that would
otherwise have been due and payable during such Extension Period until such
installment is paid. If Distributions are deferred, the Distributions due shall
be paid on the date that the related Extension Period terminates to Holders
of
the Securities as they appear on the books and records of the Trust on the
record date immediately preceding such date. Distributions on the Securities
must be paid on the dates payable (after giving effect to any Extension Period)
to the extent that the Trust has funds legally available for the payment of
such
distributions in the Property Account of the Trust. The Trust's funds available
for Distribution to the Holders of the Securities will be limited to payments
received from the Debenture Issuer. The payment of Distributions out of moneys
held by the Trust is guaranteed by the Guarantor pursuant to the
Guarantee.
(f)
Distributions
on the Securities will be payable to the Holders thereof as they appear on
the
books and records of the Registrar on the relevant record dates. The relevant
record dates shall be 15 days before the relevant Distribution Payment Date.
Distributions payable on any Securities that are not punctually paid on any
Distribution Payment Date, as a result of the Debenture Issuer having failed
to
make a payment under the Debentures, as the case may be, when due (taking into
account any Extension Period), will cease to be payable to the Person in whose
name such Securities are registered on the relevant record date, and such
defaulted Distribution will instead be payable to the Person in whose name
such
Securities are registered on the special record date or other specified date
determined in accordance with the Indenture. Notwithstanding anything to the
contrary contained herein, if any Distribution Payment Date, other than on
the
Maturity Date, any Redemption Date or the Special Redemption Date, falls on
a
day that is not a Business Day, then any Distributions payable will be paid
on,
and such Distribution Payment Date will be moved to, the next succeeding
Business Day, and additional Distributions will accrue for each day that such
payment is delayed as a result thereof. If the Maturity Date, Redemption Date
or
Special Redemption Date falls on a day that is not a Business Day, then the
principal, premium, if any, and/or interest payable on such date will be paid
on
the next succeeding Business Day, and no additional interest will accrue (except
that, if such Business Day falls in the next calendar year, such payment will
be
made on the immediately preceding Business Day).
(g)
In
the
event that there is any money or other property held by or for the Trust that
is
not accounted for hereunder, such property shall be distributed pro rata (as
defined herein) among the Holders of the Securities.
3.
Liquidation
Distribution Upon Dissolution
.
In the
event of the voluntary or involuntary liquidation, dissolution, winding-up
or
termination of the Trust (each, a "Liquidation") other than in connection with
a
redemption of the Debentures, the Holders of the Securities will be entitled
to
receive out of the assets of the Trust available for distribution to Holders
of
the Securities, after satisfaction of liabilities to creditors of the Trust
(to
the extent not satisfied by the Debenture Issuer), distributions equal to the
aggregate of the stated liquidation amount of $1,000 per Security plus accrued
and unpaid Distributions thereon to the date of payment (such amount being
the
"Liquidation Distribution"), unless in connection with such Liquidation, the
Debentures in an aggregate stated principal amount equal to the aggregate stated
liquidation amount of such Securities, with an interest rate equal to the Coupon
Rate of, and bearing accrued and unpaid interest in an amount equal to the
accrued and unpaid Distributions on, and having the same record date as, such
Securities, after paying or making reasonable provision to pay all claims and
obligations of the Trust in accordance with Section 3808(e) of the Statutory
Trust Act, shall be distributed on a Pro Rata basis to the Holders of the
Securities in exchange for such Securities.
The
Sponsor, as the Holder of all of the Common Securities, has the right at any
time to, upon receipt of an opinion of nationally recognized tax counsel that
Holders will not recognize any gain or loss for United States federal income
tax
purposes as a result of the distribution of the Debentures, dissolve the Trust
(including without limitation upon the occurrence of a Tax Event, an Investment
Company Event or a Capital Treatment Event), subject to the receipt by the
Debenture Issuer of prior approval from any regulatory authority having
jurisdiction over the Sponsor that is primarily responsible for regulating
the
activities of the Sponsor if such approval is then required under applicable
capital guidelines or policies of such regulatory authority, and, after
satisfaction of liabilities to creditors of the Trust, cause the Debentures
to
be distributed to the Holders of the Securities on a Pro Rata basis in
accordance with the aggregate stated liquidation amount thereof.
The
Trust
shall dissolve on the first to occur of (i) September 15, 2042, the expiration
of the term of the Trust, (ii) a Bankruptcy Event with respect to the Sponsor,
the Trust or the Debenture Issuer, (iii) (other than in connection with a
merger, consolidation or similar transaction not prohibited by the Indenture,
this Declaration or the Guarantee, as the case may be) the filing of a
certificate of dissolution or its equivalent with respect to the Sponsor or
upon
the revocation of the charter of the Sponsor and the expiration of 90 days
after
the date of revocation without a reinstatement thereof, (iv) the distribution
to
the Holders of the Securities of the Debentures, upon exercise of the right
of
the Holder of all of the outstanding Common Securities to dissolve the Trust
as
described above, (v) the entry of a decree of a judicial dissolution of the
Sponsor or the Trust, or (vi) when all of the Securities shall have been called
for redemption and the amounts necessary for redemption thereof shall have
been
paid to the Holders in accordance with the terms of the Securities. As soon
as
practicable after the dissolution of the Trust and upon completion of the
winding up of the Trust, the Trust shall terminate upon the filing of a
certificate of cancellation with the Secretary of State of the State of
Delaware.
If
a
Liquidation of the Trust occurs as described in clause (i), (ii), (iii) or
(v)
in the immediately preceding paragraph, the Trust shall be liquidated by the
Institutional Trustee of the Trust as expeditiously as such Trustee determines
to be possible by distributing, after satisfaction of liabilities to creditors
of the Trust as provided by applicable law, to the Holders of the Securities,
the Debentures on a Pro Rata basis to the extent not satisfied by the Debenture
Issuer, unless such distribution is determined by the Institutional Trustee
not
to be practical, in which event such Holders will be entitled to receive out
of
the assets of the Trust available for distribution to the Holders, after
satisfaction of liabilities to creditors of the Trust to the extent not
satisfied by the Debenture Issuer, an amount equal to the Liquidation
Distribution. An early Liquidation of the Trust pursuant to clause (iv) of
the
immediately preceding paragraph shall occur if the Institutional Trustee
determines that such Liquidation is possible by distributing, after satisfaction
of liabilities to creditors of the Trust, to the Holders of the Securities
on a
Pro Rata basis, the Debentures, and such distribution occurs.
If,
upon
any such Liquidation, the Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly by the Trust on
such
Capital Securities shall be paid to the Holders of the Securities on a Pro
Rata
basis, except that if an Event of Default has occurred and is continuing, the
Capital Securities shall have a preference over the Common Securities with
regard to such distributions.
Upon
any
such Liquidation of the Trust involving a distribution of the Debentures, if
at
the time of such Liquidation, the Capital Securities were rated by at least
one
nationally-recognized statistical rating organization, the Debenture Issuer
will
use its reasonable best efforts to obtain from at least one such or other rating
organization a rating for the Debentures.
After
the
date for any distribution of the Debentures upon dissolution of the Trust,
(i)
the Securities of the Trust will be deemed to be no longer outstanding, (ii)
any
certificates representing the Capital Securities will be deemed to represent
undivided beneficial interests in such of the Debentures as have an aggregate
principal amount equal to the aggregate stated liquidation amount of, with
an
interest rate identical to the distribution rate of, and bearing accrued and
unpaid interest equal to accrued and unpaid distributions on, the Securities
until such certificates are presented to the Debenture Issuer or its agent
for
transfer or reissuance (and until such certificates are so surrendered, no
payments of interest or principal shall be made to Holders of Securities in
respect of any payments due and payable under the Debentures) and (iii) all
rights of Holders of Securities under the Capital Securities or the Common
Securities, as applicable, shall cease, except the right of such Holders to
receive Debentures upon surrender of certificates representing such
Securities.
4.
Redemption
and Distribution
.
(a)
The
Debentures will mature on September 15, 2037. The Debentures may be redeemed
by
the Debenture Issuer, in whole or in part, on any March 15, June 15, September
15 or December 15 on or after September 15, 2012 at the Redemption Price, upon
not less than 30 nor more than 60 days' notice to Holders of such Debentures.
In
addition, upon the occurrence and continuation of a Tax Event, an Investment
Company Event or a Capital Treatment Event, the Debentures may be redeemed
by
the Debenture Issuer in whole or in part, at any time within 90 days following
the occurrence of such Tax Event, Investment Company Event or Capital Treatment
Event, as the case may be (the "Special Redemption Date"), at the Special
Redemption Price, upon not less than 30 nor more than 60 days' notice to Holders
of the Debentures so long as such Tax Event, Investment Company Event or Capital
Treatment Event, as the case may be, is continuing. In each case, the right
of
the Debenture Issuer to redeem the Debentures is subject to the Debenture Issuer
having received prior approval from any regulatory authority having jurisdiction
over the Debenture Issuer, if such approval is then required under applicable
capital guidelines or policies of such regulatory authority.
"Tax
Event" means the receipt by the Debenture Issuer and the Trust of an opinion
of
counsel experienced in such matters to the effect that, as a result of any
amendment to or change (including any announced prospective change) in the
laws
or any regulations thereunder of the United States or any political subdivision
or taxing authority thereof or therein, or as a result of any official
administrative pronouncement (including any private letter ruling, technical
advice memorandum, regulatory procedure, notice or announcement) (an
"Administrative Action") or judicial decision interpreting or applying such
laws
or regulations, regardless of whether such Administrative Action or judicial
decision is issued to or in connection with a proceeding involving the Debenture
Issuer or the Trust and whether or not subject to review or appeal, which
amendment, clarification, change, Administrative Action or decision is enacted,
promulgated or announced, in each case on or after the date of original issuance
of the Debentures, there is more than an insubstantial risk that: (i) the Trust
is, or will be within 90 days of the date of such opinion, subject to United
States federal income tax with respect to income received or accrued on the
Debentures; (ii) if the Debenture Issuer is organized and existing under the
laws of the United States or any state thereof or the District of Columbia,
interest payable by the Debenture Issuer on the Debentures is not, or within
90
days of the date of such opinion, will not be, deductible by the Debenture
Issuer, in whole or in part, for United States federal income tax purposes;
or
(iii) the Trust is, or will be within 90 days of the date of such opinion,
subject to more than a de minimis amount of other taxes (including withholding
taxes), duties, assessments or other governmental charges.
"Investment
Company Event" means the receipt by the Debenture Issuer and the Trust of an
opinion of counsel experienced in such matters to the effect that, as a result
of a change in law or regulation or written change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that
the Trust is or, within 90 days of the date of such opinion will be, considered
an "investment company" that is required to be registered under the Investment
Company Act, which change or prospective change becomes effective or would
become effective, as the case may be, on or after the date of the original
issuance of the Debentures.
"Capital
Treatment Event" means, if the Debenture Issuer is organized and existing under
the laws of the United States or any state thereof or the District of Columbia,
the receipt by the Debenture Issuer and the Trust of an Opinion of Counsel
experienced in such matters to the effect that, as a result of (a) any amendment
to, or change in, the laws, rules or regulations of the United States or any
political subdivision thereof or therein, or any rules, guidelines or policies
of any applicable regulatory authority for the Debenture Issuer or (b) any
official or administrative pronouncement or action or decision interpreting
or
applying such laws, rules or regulations, which amendment or change is effective
or which pronouncement, action or decision is announced on or after the date
of
original issuance of the Debentures, there is more than an insubstantial risk
that, within 90 days of the receipt of such opinion, the aggregate Liquidation
Amount of the Capital Securities will not be eligible to be treated by the
Debenture Issuer as "Tier 1 Capital" (or the then equivalent thereof) for
purposes of the capital adequacy guidelines of the Federal Reserve (or any
successor regulatory authority with jurisdiction over bank or financial holding
companies), as then in effect and applicable to the Debenture Issuer (or if
the
Debenture Issuer is not a bank holding company, such guidelines applied to
the
Debenture Issuer as if the Debenture Issuer were subject to such guidelines);
provided, however, that the inability of the Debenture Issuer to treat all
or
any portion of the aggregate Liquidation Amount of the Capital Securities as
Tier 1 Capital shall not constitute the basis for a Capital Treatment
Event, if such inability results from the Debenture Issuer having cumulative
preferred stock, minority interests in consolidated subsidiaries, or any other
class of security or interest which the Federal Reserve or OTS, as applicable,
may now or hereafter accord Tier 1 Capital treatment in excess of the
amount which may now or hereafter qualify for treatment as Tier 1 Capital
under applicable capital adequacy guidelines; provided further, however, that
the distribution of the Debentures in connection with the liquidation of the
Trust by the Debenture Issuer shall not in and of itself constitute a Capital
Treatment Event unless such liquidation shall have occurred in connection with
a
Tax Event or an Investment Company Event.
"Special
Event" means any of a Capital Treatment Event, a Tax Event or an Investment
Company Event.
"Special
Redemption Price" means, with respect to the redemption of any Debentures
following a Special Event, an amount in cash equal to 103.525% of the principal
amount of Debentures to be redeemed prior to September 15, 2008 and thereafter
equal to the percentage of the principal amount of the Debentures that is
specified below for the Special Redemption Date plus, in each case, unpaid
interest accrued thereon to the Special Redemption Date:
Special
Redemption During the
12-Month
Period Beginning September 15
|
|
Percentage
of Principal Amount
|
|
|
|
2008
|
|
103.140%
|
2009
|
|
102.355%
|
2010
|
|
101.570%
|
2011
|
|
100.785%
|
2012
and thereafter
|
|
100.000%
|
|
|
|
"Redemption
Date" means the date fixed for the redemption of Capital Securities, which
shall
be any March 15, June 15, September 15 or December 15 on or after September
15,
2012.
"Redemption
Price" means 100% of the principal amount of the Debentures being redeemed
plus
accrued and unpaid interest on such Debentures to the Redemption Date.
(b)
Upon
the
repayment in full at maturity or redemption in whole or in part of the
Debentures (other than following the distribution of the Debentures to the
Holders of the Securities), the proceeds from such repayment or payment shall
concurrently be applied to redeem Pro Rata at the applicable Redemption Price,
Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so repaid or redeemed;
provided
,
however
,
that
holders of such Securities shall be given not less than 30 nor more than 60
days' notice of such redemption (other than at the scheduled maturity of the
Debentures).
(c)
If
fewer
than all the outstanding Securities are to be so redeemed, the Common Securities
and the Capital Securities will be redeemed Pro Rata and the Capital Securities
to be redeemed will be as described in Section 4(e)(ii) below.
(d)
The
Trust
may not redeem fewer than all the outstanding Capital Securities unless all
accrued and unpaid Distributions have been paid on all Capital Securities for
all quarterly Distribution periods terminating on or before the date of
redemption.
(e)
Redemption
or Distribution Procedures.
(i)
Notice
of
any redemption of, or notice of distribution of the Debentures in exchange
for,
the Securities (a "Redemption/Distribution Notice") will be given by the Trust
by mail to each Holder of Securities to be redeemed or exchanged not fewer
than
30 nor more than 60 days before the date fixed for redemption or exchange
thereof which, in the case of a redemption, will be the date fixed for
redemption of the Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given pursuant to
this
Section 4(e)(i), a Redemption/Distribution Notice shall be deemed to be given
on
the day such notice is first mailed by first-class mail, postage prepaid, to
Holders of such Securities. Each Redemption/Distribution Notice shall be
addressed to the Holders of such Securities at the address of each such Holder
appearing on the books and records of the Registrar. No defect in the
Redemption/Distribution Notice or in the mailing thereof with respect to any
Holder shall affect the validity of the redemption or exchange proceedings
with
respect to any other Holder.
(ii)
In
the
event that fewer than all the outstanding Securities are to be redeemed, the
Securities to be redeemed shall be redeemed Pro Rata from each Holder of Capital
Securities.
(iii)
If
the
Securities are to be redeemed and the Trust gives a Redemption/Distribution
Notice, which notice may only be issued if the Debentures are redeemed as set
out in this Section 4 (which notice will be irrevocable), then, provided, that
the Institutional Trustee has a sufficient amount of cash in connection with
the
related redemption or maturity of the Debentures, the Institutional Trustee
will, with respect to Book-Entry Capital Securities, on the Redemption Date
or
Special Redemption Date, as applicable, irrevocably deposit with the Depositary
for such Book-Entry Capital Securities, to the extent available therefor, funds
sufficient to pay the relevant Redemption Price or Special Redemption Price,
as
applicable, and will give such Depositary irrevocable instructions and authority
to pay the Redemption Price or Special Redemption Price, as applicable, to
the
Owners of the Capital Securities. With respect to Capital Securities that are
not Book-Entry Capital Securities, the Institutional Trustee will pay, to the
extent available therefor, the relevant Redemption Price or Special Redemption
Price, as applicable, to the Holders of such Securities by check mailed to
the
address of each such Holder appearing on the books and records of the Trust
on
the redemption date. If a Redemption/Distribution Notice shall have been given
and funds deposited as required, then immediately prior to the close of business
on the date of such deposit, Distributions will cease to accrue on the
Securities so called for redemption and all rights of Holders of such Securities
so called for redemption will cease, except the right of the Holders of such
Securities to receive the applicable Redemption Price or Special Redemption
Price, as applicable, specified in Section 4(a). If any date fixed for
redemption of Securities is not a Business Day, then payment of any such
Redemption Price or Special Redemption Price, as applicable, payable on such
date will be made on the next succeeding day that is a Business Day except
that,
if such Business Day falls in the next calendar year, such payment will be
made
on the immediately preceding Business Day, in each case with the same force
and
effect as if made on such date fixed for redemption. If payment of the
Redemption Price or Special Redemption Price, as applicable, in respect of
any
Securities is improperly withheld or refused and not paid either by the Trust
or
by the Debenture Issuer as guarantor pursuant to the Guarantee, Distributions
on
such Securities will continue to accrue at the then applicable rate from the
original redemption date to the actual date of payment, in which case the actual
payment date will be considered the date fixed for redemption for purposes
of
calculating the Redemption Price or Special Redemption Price, as applicable.
In
the event of any redemption of the Capital Securities issued by the Trust in
part, the Trust shall not be required to (i) issue, register the transfer of
or
exchange any Security during a period beginning at the opening of business
15
days before any selection for redemption of the Capital Securities and ending
at
the close of business on the earliest date on which the relevant notice of
redemption is deemed to have been given to all Holders of the Capital Securities
to be so redeemed or (ii) register the transfer of or exchange any Capital
Securities so selected for redemption, in whole or in part, except for the
unredeemed portion of any Capital Securities being redeemed in
part.
(iv)
Redemption/Distribution
Notices shall be sent by the Trust (A) in respect of the Capital Securities,
to
the Holders thereof, and (B) in respect of the Common Securities, to the Holder
thereof.
(v)
Subject
to the foregoing and applicable law (including, without limitation, United
States federal securities laws), and
provided
,
that
the acquiror is not the Holder of the Common Securities or the obligor under
the
Indenture, the Sponsor or any of its subsidiaries may at any time and from
time
to time purchase outstanding Capital Securities by tender, in the open market
or
by private agreement.
5.
Voting
Rights - Capital Securities
.
(a)
Except
as
provided under Sections 5(b) and 7 and as otherwise required by law and the
Declaration, the Holders of the Capital Securities will have no voting rights.
The Administrators are required to call a meeting of the Holders of the Capital
Securities if directed to do so by Holders of not less than 10% in liquidation
amount of the Capital Securities.
(b)
Subject
to the requirements of obtaining a tax opinion by the Institutional Trustee
in
certain circumstances set forth in the last sentence of this paragraph, the
Holders of a Majority in liquidation amount of the Capital Securities, voting
separately as a class, have the right to direct the time, method, and place
of
conducting any proceeding for any remedy available to the Institutional Trustee,
or exercising any trust or power conferred upon the Institutional Trustee under
the Declaration, including the right to direct the Institutional Trustee, as
holder of the Debentures, to (i) exercise the remedies available under the
Indenture as the holder of the Debentures, (ii) waive any past default that
is
waivable under the Indenture,
(iii)
exercise
any right to rescind or annul a declaration that the principal of all the
Debentures shall be due and payable or (iv) consent on behalf of all the Holders
of the Capital Securities to any amendment, modification or termination of
the
Indenture or the Debentures where such consent shall be required;
provided
,
however
,
that,
where a consent or action under the Indenture would require the consent or
act
of the holders of greater than a simple majority in principal amount of
Debentures (a "Super Majority") affected thereby, the Institutional Trustee
may
only give such consent or take such action at the written direction of the
Holders of not less than the proportion in liquidation amount of the Capital
Securities outstanding which the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding. If the Institutional
Trustee fails to enforce its rights under the Debentures after the Holders
of a
Majority or Super Majority, as the case may be, in liquidation amount of such
Capital Securities have so directed the Institutional Trustee, to the fullest
extent permitted by law, a Holder of the Capital Securities may institute a
legal proceeding directly against the Debenture Issuer to enforce the
Institutional Trustee's rights under the Debentures without first instituting
any legal proceeding against the Institutional Trustee or any other person
or
entity. Notwithstanding the foregoing, if an Event of Default has occurred
and
is continuing and such event is attributable to the failure of the Debenture
Issuer to pay interest or premium, if any, on or principal of the Debentures
on
the date such interest, premium, if any, on or principal is payable (or in
the
case of redemption, the redemption date), then a Holder of record of the Capital
Securities may directly institute a proceeding for enforcement of payment,
on or
after the respective due dates specified in the Debentures, to such Holder
directly of the principal of or premium, if any, or interest on the Debentures
having an aggregate principal amount equal to the aggregate liquidation amount
of the Capital Securities of such Holder. The Institutional Trustee shall notify
all Holders of the Capital Securities of any default actually known to the
Institutional Trustee with respect to the Debentures unless (x) such default
has
been cured prior to the giving of such notice or (y) the Institutional Trustee
determines in good faith that the withholding of such notice is in the interest
of the Holders of such Capital Securities, except where the default relates
to
the payment of principal of or interest on any of the Debentures. Such notice
shall state that such Indenture Event of Default also constitutes an Event
of
Default hereunder. Except with respect to directing the time, method and place
of conducting a proceeding for a remedy, the Institutional Trustee shall not
take any of the actions described in clause (i), (ii) or (iii) above unless
the
Institutional Trustee has obtained an opinion of tax counsel to the effect
that,
as a result of such action, the Trust will not be classified as other than
a
grantor trust for United States federal income tax purposes.
In
the
event the consent of the Institutional Trustee, as the holder of the Debentures
is required under the Indenture with respect to any amendment, modification
or
termination of the Indenture, the Institutional Trustee may request the written
direction of the Holders of the Securities with respect to such amendment,
modification or termination and shall vote with respect to such amendment,
modification or termination as directed by a Majority in liquidation amount
of
the Securities voting together as a single class;
provided
,
however
,
that
where a consent under the Indenture would require the consent of a Super
Majority, the Institutional Trustee may only give such consent at the written
direction of the Holders of not less than the proportion in liquidation amount
of such Securities outstanding which the relevant Super Majority represents
of
the aggregate principal amount of the Debentures outstanding. The Institutional
Trustee shall not take any such action in accordance with the written directions
of the Holders of the Securities unless the Institutional Trustee has obtained
an opinion of tax counsel to the effect that, as a result of such action, the
Trust will not be classified as other than a grantor trust for United States
federal income tax purposes.
A
waiver
of an Indenture Event of Default will constitute a waiver of the corresponding
Event of Default hereunder. Any required approval or direction of Holders of
the
Capital Securities may be given at a separate meeting of Holders of the Capital
Securities convened for such purpose, at a meeting of all of the Holders of
the
Securities in the Trust or pursuant to written consent. The Institutional
Trustee will cause a notice of any meeting at which Holders of the Capital
Securities are entitled to vote, or of any matter upon which action by written
consent of such Holders is to be taken, to be mailed to each Holder of record
of
the Capital Securities. Each such notice will include a statement setting forth
the following information (i) the date of such meeting or the date by which
such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents. No vote or consent of the Holders of the
Capital Securities will be required for the Trust to redeem and cancel Capital
Securities or to distribute the Debentures in accordance with the Declaration
and the terms of the Securities.
Notwithstanding
that Holders of the Capital Securities are entitled to vote or consent under
any
of the circumstances described above, any of the Capital Securities that are
owned by the Sponsor or any Affiliate of the Sponsor shall not entitle the
Holder thereof to vote or consent and shall, for purposes of such vote or
consent, be treated as if such Capital Securities were not
outstanding.
In
no
event will Holders of the Capital Securities have the right to vote to appoint,
remove or replace the Administrators, which voting rights are vested exclusively
in the Sponsor as the Holder of all of the Common Securities of the Trust.
Under
certain circumstances as more fully described in the Declaration, Holders of
Capital Securities have the right to vote to appoint, remove or replace the
Institutional Trustee and the Delaware Trustee.
6.
Voting
Rights - Common Securities
.
(a)
Except
as
provided under Sections 6(b), 6(c) and 7 and as otherwise required by law and
the Declaration, the Common Securities will have no voting rights.
(b)
The
Holders of the Common Securities are entitled, in accordance with Article IV
of
the Declaration, to vote to appoint, remove or replace any
Administrators.
(c)
Subject
to Section 6.8 of the Declaration and only after each Event of Default (if
any)
with respect to the Capital Securities has been cured, waived or otherwise
eliminated and subject to the requirements of the second to last sentence of
this paragraph, the Holders of a Majority in liquidation amount of the Common
Securities, voting separately as a class, may direct the time, method, and
place
of conducting any proceeding for any remedy available to the Institutional
Trustee, or exercising any trust or power conferred upon the Institutional
Trustee under the Declaration, including (i) directing the time, method, place
of conducting any proceeding for any remedy available to the Debenture Trustee,
or exercising any trust or power conferred on the Debenture Trustee with respect
to the Debentures, (ii) waiving any past default and its consequences that
are
waivable under the Indenture, or (iii) exercising any right to rescind or annul
a declaration that the principal of all the Debentures shall be due and payable,
provided, however, that, where a consent or action under the Indenture would
require a Super Majority, the Institutional Trustee may only give such consent
or take such action at the written direction of the Holders of not less than
the
proportion in liquidation amount of the Common Securities which the relevant
Super Majority represents of the aggregate principal amount of the Debentures
outstanding. Notwithstanding this Section 6(c), the Institutional Trustee shall
not revoke any action previously authorized or approved by a vote or consent
of
the Holders of the Capital Securities. Other than with respect to directing
the
time, method and place of conducting any proceeding for any remedy available
to
the Institutional Trustee or the Debenture Trustee as set forth above, the
Institutional Trustee shall not take any action described in clause (i), (ii)
or
(iii) above, unless the Institutional Trustee has obtained an opinion of tax
counsel to the effect that for the purposes of United States federal income
tax
the Trust will not be classified as other than a grantor trust on account of
such action. If the Institutional Trustee fails to enforce its rights under
the
Declaration, to the fullest extent permitted by law any Holder of the Common
Securities may institute a legal proceeding directly against any Person to
enforce the Institutional Trustee's rights under the Declaration, without first
instituting a legal proceeding against the Institutional Trustee or any other
Person.
Any
approval or direction of Holders of the Common Securities may be given at a
separate meeting of Holders of the Common Securities convened for such purpose,
at a meeting of all of the Holders of the Securities in the Trust or pursuant
to
written consent. The Administrators will cause a notice of any meeting at which
Holders of the Common Securities are entitled to vote, or of any matter upon
which action by written consent of such Holders is to be taken, to be mailed
to
each Holder of the Common Securities. Each such notice will include a statement
setting forth (i) the date of such meeting or the date by which such action
is
to be taken, (ii) a description of any resolution proposed for adoption at
such
meeting on which such Holders are entitled to vote or of such matter upon which
written consent is sought and (iii) instructions for the delivery of proxies
or
consents.
No
vote
or consent of the Holders of the Common Securities will be required for the
Trust to redeem and cancel Common Securities or to distribute the Debentures
in
accordance with the Declaration and the terms of the Securities.
7.
Amendments
to Declaration and Indenture
.
(a)
In
addition to any requirements under Section 11.1 of the Declaration, if any
proposed amendment to the Declaration provides for, or the Trustees otherwise
propose to effect, (i) any action that would adversely affect the powers,
preferences or special rights of the Securities, whether by way of amendment
to
the Declaration or otherwise, or (ii) the Liquidation of the Trust, other than
as described in Section 7.1 of the Declaration, then the Holders of outstanding
Securities, voting together as a single class, will be entitled to vote on
such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of not less than a Majority in
liquidation amount of the Securities affected thereby; provided, however, if
any
amendment or proposal referred to in clause (i) above would adversely affect
only the Capital Securities or only the Common Securities, then only the
affected class will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of a
Majority in liquidation amount of such class of Securities.
(b)
In
the
event the consent of the Institutional Trustee as the holder of the Debentures
is required under the Indenture with respect to any amendment, modification
or
termination of the Indenture or the Debentures, the Institutional Trustee shall
request the written direction of the Holders of the Securities with respect
to
such amendment, modification or termination and shall vote with respect to
such
amendment, modification, or termination as directed by a Majority in liquidation
amount of the Securities voting together as a single class; provided, however,
that where a consent under the Indenture would require a Super Majority, the
Institutional Trustee may only give such consent at the written direction of
the
Holders of not less than the proportion in liquidation amount of the Securities
which the relevant Super Majority represents of the aggregate principal amount
of the Debentures outstanding.
(c)
Notwithstanding
the foregoing, no amendment or modification may be made to the Declaration
if
such amendment or modification would (i) cause the Trust to be classified for
purposes of United States federal income taxation as other than a grantor trust,
(ii) reduce or otherwise adversely affect the powers of the Institutional
Trustee or (iii) cause the Trust to be deemed an "investment company" which
is
required to be registered under the Investment Company Act.
(d)
Notwithstanding
any provision of the Declaration, the right of any Holder of the Capital
Securities to receive payment of distributions and other payments upon
redemption or otherwise, on or after their respective due dates, or to institute
a suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
For
the protection and enforcement of the foregoing provision, each and every Holder
of the Capital Securities shall be entitled to such relief as can be given
either at law or equity.
8.
Pro
Rata
.
A
reference in these terms of the Securities to any payment, distribution or
treatment as being "Pro Rata" shall mean pro rata to each Holder of the
Securities according to the aggregate liquidation amount of the Securities
held
by the relevant Holder in relation to the aggregate liquidation amount of all
Securities outstanding unless, in relation to a payment, an Event of Default
has
occurred and is continuing, in which case any funds available to make such
payment shall be paid first to each Holder of the Capital Securities Pro Rata
according to the aggregate liquidation amount of the Capital Securities held
by
the relevant Holder relative to the aggregate liquidation amount of all Capital
Securities outstanding, and only after satisfaction of all amounts owed to
the
Holders of the Capital Securities, to each Holder of the Common Securities
Pro
Rata according to the aggregate liquidation amount of the Common Securities
held
by the relevant Holder relative to the aggregate liquidation amount of all
Common Securities outstanding.
9.
Ranking
.
The
Capital Securities rank pari passu with, and payment thereon shall be made
Pro
Rata with, the Common Securities except that, where an Event of Default has
occurred and is continuing, the rights of Holders of the Common Securities
to
receive payment of Distributions and payments upon liquidation, redemption
and
otherwise are subordinated to the rights of the Holders of the Capital
Securities with the result that no payment of any Distribution on, or Redemption
Price or Special Redemption Price of, any Common Security, and no other payment
on account of redemption, liquidation or other acquisition of Common Securities,
shall be made unless payment in full in cash of all accumulated and unpaid
Distributions on all outstanding Capital Securities for all distribution periods
terminating on or prior thereto, or in the case of payment of the Redemption
Price or Special Redemption Price the full amount of such Redemption Price
or
the Special Redemption Price on all outstanding Capital Securities then called
for redemption, shall have been made or provided for, and all funds immediately
available to the Institutional Trustee shall first be applied to the payment
in
full in cash of all Distributions on, or the Redemption Price or the Special
Redemption Price of, the Capital Securities then due and payable.
10.
Acceptance
of Guarantee and Indenture
.
Each
Holder of the Capital Securities and the Common Securities, by the acceptance
of
such Securities, agrees to the provisions of the Guarantee, including the
subordination provisions therein and to the provisions of the
Indenture.
11.
No
Preemptive Rights
.
The
Holders of the Securities shall have no, and the issuance of the Securities
is
not subject to, preemptive or similar rights to subscribe for any additional
securities.
12.
Miscellaneous
.
These
terms constitute a part of the Declaration. The Sponsor will provide a copy
of
the Declaration, the Guarantee, and the Indenture to a Holder without charge
on
written request to the Sponsor at its principal place of business.
EXHIBIT
A-1
FORM
OF CAPITAL SECURITY CERTIFICATE
[FORM
OF
FACE OF SECURITY]
THIS
CAPITAL SECURITY IS A GLOBAL CAPITAL SECURITY WITHIN THE MEANING OF THE
DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY ("DTC") OR A NOMINEE OF DTC. THIS CAPITAL SECURITY
IS
EXCHANGEABLE FOR CAPITAL SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
DECLARATION, AND NO TRANSFER OF THIS CAPITAL SECURITY (OTHER THAN A TRANSFER
OF
THIS CAPITAL SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE
OF
DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS
THIS CAPITAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO
WILSHIRE
STATUTORY TRUST IV
OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CAPITAL
SECURITY ISSUED IS REGISTERED AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC (AND ANY PAYMENT HEREON IS MADE TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL
OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO THE DEBENTURE ISSUER OR THE
TRUST, (B) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO
A
PERSON THE HOLDER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING
MADE IN RELIANCE ON RULE 144A, (C) TO A "NON U.S. PERSON" IN AN "OFFSHORE
TRANSACTION" PURSUANT TO REGULATION S UNDER THE SECURITIES ACT, (D)
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1),
(2),
(3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN "ACCREDITED INVESTOR," FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT
TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE DEBENTURE ISSUER'S AND THE TRUST'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY
OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
TO
EACH OF THEM IN ACCORDANCE WITH THE AMENDED AND RESTATED DECLARATION OF TRUST,
A
COPY OF WHICH MAY BE OBTAINED FROM THE DEBENTURE ISSUER OR THE TRUST. THE HOLDER
OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY WITH THE
FOREGOING RESTRICTIONS.
THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS AND WARRANTS
THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS SECURITY UNLESS
SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT OR AN APPLICABLE
EXEMPTION THEREFROM.
THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT
OR
OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), (EACH A "PLAN"), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT
IN THE ENTITY AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN MAY ACQUIRE
OR
HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER
IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS
NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT
TO
SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING
THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING
OF
SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT
RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975
OF
THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.
IN
CONNECTION WITH ANY TRANSFER, THE HOLDER OF THE CERTIFICATE WILL DELIVER TO
THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY
BE
REQUIRED BY THE AMENDED AND RESTATED DECLARATION OF TRUST TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A
LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS
THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING A LIQUIDATION
AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER
OF THIS SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT
OF
DISTRIBUTIONS ON THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED
TO
HAVE NO INTEREST WHATSOEVER IN THIS SECURITY.
Certificate
Number [P-001]
|
Number
of Capital Securities: 25,000
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CUSIP
No.____________________
Certificate
Evidencing Capital Securities
of
Wilshire
Statutory Trust IV
TP
Securities
(liquidation
amount $1,000 per Capital Security)
Wilshire
Statutory Trust IV, a statutory trust created under the laws of the State of
Delaware (the "Trust"), hereby certifies that Cede & Co., as nominee on
behalf of the Depository Trust Company (the "Holder"), is the registered owner
of 25,000 capital securities of the Trust representing undivided beneficial
interests in the assets of the Trust, designated the TP Securities (liquidation
amount $1,000 per Capital Security) (the "Capital Securities"). Subject to
the
Declaration (as defined below), the Capital Securities are transferable on
the
books and records of the Trust, in person or by a duly authorized attorney,
upon
surrender of this Certificate duly endorsed and in proper form for transfer.
The
Capital Securities represented hereby are issued pursuant to, and the
designation, rights, privileges, restrictions, preferences and other terms
and
provisions of the Capital Securities shall in all respects be subject to, the
provisions of the Amended and Restated Declaration of Trust of the Trust, dated
as of July 10, 2007, among Brian E. Cho and Soo Bong Min, as Administrators,
LaSalle National Trust Delaware, as Delaware Trustee, LaSalle Bank National
Association, as Institutional Trustee, Wilshire Bancorp, Inc., as Sponsor,
and
the holders from time to time of undivided beneficial interests in the assets
of
the Trust, including the designation of the terms of the Capital Securities
as
set forth in Annex I to the Declaration, as the same may be amended from time
to
time (the "Declaration"). Capitalized terms used herein but not defined shall
have the meaning given them in the Declaration. The Holder is entitled to the
benefits of the Guarantee to the extent provided therein. The Sponsor will
provide a copy of the Declaration, the Guarantee, and the Indenture to the
Holder without charge upon written request to the Sponsor at its principal
place
of business.
By
acceptance of this Security, the Holder is bound by the Declaration and is
entitled to the benefits thereunder.
By
acceptance of this Security, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Capital
Securities as evidence of beneficial ownership in the Debentures.
This
Capital Security is governed by, and shall be construed in accordance with,
the
laws of the State of Delaware, without regard to principles of conflict of
laws.
IN
WITNESS WHEREOF, the Trust has duly executed this certificate.
Wilshire
Statutory Trust IV
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By:
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Name:
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Title:
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Administrator
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Dated:
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CERTIFICATE
OF AUTHENTICATION
This
represents Capital Securities referred to in the within-mentioned
Declaration.
ASSOCIATION,
not in its individual capacity
but
solely as Institutional Trustee
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By:
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Authorized
Signatory
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[FORM
OF
REVERSE OF SECURITY]
Distributions
payable on each Capital Security will be payable at a variable per annum rate
of
interest, reset quarterly, equal to LIBOR (as defined in the Declaration) plus
1.38% (the "Coupon Rate") of the stated liquidation amount of $1,000 per Capital
Security (provided, however, that the Coupon Rate for any Distribution Payment
Period may not exceed the highest rate permitted by New York law, as the same
may be modified by United States law of general applicability), such Coupon
Rate
being the rate of interest payable on the Debentures to be held by the
Institutional Trustee. Distributions in arrears for more than one quarterly
period will bear interest thereon compounded quarterly at the then applicable
Coupon Rate for each such quarterly period (to the extent permitted by
applicable law). The term "Distributions" as used herein includes cash
distributions, any such compounded distributions and any Additional Interest
payable on the Debentures unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the Debentures held
by
the Institutional Trustee and to the extent the Institutional Trustee has funds
legally available in the Property Account therefor. The amount of Distributions
payable for any period shall be computed for any full quarterly Distribution
period on the basis of a 360-day year and the actual number of days elapsed
in
the relevant Distribution Payment Period.
Except
as
otherwise described below, Distributions on the Capital Securities will be
cumulative, will accrue from the date of original issuance and will be payable
quarterly in arrears on March 15, June 15, September 15 and December 15 of
each
year, commencing on September 15, 2007 (each, a "Distribution Payment Date").
Subject to prior submission of Notice (as defined in the Indenture), and so
long
as no Event of Default pursuant to paragraphs (c), (e), (f) or (g) of Section
5.01 of the Indenture has occurred and is continuing, the Debenture Issuer
has
the right under the Indenture to defer payments of interest on the Debentures
by
extending the interest distribution period for up to 20 consecutive quarterly
periods (each, an "Extension Period") at any time and from time to time on
the
Debentures, subject to the conditions described below, during which Extension
Period no interest shall be due and payable (except any Additional Interest
that
may be due and payable). During any Extension Period, interest will continue
to
accrue on the Debentures, and interest on such accrued interest (such accrued
interest and interest thereon referred to herein as "Deferred Interest") will
accrue at an annual rate equal to the Coupon Rate in effect for each such
Extension Period, compounded quarterly from the date such Deferred Interest
would have been payable were it not for the Extension Period, to the extent
permitted by law. No Extension Period may end on a date other than a
Distribution Payment Date. At the end of any such Extension Period, the
Debenture Issuer shall pay all Deferred Interest then accrued and unpaid on
the
Debentures;
provided
,
however
,
that no
Extension Period may extend beyond the Maturity Date, Redemption Date (to the
extent redeemed) or Special Redemption Date. Prior to the termination of any
Extension Period, the Debenture Issuer may further extend such period;
provided
,
that
such period together with all such previous and further consecutive extensions
thereof shall not exceed 20 consecutive quarterly periods, or extend beyond
the
Maturity Date, Redemption Date (to the extent redeemed) or Special Redemption
Date. Upon the termination of any Extension Period and upon the payment of
all
Deferred Interest, the Debenture Issuer may commence a new Extension Period,
subject to the foregoing requirements. No interest or Deferred Interest (except
any Additional Amounts that may be due and payable) shall be due and payable
during an Extension Period, except at the end thereof, but Deferred Interest
shall accrue upon each installment of interest that would otherwise have been
due and payable during such Extension Period until such installment is paid.
If
Distributions are deferred, the Distributions due shall be paid on the date
that
the related Extension Period terminates to Holders of the Securities as they
appear on the books and records of the Trust on the record date immediately
preceding such date. Distributions on the Securities must be paid on the dates
payable (after giving effect to any Extension Period) to the extent that the
Trust has funds legally available for the payment of such distributions in
the
Property Account of the Trust. The Trust's funds available for Distribution
to
the Holders of the Securities will be limited to payments received from the
Debenture Issuer. The payment of Distributions out of moneys held by the Trust
is guaranteed by the Guarantor pursuant to the Guarantee.
The
Capital Securities shall be redeemable as provided in the
Declaration.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned assigns and transfers this Capital Security
Certificate to:
_______________________
_______________________
_______________________
(Insert
assignee's social security or tax identification number)
_______________________
_______________________
_______________________
(Insert
address and zip code of assignee),
and
irrevocably
appoints _____________________________________________________________________
as
agent
to transfer this Capital Security Certificate on the books of the Trust. The
agent may substitute another to act for it, him or her.
Date:
_____________________
Signature: __________________
(Sign
exactly as your name appears on the other side of this Capital Security
Certificate)
Signature
Guarantee:
1
_______________________
1
Signature must be guaranteed by an "eligible
guarantor institution" that is a bank, stockbroker, savings and loan association
or credit union meeting the requirements of the Security registrar, which
requirements include membership or participation in the Securities Transfer
Agents Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Security registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act
of
1934, as amended.
EXHIBIT
A-2
FORM
OF COMMON SECURITY CERTIFICATE
THIS
COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS
AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT
TO AN EXEMPTION FROM REGISTRATION.
EXCEPT
AS
SET FORTH IN SECTION 8.1(b) OF THE DECLARATION (AS DEFINED BELOW), THIS SECURITY
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED.
Certificate
Number [C-001]
|
Number
of Common Securities: 774
|
Certificate
Evidencing Common Securities
of
Wilshire
Statutory Trust IV
Wilshire
Statutory Trust IV, a statutory trust created under the laws of the State of
Delaware (the "Trust"), hereby certifies that Wilshire Bancorp, Inc. (the
"Holder") is the registered owner of 774 common securities of the Trust
representing undivided beneficial interests in the assets of the Trust
(liquidation amount $1,000 per Common Security) (the "Common Securities").
The
Common Securities represented hereby are issued pursuant to, and the
designation, rights, privileges, restrictions, preferences and other terms
and
provisions of the Common Securities shall in all respects be subject to, the
provisions of the Amended and Restated Declaration of Trust of the Trust, dated
as of July 10, 2007, among Brian E. Cho and Soo Bong Min, as Administrators,
LaSalle National Trust Delaware, as Delaware Trustee, LaSalle Bank National
Association, as Institutional Trustee, the Holder, as Sponsor, and the holders
from time to time of undivided beneficial interests in the assets of the Trust,
including the designation of the terms of the Common Securities as set forth
in
Annex I to the Declaration, as the same may be amended from time to time (the
"Declaration"). Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Sponsor will provide a copy of the
Declaration and the Indenture to the Holder without charge upon written request
to the Sponsor at its principal place of business.
As
set
forth in the Declaration, when an Event of Default has occurred and is
continuing, the rights of Holders of Common Securities to payment in respect
of
Distributions and payments upon Liquidation, redemption or otherwise are
subordinated to the rights of payment of Holders of the Capital
Securities.
By
acceptance of this Certificate, the Holder is bound by the Declaration and
is
entitled to the benefits thereunder.
By
acceptance of this Certificate, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of undivided beneficial ownership in the
Debentures.
This
Common Security is governed by, and shall be construed in accordance with,
the
laws of the State of Delaware, without regard to principles of conflict of
laws.
IN
WITNESS WHEREOF, the Trust has executed this certificate as of this ______
day
of ____________________, 2007.
Wilshire Statutory Trust
IV
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|
|
|
|
|
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By:
|
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Name:
|
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Title:
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Administrator
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[FORM
OF
REVERSE OF SECURITY]
Distributions
payable on each Common Security will be identical in amount to the Distributions
payable on each Capital Security, which is at a variable per annum rate of
interest, reset quarterly, equal to LIBOR (as defined in the Declaration) plus
1.38% (the "Coupon Rate") of the stated liquidation amount of $1,000 per Capital
Security (provided, however, that the Coupon Rate for any Distribution Payment
Period may not exceed the highest rate permitted by New York law, as the same
may be modified by United States law of general applicability), such Coupon
Rate
being the rate of interest payable on the Debentures to be held by the
Institutional Trustee. Distributions in arrears for more than one quarterly
period will bear interest thereon compounded quarterly at the then applicable
Coupon Rate for each such quarterly period (to the extent permitted by
applicable law). The term "Distributions" as used herein includes cash
distributions, any such compounded distributions and any Additional Interest
payable on the Debentures unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the Debentures held
by
the Institutional Trustee and to the extent the Institutional Trustee has funds
legally available in the Property Account therefor. The amount of Distributions
payable for any period shall be computed for any full quarterly Distribution
period on the basis of a 360-day year and the actual number of days elapsed
in
the relevant Distribution Payment Period.
Except
as
otherwise described below, Distributions on the Common Securities will be
cumulative, will accrue from the date of original issuance and will be payable
quarterly in arrears on March 15, June 15, September 15 and December 15 of
each
year, commencing on September 15, 2007 (each, a "Distribution Payment Date").
Subject to prior submission of Notice (as defined in the Indenture), and so
long
as no Event of Default pursuant to paragraphs (c), (e), (f) or (g) of Section
5.01 of the Indenture has occurred and is continuing, the Debenture Issuer
has
the right under the Indenture to defer payments of interest on the Debentures
by
extending the interest distribution period for up to 20 consecutive quarterly
periods (each, an "Extension Period") at any time and from time to time on
the
Debentures, subject to the conditions described below, during which Extension
Period no interest shall be due and payable (except any Additional Interest
that
may be due and payable). During any Extension Period, interest will continue
to
accrue on the Debentures, and interest on such accrued interest (such accrued
interest and interest thereon referred to herein as "Deferred Interest") will
accrue at an annual rate equal to the Coupon Rate in effect for each such
Extension Period, compounded quarterly from the date such Deferred Interest
would have been payable were it not for the Extension Period, to the extent
permitted by law. No Extension Period may end on a date other than a
Distribution Payment Date. At the end of any such Extension Period, the
Debenture Issuer shall pay all Deferred Interest then accrued and unpaid on
the
Debentures; provided, however, that no Extension Period may extend beyond the
Maturity Date, Redemption Date (to the extent redeemed) or Special Redemption
Date. Prior to the termination of any Extension Period, the Debenture Issuer
may
further extend such period, provided, that such period together with all such
previous and further consecutive extensions thereof shall not exceed 20
consecutive quarterly periods, or extend beyond the Maturity Date, Redemption
Date (to the extent redeemed) or Special Redemption Date. Upon the termination
of any Extension Period and upon the payment of all Deferred Interest, the
Debenture Issuer may commence a new Extension Period, subject to the foregoing
requirements. No interest or Deferred Interest (except any Additional Interest
that may be due and payable) shall be due and payable during an Extension
Period, except at the end thereof, but Deferred Interest shall accrue upon
each
installment of interest that would otherwise have been due and payable during
such Extension Period until such installment is paid. If Distributions are
deferred, the Distributions due shall be paid on the date that the related
Extension Period terminates to Holders of the Securities as they appear on
the
books and records of the Trust on the record date immediately preceding such
date.
Distributions
on the Securities must be paid on the dates payable (after giving effect to
any
Extension Period) to the extent that the Trust has funds legally available
for
the payment of such distributions in the Property Account of the Trust. The
Trust's funds legally available for Distribution to the Holders of the
Securities will be limited to payments received from the Debenture Issuer.
The
payment of Distributions out of moneys held by the Trust is guaranteed by the
Guarantor pursuant to the Guarantee.
The
Common Securities shall be redeemable as provided in the
Declaration.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned assigns and transfers this Common Security Certificate
to:
________________________
________________________
________________________
(Insert
assignee's social security or tax identification number)
_________________________
_________________________
_________________________
(Insert
address and zip code of assignee),
and
irrevocably appoints ________ as agent to transfer this Common Security
Certificate on the books of the Trust. The agent may substitute another to
act
for him or her.
Date:
__________________
Signature:
_______________
(Sign
exactly as your name appears on the other side of this Common Security
Certificate)
Signature
Guarantee:
1
_________________
1
Signature
must be guaranteed by an "eligible guarantor institution" that is a bank,
stockbroker, savings and loan association or credit union, meeting the
requirements of the Security registrar, which requirements include membership
or
participation in the Securities Transfer Agents Medallion Program ("STAMP")
or
such other "signature guarantee program" as may be determined by the Security
registrar in addition to, or in substitution for, STAMP, all in accordance
with
the Securities Exchange Act of 1934, as amended.
GUARANTEE
AGREEMENT
WILSHIRE
BANCORP, INC.
Dated
as
of July 10, 2007
TABLE
OF CONTENTS
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Page
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ARTICLE
I
|
DEFINITIONS
AND INTERPRETATION
|
SECTION
1.1.
|
Definitions
and Interpretation
|
1
|
ARTICLE
II
|
POWERS,
DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
|
|
SECTION
2.1.
|
Powers
and Duties of the Guarantee Trustee
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4
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SECTION
2.2.
|
Certain
Rights of the Guarantee Trustee
|
5
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SECTION
2.3.
|
Not
Responsible for Recitals or Issuance of Guarantee
|
7
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SECTION
2.4.
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Events
of Default; Waiver
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7
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SECTION
2.5.
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Events
of Default; Notice
|
8
|
|
ARTICLE
III
|
THE
GUARANTEE TRUSTEE
|
|
SECTION
3.1.
|
The
Guarantee Trustee; Eligibility
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8
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SECTION
3.2.
|
Appointment,
Removal and Resignation of the Guarantee Trustee
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9
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ARTICLE
IV
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GUARANTEE
|
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SECTION
4.1.
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Guarantee
|
10
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SECTION
4.2.
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Waiver
of Notice and Demand
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10
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SECTION
4.3.
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Obligations
Not Affected
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10
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SECTION
4.4.
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Rights
of Holders
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11
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SECTION
4.5.
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Guarantee
of Payment
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12
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SECTION
4.6.
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Subrogation
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12
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SECTION
4.7.
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Independent
Obligations
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12
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SECTION
4.8.
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Enforcement
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12
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TABLE
OF CONTENTS
(continued)
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Page
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ARTICLE
V
|
LIMITATION
OF TRANSACTIONS; SUBORDINATION
|
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SECTION
5.1.
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Limitation
of Transactions
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13
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SECTION
5.2.
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Ranking
|
13
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ARTICLE
VI
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TERMINATION
|
|
SECTION
6.1.
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Termination
|
14
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ARTICLE
VII
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INDEMNIFICATION
|
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SECTION
7.1.
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Exculpation
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14
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SECTION
7.2.
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Indemnification
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14
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SECTION
7.3.
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Compensation;
Reimbursement of Expenses
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15
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ARTICLE
VIII
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MISCELLANEOUS
|
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SECTION
8.1.
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Successors
and Assigns
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16
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SECTION
8.2.
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Amendments
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16
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SECTION
8.3.
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Notices
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16
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SECTION
8.4.
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Benefit
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17
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SECTION
8.5.
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Governing
Law
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17
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SECTION
8.6.
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Counterparts
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17
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GUARANTEE
AGREEMENT
This
GUARANTEE AGREEMENT (the "Guarantee"), dated as of July 10, 2007, is executed
and delivered by Wilshire Bancorp, Inc., incorporated in California (the
"Guarantor"), and LaSalle Bank National Association, as trustee (the "Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from time to
time
of the Capital Securities (as defined herein) of Wilshire Statutory Trust IV,
a
Delaware statutory trust (the "Issuer").
WHEREAS,
pursuant to an Amended and Restated Declaration of Trust (the "Declaration"),
dated as of July 10, 2007, among the trustees named therein of the Issuer,
the
administrators of the Issuer named therein, Wilshire Bancorp, Inc., as sponsor,
and the Holders from time to time of undivided beneficial interests in the
assets of the Issuer, the Issuer is issuing on the date hereof securities,
having an aggregate liquidation amount of up to $25,000,000, designated the
TP
Securities (the "Capital Securities"); and
WHEREAS,
as incentive for the Holders to purchase the Capital Securities, the Guarantor
desires irrevocably and unconditionally to agree, to the extent set forth in
this Guarantee, to pay to the Holders of Capital Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms
and
conditions set forth herein.
NOW,
THEREFORE, in consideration of the purchase by each Holder of the Capital
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for the benefit
of
the Holders.
ARTICLE
I
DEFINITIONS
AND INTERPRETATION
SECTION
1.1.
Definitions and Interpretation
.
In
this
Guarantee, unless the context otherwise requires:
(a)
capitalized
terms used in this Guarantee but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;
(b)
a
term
defined anywhere in this Guarantee has the same meaning throughout;
(c)
all
references to "the Guarantee" or "this Guarantee" are to this Guarantee as
modified, supplemented or amended from time to time;
(d)
all
references in this Guarantee to Articles and Sections are to Articles and
Sections of this Guarantee, unless otherwise specified;
(e)
terms
defined in the Declaration as of the date of execution of this Guarantee have
the same meanings when used in this Guarantee, unless otherwise defined in
this
Guarantee or unless the context otherwise requires; and
(f)
a
reference to the singular includes the plural and vice versa.
"Beneficiaries"
means any Person to whom the Issuer is or hereafter becomes indebted or
liable.
"Corporate
Trust Office" means the office of the Guarantee Trustee at which the corporate
trust business of the Guarantee Trustee shall, at any particular time, be
principally administered.
"Covered
Person" means any Holder of Capital Securities.
"Debentures"
means the junior subordinated debentures of Wilshire Bancorp, Inc., designated
the Junior Subordinated Debt Securities due 2037, held by the Institutional
Trustee (as defined in the Declaration) of the Issuer.
"Event
of
Default" has the meaning set forth in Section 2.4.
"Guarantee
Payments" means the following payments or distributions, without duplication,
with respect to the Capital Securities, to the extent not paid or made by the
Issuer: (i) any accrued and unpaid Distributions (as defined in the
Declaration) which are required to be paid on such Capital Securities to the
extent the Issuer has funds available in the Property Account (as defined in
the
Declaration) therefor at such time, (ii) the Redemption Price (as defined in
the
Indenture) to the extent the Issuer has funds available in the Property Account
therefor at such time, with respect to any Capital Securities called for
redemption by the Issuer, (iii) the Special Redemption Price (as defined in
the
Indenture) to the extent the Issuer has funds available in the Property Account
therefor at such time, with respect to Capital Securities called for redemption
upon the occurrence of a Special Event (as defined in the Indenture), and
(iv) upon a voluntary or involuntary liquidation, dissolution, winding-up
or termination of the Issuer (other than in connection with the distribution
of
Debentures to the Holders of the Capital Securities in exchange therefor as
provided in the Declaration), the lesser of (a) the aggregate of the liquidation
amount and all accrued and unpaid Distributions on the Capital Securities to
the
date of payment, to the extent the Issuer has funds available in the Property
Account therefor at such time, and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of the Issuer
after satisfaction of liabilities to creditors of the Issuer as required by
applicable law (in either case, the "Liquidation Distribution").
"Guarantee
Trustee" means LaSalle Bank National Association, until a Successor Guarantee
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Guarantee and thereafter means each such Successor Guarantee
Trustee.
"Holder"
means any holder, as registered on the books and records of the Issuer, of
any
Capital Securities; provided, however, that, in determining whether the holders
of the requisite percentage of Capital Securities have given any request,
notice, consent or waiver hereunder, "Holder" shall not include the Guarantor
or
any Affiliate of the Guarantor.
"Indemnified
Person" means the Guarantee Trustee (including in its individual capacity),
any
Affiliate of the Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or agents
of
the Guarantee Trustee.
"Indenture"
means the Indenture, dated as of July 10, 2007, between the Guarantor and
LaSalle Bank National Association, not in its individual capacity but solely
as
trustee, and any indenture supplemental thereto pursuant to which the Debentures
are to be issued to the Institutional Trustee of the Issuer.
"Liquidation
Distribution" has the meaning set forth in the definition of "Guarantee
Payments" herein.
"Majority
in liquidation amount of the Capital Securities" means Holder(s) of outstanding
Capital Securities, voting together as a class, but separately from the holders
of Common Securities, of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation
or
otherwise, plus accrued and unpaid Distributions to, but excluding, the date
upon which the voting percentages are determined) of all Capital Securities
then
outstanding.
"Obligations"
means any costs, expenses or liabilities (but not including liabilities related
to taxes) of the Issuer, other than obligations of the Issuer to pay to holders
of any Trust Securities the amounts due such holders pursuant to the terms
of
the Trust Securities.
"Officer's
Certificate" means, with respect to any Person, a certificate signed by one
Authorized Officer of such Person. Any Officer's Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Guarantee shall include:
(a)
a
statement that each officer signing the Officer's Certificate has read the
covenant or condition and the definitions relating thereto;
(b)
a
brief
statement of the nature and scope of the examination or investigation undertaken
by each officer in rendering the Officer's Certificate;
(c)
a
statement that each such officer has made such examination or investigation
as,
in such officer's opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d)
a
statement as to whether, in the opinion of each such officer, such condition
or
covenant has been complied with.
"Person"
means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"Responsible
Officer" means, with respect to the Guarantee Trustee, any officer within the
CDO Trust Services Group of the Corporate Trust Office of the Guarantee Trustee
with direct responsibility for the administration of any matters relating to
this Guarantee, including any vice president, any assistant vice president,
any
secretary, any assistant secretary, the treasurer, any assistant treasurer,
any
trust officer or other officer of the Corporate Trust Office of the Guarantee
Trustee customarily performing functions similar to those performed by any
of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Successor
Guarantee Trustee" means a successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 3.1.
"Trust
Securities" means the Common Securities and the Capital Securities.
ARTICLE
II
POWERS,
DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION
2.1.
Powers and Duties of the Guarantee Trustee
.
(a)
This
Guarantee shall be held by the Guarantee Trustee for the benefit of the Holders
of the Capital Securities, and the Guarantee Trustee shall not transfer this
Guarantee to any Person except a Holder of Capital Securities exercising his
or
her rights pursuant to Section 4.4(b) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, and such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the appointment of such
Successor Guarantee Trustee.
(b)
If
an
Event of Default actually known to a Responsible Officer of the Guarantee
Trustee has occurred and is continuing, the Guarantee Trustee shall enforce
this
Guarantee for the benefit of the Holders of the Capital Securities.
(c)
The
Guarantee Trustee, before the occurrence of any Event of Default and after
the
curing or waiving of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Guarantee, and no implied covenants shall be read into this Guarantee against
the Guarantee Trustee. In case an Event of Default has occurred (that has not
been cured or waived pursuant to Section 2.4(b)) and is actually known to a
Responsible Officer of the Guarantee Trustee, the Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Guarantee, and
use
the same degree of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of his or her
own
affairs.
(d)
No
provision of this Guarantee shall be construed to relieve the Guarantee Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(i)
prior
to
the occurrence of any Event of Default and after the curing or waiving of all
Events of Default that may have occurred:
(A)
the
duties and obligations of the Guarantee Trustee shall be determined solely
by
the express provisions of this Guarantee, and the Guarantee Trustee shall not
be
liable except for the performance of such duties and obligations as are
specifically set forth in this Guarantee, and no implied covenants or
obligations shall be read into this Guarantee against the Guarantee Trustee;
and
(B)
in
the
absence of bad faith on the part of the Guarantee Trustee, the Guarantee Trustee
may conclusively rely, as to the truth of the statements and the correctness
of
the opinions expressed therein, upon any certificates or opinions furnished
to
the Guarantee Trustee and conforming to the requirements of this Guarantee;
but
in the case of any such certificates or opinions furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to examine the same to
determine whether or not on their face they conform to the requirements of
this
Guarantee;
(ii)
the
Guarantee Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Guarantee Trustee, unless it shall be
proved that such Responsible Officer of the Guarantee Trustee or the Guarantee
Trustee was negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii)
the
Guarantee Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the written direction
of the Holders of not less than a Majority in liquidation amount of the Capital
Securities relating to the time, method and place of conducting any proceeding
for any remedy available to the Guarantee Trustee, or exercising any trust
or
power conferred upon the Guarantee Trustee under this Guarantee;
and
(iv)
no
provision of this Guarantee shall require the Guarantee Trustee to expend or
risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers, if the Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds is not reasonably assured to it under the
terms
of this Guarantee, or security and indemnity, reasonably satisfactory to the
Guarantee Trustee, against such risk or liability is not reasonably assured
to
it.
SECTION
2.2.
Certain Rights of the Guarantee Trustee
.
(a)
Subject
to the provisions of Section 2.1:
(i)
The
Guarantee Trustee may conclusively rely, and shall be fully protected in acting
or refraining from acting upon, any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or presented by
the
proper party or parties.
(ii)
Any
direction or act of the Guarantor contemplated by this Guarantee shall be
sufficiently evidenced by an Officer's Certificate.
(iii)
Whenever,
in the administration of this Guarantee, the Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking, suffering or
omitting any action hereunder, the Guarantee Trustee (unless other evidence
is
herein specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officer's Certificate of the Guarantor
which, upon receipt of such request, shall be promptly delivered by the
Guarantor.
(iv)
The
Guarantee Trustee shall have no duty to see to any recording, filing or
registration of any instrument or other writing (or any rerecording, refiling
or
reregistration thereof).
(v)
The
Guarantee Trustee may consult with counsel of its selection, and the advice
or
opinion of such counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with such advice or opinion.
Such counsel may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees. The Guarantee Trustee shall have the right at
any
time to seek instructions concerning the administration of this Guarantee from
any court of competent jurisdiction.
(vi)
The
Guarantee Trustee shall be under no obligation to exercise any of the rights
or
powers vested in it by this Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Guarantee Trustee such security
and indemnity, reasonably satisfactory to the Guarantee Trustee, against the
costs, expenses (including attorneys' fees and expenses and the expenses of
the
Guarantee Trustee's agents, nominees or custodians) and liabilities that might
be incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee;
provided
,
however
,
that
nothing contained in this Section 2.2(a)(vi) shall be taken to relieve the
Guarantee Trustee, upon the occurrence of an Event of Default, of its obligation
to exercise the rights and powers vested in it by this Guarantee.
(vii)
The
Guarantee Trustee shall not be bound to make any investigation into the facts
or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other
evidence of indebtedness or other paper or document, but the Guarantee Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit.
(viii)
The
Guarantee Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents, nominees,
custodians or attorneys, and the Guarantee 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.
(ix)
Any
action taken by the Guarantee Trustee or its agents hereunder shall bind the
Holders of the Capital Securities, and the signature of the Guarantee Trustee
or
its agents alone shall be sufficient and effective to perform any such action.
No third party shall be required to inquire as to the authority of the Guarantee
Trustee to so act or as to its compliance with any of the terms and provisions
of this Guarantee, both of which shall be conclusively evidenced by the
Guarantee Trustee's or its agent's taking such action.
(x)
Whenever
in the administration of this Guarantee the Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or right
or taking any other action hereunder, the Guarantee Trustee (A) may request
instructions from the Holders of a Majority in liquidation amount of the Capital
Securities, (B) may refrain from enforcing such remedy or right or taking such
other action until such instructions are received and (C) shall be protected
in
conclusively relying on or acting in accordance with such
instructions.
(xi)
The
Guarantee Trustee shall not be liable for any action taken, suffered, or omitted
to be taken by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Guarantee.
(b)
No
provision of this Guarantee shall be deemed to impose any duty or obligation
on
the Guarantee Trustee to perform any act or acts or exercise any right, power,
duty or obligation conferred or imposed on it, in any jurisdiction in which
it
shall be illegal or in which the Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law to perform any such act or acts
or
to exercise any such right, power, duty or obligation. No permissive power
or
authority available to the Guarantee Trustee shall be construed to be a
duty.
SECTION
2.3.
Not Responsible for Recitals or Issuance of Guarantee
.
The
recitals contained in this Guarantee shall be taken as the statements of the
Guarantor, and the Guarantee Trustee does not assume any responsibility for
their correctness. The Guarantee Trustee makes no representation as to the
validity or sufficiency of this Guarantee.
SECTION
2.4.
Events of Default; Waiver
.
(a)
An
Event
of Default under this Guarantee will occur upon the failure of the Guarantor
to
perform any of its payment or other obligations hereunder.
(b)
The
Holders of a Majority in liquidation amount of the Capital Securities may,
voting or consenting as a class, on behalf of the Holders of all of the Capital
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and shall be deemed
to
have been cured, for every purpose of this Guarantee, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION
2.5.
Events of Default; Notice
.
(a)
The
Guarantee Trustee shall, within 90 days after the occurrence of an Event of
Default, transmit by mail, first class postage prepaid, to the Holders of the
Capital Securities, notices of all Events of Default actually known to a
Responsible Officer of the Guarantee Trustee, unless such defaults have been
cured before the giving of such notice;
provided
,
however
,
that
the Guarantee Trustee shall be protected in withholding such notice if and
so
long as a Responsible Officer of the Guarantee Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders of the
Capital Securities.
(b)
The
Guarantee Trustee shall not be charged with knowledge of any Event of Default
unless the Guarantee Trustee shall have received written notice thereof from
the
Guarantor or a Holder of the Capital Securities, or a Responsible Officer of
the
Guarantee Trustee charged with the administration of this Guarantee shall have
actual knowledge thereof.
ARTICLE
III
THE
GUARANTEE TRUSTEE
SECTION
3.1.
The Guarantee Trustee; Eligibility
.
(a)
There
shall at all times be a Guarantee Trustee which shall:
(i)
not
be an
Affiliate of the Guarantor; and
(ii)
be
a
corporation or national association organized and doing business under the
laws
of the United States of America or any state or territory thereof or of the
District of Columbia, or Person authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least Fifty Million
U.S. Dollars ($50,000,000), and subject to supervision or examination by
federal, state, territorial or District of Columbia authority. If such
corporation or national association publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or examining
authority referred to above, then, for the purposes of this Section 3.1(a)(ii),
the combined capital and surplus of such corporation or national association
shall be deemed to be its combined capital and surplus as set forth in its
most
recent report of condition so published.
(b)
If
at any
time the Guarantee Trustee shall cease to be eligible to so act under Section
3.1(a), the Guarantee Trustee shall immediately resign in the manner and with
the effect set forth in Section 3.2(c).
(c)
If
the
Guarantee Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee
shall either eliminate such interest or resign to the extent and in the manner
provided by, and subject to, this Guarantee.
SECTION
3.2.
Appointment, Removal and Resignation of the Guarantee
Trustee
.
(a)
Subject
to Section 3.2(b), the Guarantee Trustee may be appointed or removed without
cause at any time by the Guarantor except during an Event of
Default.
(b)
The
Guarantee Trustee shall not be removed in accordance with Section 3.2(a) until
a
Successor Guarantee Trustee has been appointed and has accepted such appointment
by written instrument executed by such Successor Guarantee Trustee and delivered
to the Guarantor.
(c)
The
Guarantee Trustee appointed to office shall hold office until a Successor
Guarantee Trustee shall have been appointed or until its removal or resignation.
The Guarantee Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by the Guarantee
Trustee and delivered to the Guarantor, which resignation shall not take effect
until a Successor Guarantee Trustee has been appointed and has accepted such
appointment by an instrument in writing executed by such Successor Guarantee
Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d)
If
no
Successor Guarantee Trustee shall have been appointed and accepted appointment
as provided in this Section 3.2 within 60 days after delivery of an instrument
of removal or resignation, the Guarantee Trustee resigning or being removed
may
petition any court of competent jurisdiction for appointment of a Successor
Guarantee Trustee. Such court may thereupon, after prescribing such notice,
if
any, as it may deem proper, appoint a Successor Guarantee Trustee.
(e)
No
Guarantee Trustee shall be liable for the acts or omissions to act of any
Successor Guarantee Trustee.
(f)
Upon
termination of this Guarantee or removal or resignation of the Guarantee Trustee
pursuant to this Section 3.2, the Guarantor shall pay to the Guarantee Trustee
all amounts owing to the Guarantee Trustee under Sections 7.2 and 7.3 accrued
to
the date of such termination, removal or resignation.
(g)
Any
Person into which the Guarantee Trustee may be merged or converted or with
which
it may be consolidated, or any Person resulting from any merger, conversion
or
consolidation to which the Guarantee Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Guarantee Trustee hereunder without
the
execution or filing of any paper or any further act on the part of any of the
parties hereto;
provided
,
that
such Person shall be otherwise eligible and qualified under this
Article.
ARTICLE
IV
GUARANTEE
SECTION
4.1.
Guarantee
.
(a)
The
Guarantor irrevocably and unconditionally agrees to pay in full to the Holders
the Guarantee Payments (without duplication of amounts theretofore paid by
the
Issuer), as and when due, regardless of any defense (except as defense of
payment by the Issuer), right of set-off or counterclaim that the Issuer may
have or assert. The Guarantor's obligation to make a Guarantee Payment may
be
satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Issuer to pay such amounts to the
Holders.
(b)
The
Guarantor hereby also agrees to assume any and all Obligations of the Issuer
and
in the event any such Obligation is not so assumed, subject to the terms and
conditions hereof, the Guarantor hereby irrevocably and unconditionally
guarantees to each Beneficiary the full payment, when and as due, of any and
all
Obligations to such Beneficiaries. This Guarantee is intended to be for the
Beneficiaries who have received notice hereof.
SECTION
4.2.
Waiver of Notice and Demand
.
The
Guarantor hereby waives notice of acceptance of this Guarantee and of any
liability to which it applies or may apply, presentment, demand for payment,
any
right to require a proceeding first against the Issuer or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and
demands.
SECTION
4.3.
Obligations Not Affected
.
The
obligations, covenants, agreements and duties of the Guarantor under this
Guarantee shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a)
the
release or waiver, by operation of law or otherwise, of the performance or
observance by the Issuer of any express or implied agreement, covenant, term
or
condition relating to the Capital Securities to be performed or observed by
the
Issuer;
(b)
the
extension of time for the payment by the Issuer of all or any portion of the
Distributions, Redemption Price, Special Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Capital Securities
or the extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Capital Securities (other than an
extension of time for the payment of the Distributions, Redemption Price,
Special Redemption Price, Liquidation Distribution or other sums payable that
results from the extension of any interest payment period on the Debentures
or
any extension of the maturity date of the Debentures permitted by the
Indenture);
(c)
any
failure, omission, delay or lack of diligence on the part of the Holders to
enforce, assert or exercise any right, privilege, power or remedy conferred
on
the Holders pursuant to the terms of the Capital Securities, or any action
on
the part of the Issuer granting indulgence or extension of any
kind;
(d)
the
voluntary or involuntary liquidation, dissolution, sale of any collateral,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e)
any
invalidity of, or defect or deficiency in, the Capital Securities;
(f)
the
settlement or compromise of any obligation guaranteed hereby or hereby incurred;
or
(g)
any
other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a guarantor, it being the intent of this Section 4.3
that the obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There
shall be no obligation of the Holders to give notice to, or obtain consent
of,
the Guarantor with respect to the happening of any of the
foregoing.
SECTION
4.4.
Rights of Holders
.
(a)
The
Holders of a Majority in liquidation amount of the Capital Securities have
the
right to direct the time, method and place of conducting any proceeding for
any
remedy available to the Guarantee Trustee in respect of this Guarantee or to
direct the exercise of any trust or power conferred upon the Guarantee Trustee
under this Guarantee;
provided
,
however
,
that
(subject to Sections 2.1 and 2.2) the Guarantee Trustee shall have the right
to
decline to follow any such direction if the Guarantee Trustee shall determine
that the actions so directed would be unjustly prejudicial to the Holders not
taking part in such direction or if the Guarantee Trustee being advised by
legal
counsel determines that the action or proceeding so directed may not lawfully
be
taken or if the Guarantee Trustee in good faith by its board of directors or
trustees, executive committee or a trust committee of directors or trustees
and/or Responsible Officers shall determine that the action or proceeding so
directed would involve the Guarantee Trustee in personal liability.
(b)
Any
Holder of Capital Securities may institute a legal proceeding directly against
the Guarantor to enforce the Guarantee Trustee's rights under this Guarantee,
without first instituting a legal proceeding against the Issuer, the Guarantee
Trustee or any other Person. The Guarantor waives any right or remedy to require
that any such action be brought first against the Issuer, the Guarantee Trustee
or any other Person before so proceeding directly against the
Guarantor.
SECTION
4.5.
Guarantee of Payment
.
This
Guarantee creates a guarantee of payment and not of collection.
SECTION
4.6.
Subrogation
.
The
Guarantor shall be subrogated to all (if any) rights of the Holders of Capital
Securities against the Issuer in respect of any amounts paid to such Holders
by
the Guarantor under this Guarantee;
provided
,
however
,
that
the Guarantor shall not (except to the extent required by applicable provisions
of law) be entitled to enforce or exercise any right that it may acquire by
way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Guarantee, if, after giving effect to any
such
payment, any amounts are due and unpaid under this Guarantee. If any amount
shall be paid to the Guarantor in violation of the preceding sentence, the
Guarantor agrees to hold such amount in trust for the Holders and to pay over
such amount to the Holders.
SECTION
4.7.
Independent Obligations
.
The
Guarantor acknowledges that its obligations hereunder are independent of the
obligations of the Issuer with respect to the Capital Securities and that the
Guarantor shall be liable as principal and as debtor hereunder to make Guarantee
Payments pursuant to the terms of this Guarantee notwithstanding the occurrence
of any event referred to in subsections (a) through (g), inclusive, of Section
4.3 hereof.
SECTION
4.8.
Enforcement
.
A
Beneficiary may enforce the Obligations of the Guarantor contained in
Section 4.1(b) directly against the Guarantor, and the Guarantor waives any
right or remedy to require that any action be brought against the Issuer or
any
other person or entity before proceeding against the Guarantor.
The
Guarantor shall be subrogated to all rights (if any) of any Beneficiary against
the Issuer in respect of any amounts paid to the Beneficiaries by the Guarantor
under this Guarantee;
provided
,
however
,
that
the Guarantor shall not (except to the extent required by applicable provisions
of law) be entitled to enforce or exercise any rights that it may acquire by
way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Guarantee, if, after giving effect to such
payment, any amounts are due and unpaid under this Guarantee.
ARTICLE
V
LIMITATION
OF TRANSACTIONS; SUBORDINATION
SECTION
5.1.
Limitation of Transactions
.
So
long
as any Capital Securities remain outstanding, if (a) there shall have occurred
and be continuing an Event of Default or (b) the Guarantor shall have selected
an Extension Period as provided in the Declaration and such period, or any
extension thereof, shall have commenced and be continuing, then the Guarantor
may not (x) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of the
Guarantor's capital stock or (y) make any payment of principal of or interest
or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Guarantor that rank
pari
passu
in all
respects with or junior in interest to the Debentures (other than (i) payments
under this Guarantee, (ii) repurchases, redemptions or other acquisitions of
shares of capital stock of the Guarantor (A) in connection with any employment
contract, benefit plan or other similar arrangement with or for the benefit
of
one or more employees, officers, directors, or consultants, (B) in connection
with a dividend reinvestment or stockholder stock purchase plan or (C) in
connection with the issuance of capital stock of the Guarantor (or securities
convertible into or exercisable for such capital stock), as consideration in
an
acquisition transaction entered into prior to the occurrence of the Event of
Default or the applicable Extension Period, (iii) as a result of any exchange,
reclassification, combination or conversion of any class or series of the
Guarantor's capital stock (or any capital stock of a subsidiary of the
Guarantor) for any class or series of the Guarantor's capital stock or of any
class or series of the Guarantor's indebtedness for any class or series of
the
Guarantor's capital stock, (iv) the purchase of fractional interests in shares
of the Guarantor's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged,
(v) any declaration of a dividend in connection with any stockholder's rights
plan, or the issuance of rights, stock or other property under any stockholder's
rights plan, or the redemption or repurchase of rights pursuant thereto, or
(vi)
any dividend in the form of stock, warrants, options or other rights where
the
dividend stock or the stock issuable upon exercise of such warrants, options
or
other rights is the same stock as that on which the dividend is being paid
or
ranks
pari
passu
with or
junior to such stock).
SECTION
5.2.
Ranking
.
This
Guarantee will constitute an unsecured obligation of the Guarantor and will
rank
subordinate and junior in right of payment to all present and future Senior
Indebtedness (as defined in the Indenture) of the Guarantor. By their acceptance
thereof, each Holder of Capital Securities agrees to the foregoing provisions
of
this Guarantee and the other terms set forth herein.
The
right
of the Guarantor to participate in any distribution of assets of any of its
subsidiaries upon any such subsidiary's liquidation or reorganization or
otherwise is subject to the prior claims of creditors of that subsidiary, except
to the extent the Guarantor may itself be recognized as a creditor of that
subsidiary. Accordingly, the Guarantor's obligations under this Guarantee will
be effectively subordinated to all existing and future liabilities of the
Guarantor's subsidiaries, and claimants should look only to the assets of the
Guarantor for payments thereunder. This Guarantee does not limit the incurrence
or issuance of other secured or unsecured debt of the Guarantor, including
Senior Indebtedness of the Guarantor, under any indenture or agreement that
the
Guarantor may enter into in the future or otherwise.
ARTICLE
VI
TERMINATION
SECTION
6.1.
Termination
.
This
Guarantee shall terminate as to the Capital Securities (i) upon full payment
of
the Redemption Price or the Special Redemption Price, as the case may be, of
all
Capital Securities then outstanding, (ii) upon the distribution of all of the
Debentures to the Holders of all of the Capital Securities or (iii) upon full
payment of the amounts payable in accordance with the Declaration upon
dissolution of the Issuer. This Guarantee will continue to be effective or
will
be reinstated, as the case may be, if at any time any Holder of Capital
Securities must restore payment of any sums paid under the Capital Securities
or
under this Guarantee.
ARTICLE
VII
INDEMNIFICATION
SECTION
7.1.
Exculpation
.
(a)
No
Indemnified Person shall be liable, responsible or accountable in damages or
otherwise to the Guarantor or any Covered Person for any loss, damage or claim
incurred by reason of any act or omission of such Indemnified Person in good
faith in accordance with this Guarantee and in a manner that such Indemnified
Person reasonably believed to be within the scope of the authority conferred
on
such Indemnified Person by this Guarantee or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by reason
of
such Indemnified Person's negligence or willful misconduct with respect to
such
acts or omissions.
(b)
An
Indemnified Person shall be fully protected in relying in good faith upon the
records of the Issuer or the Guarantor and upon such information, opinions,
reports or statements presented to the Issuer or the Guarantor by any Person
as
to matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who, if selected by such
Indemnified Person, has been selected with reasonable care by such Indemnified
Person, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Capital Securities might properly be paid.
SECTION
7.2.
Indemnification
.
(a)
The
Guarantor agrees to indemnify each Indemnified Person for, and to hold each
Indemnified Person harmless against, any and all loss, liability, damage, claim
or expense incurred without negligence or willful misconduct on the part of
the
Indemnified Person, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including but not limited
to
the costs and expenses (including reasonable legal fees and expenses) of the
Indemnified Person defending itself against, or investigating, any claim or
liability in connection with the exercise or performance of any of the
Indemnified Person's powers or duties hereunder. The obligation to indemnify
as
set forth in this Section 7.2 shall survive the resignation or removal of the
Guarantee Trustee and the termination of this Guarantee.
(b)
Promptly
after receipt by an Indemnified Person under this Section 7.2 of notice of
the
commencement of any action, such Indemnified Person will, if a claim in respect
thereof is to be made against the Guarantor under this Section 7.2, notify
the
Guarantor in writing of the commencement thereof; but the failure so to notify
the Guarantor (i) will not relieve the Guarantor from liability under paragraph
(a) above unless and to the extent that the Guarantor did not otherwise learn
of
such action and such failure results in the forfeiture by the Guarantor of
substantial rights and defenses and (ii) will not, in any event, relieve the
Guarantor from any obligations to any Indemnified Person other than the
indemnification obligation provided in paragraph (a) above. The Guarantor shall
be entitled to appoint counsel of the Guarantor's choice at the Guarantor's
expense to represent the Indemnified Person in any action for which
indemnification is sought (in which case the Guarantor shall not thereafter
be
responsible for the fees and expenses of any separate counsel retained by the
Indemnified Person or Persons except as set forth below);
provided
,
however
,
that
such counsel shall be satisfactory to the Indemnified Person. Notwithstanding
the Guarantor's election to appoint counsel to represent the Indemnified Person
in any action, the Indemnified Person shall have the right to employ separate
counsel (including local counsel), and the Guarantor shall bear the reasonable
fees, costs and expenses of such separate counsel (and local counsel), if (i)
the use of counsel chosen by the Guarantor to represent the Indemnified Person
would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
Indemnified Person and the Guarantor and the Indemnified Person shall have
reasonably concluded that there may be legal defenses available to it and/or
other Indemnified Persons which are different from or additional to those
available to the Guarantor, (iii) the Guarantor shall not have employed counsel
satisfactory to the Indemnified Person to represent the Indemnified Person
within a reasonable time after notice of the institution of such action or
(iv)
the Guarantor shall authorize the Indemnified Person to employ separate counsel
at the expense of the Guarantor. The Guarantor will not, without the prior
written consent of the Indemnified Persons, settle or compromise or consent
to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the Indemnified Persons are actual
or
potential parties to such claim or action) unless such settlement, compromise
or
consent includes an unconditional release of each Indemnified Person from all
liability arising out of such claim, action, suit or proceeding.
SECTION
7.3.
Compensation; Reimbursement of Expenses
.
Other
than as provided in the Fee Agreement of even date herewith between the
Guarantor, Cohen & Company and the Guarantee Trustee, the Guarantor
agrees:
(a)
to
pay to
the Guarantee Trustee from time to time such compensation for all services
rendered by it hereunder as the parties shall agree to from time to time (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust); and
(b)
except
as
otherwise expressly provided herein, to reimburse the Guarantee Trustee upon
request for all reasonable expenses, disbursements and advances incurred or
made
by it in accordance with any provision of this Guarantee (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or willful misconduct.
The
provisions of this Section 7.3 shall survive the resignation or removal of
the
Guarantee Trustee and the termination of this Guarantee.
ARTICLE
VIII
MISCELLANEOUS
SECTION
8.1.
Successors and Assigns
.
All
guarantees and agreements contained in this Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Capital Securities then outstanding.
Except in connection with any merger or consolidation of the Guarantor with
or
into another entity or any sale, transfer or lease of the Guarantor's assets
or
capital stock to another entity, in each case to the extent permitted under
the
Indenture, the Guarantor may not assign its rights or delegate its obligations
under this Guarantee without the prior approval of the Holders of not less
than
a Majority in liquidation amount of the Capital Securities.
SECTION
8.2.
Amendments
.
Except
with respect to any changes that do not adversely affect the rights of Holders
of the Capital Securities in any material respect (in which case no consent
of
Holders will be required), this Guarantee may be amended only with the prior
approval of the Holders of not less than a Majority in liquidation amount of
the
Capital Securities. The provisions of the Declaration with respect to amendments
thereof shall apply equally with respect to amendments of the
Guarantee.
SECTION
8.3.
Notices
.
All
notices provided for in this Guarantee shall be in writing, duly signed by
the
party giving such notice, and shall be delivered, telecopied or mailed by first
class mail, as follows:
(a)
If
given
to the Guarantee Trustee, at the Guarantee Trustee's mailing address set forth
below (or such other address as the Guarantee Trustee may give notice of to
the
Holders of the Capital Securities):
LaSalle
Bank National Association
135
S.
LaSalle Street, Suite 1511
Chicago,
Illinois 60603
Attention:
CDO Trust Services Group
Wilshire
Statutory Trust IV
Telecopy:
(312) 904-0524
Telephone:
(312) 904-0283
(b)
If
given
to the Guarantor, at the Guarantor's mailing address set forth below (or such
other address as the Guarantor may give notice of to the Holders of the Capital
Securities and to the Guarantee Trustee):
Wilshire
Bancorp, Inc.
3200
Wilshire Boulevard, Suite 1400
Los
Angeles, California 90010
Attention:
Elaine S. Jeon
Telecopy:
(213) 427-6584
Telephone:
(213) 427-6581
(c)
If
given
to any Holder of the Capital Securities, at the address set forth on the books
and records of the Issuer.
All
such
notices shall be deemed to have been given when received in person, telecopied
with receipt confirmed, or mailed by first class mail, postage prepaid, except
that if a notice or other document is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such notice or other
document shall be deemed to have been delivered on the date of such refusal
or
inability to deliver.
SECTION
8.4.
Benefit
.
This
Guarantee is solely for the benefit of the Holders of the Capital Securities
and, subject to Section 2.1(a), is not separately transferable from the Capital
Securities.
SECTION
8.5.
Governing Law
.
THIS
GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).
SECTION
8.6.
Counterparts
.
This
Guarantee may contain more than one counterpart of the signature page and this
Guarantee may be executed by the affixing of the signature of the Guarantor
and
the Guarantee Trustee to any of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have
the
same force and effect as though all of the signers had signed a single signature
page.
THIS
GUARANTEE is executed as of the day and year first above written.
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LASALLE
BANK NATIONAL
ASSOCIATION,
as Guarantee Trustee
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By:
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Name:
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Title:
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