EXHIBIT 4.3
FIRST SUPPLEMENTAL INDENTURE
between
PRIVATEBANCORP, INC.
and
WILMINGTON TRUST COMPANY
Dated
as of May 22, 2008
Supplement
to Junior Subordinated Indenture,
dated
as of May 22, 2008
|
ARTICLE I DEFINITIONS
|
1
|
|
Section
1.1
|
Definitions
|
1
|
|
ARTICLE II GENERAL
TERMS AND CONDITIONS OF THE DEBENTURES
|
7
|
|
Section
2.1
|
Designation,
Principal Amount and Authorized Denomination
|
7
|
|
Section
2.2
|
Repayment
|
8
|
|
Section
2.3
|
Form
|
8
|
|
Section
2.4
|
Rate
of Interest; Interest Payment Date
|
8
|
|
Section
2.5
|
Interest
Deferral
|
8
|
|
Section
2.6
|
Dividend
and Other Payment Stoppages during Deferral
Period
|
9
|
|
Section
2.7
|
Alternative
Payment Mechanism
|
11
|
|
Section
2.8
|
Redemption
of the Debentures
|
13
|
|
Section
2.9
|
Events
of Default
|
13
|
|
Section
2.10
|
Securities
Registrar; Paying Agent; Delegation of Trustee
Duties
|
13
|
|
Section
2.11
|
Obligation
to Seek Shareholder Approval to Increase Authorized
Shares
|
13
|
|
Section
2.12
|
Limitation
on Claims in the Event of Bankruptcy, Insolvency or
Receivership
|
14
|
|
Section
2.13
|
Amendment
|
14
|
|
ARTICLE III REPAYMENT
OF DEBENTURES
|
14
|
|
Section
3.1
|
Deposit
of Repayment Amount
|
14
|
|
Section
3.2
|
Repayment
of Debentures
|
14
|
|
ARTICLE IV EXPENSES
|
14
|
|
Section
4.1
|
Expenses
|
14
|
|
ARTICLE V FORM
OF Debenture
|
15
|
|
Section
5.1
|
Form
of Debentures
|
15
|
|
ARTICLE VI ORIGINAL
ISSUE OF DEBENTURES
|
22
|
|
Section
6.1
|
Original
Issue of Debentures
|
22
|
|
Section
6.2
|
Calculation
of Original Issue Discount
|
22
|
|
ARTICLE VII SUBORDINATION
|
22
|
|
Section
7.1
|
Senior
Debt
|
22
|
|
Section
7.2
|
Compliance
with Federal Reserve Rules
|
22
|
|
ARTICLE VIII MISCELLANEOUS
|
23
|
|
Section
8.1
|
Effectiveness
|
23
|
|
Section
8.2
|
Successors
and Assigns
|
23
|
|
Section
8.3
|
Further
Assurances
|
23
|
|
Section
8.4
|
Effect
of Recitals
|
23
|
|
Section
8.5
|
Ratification
of Indenture
|
23
|
|
Section
8.6
|
Governing
Law
|
23
|
FIRST SUPPLEMENTAL INDENTURE , dated as of May 22,
2008, between PRIVATEBANCORP, INC. ,
a Delaware corporation (the “ Company ”), and
WILMINGTON TRUST
COMPANY , as trustee (hereinafter called the “
Trustee
”).
RECITALS OF THE COMPANY
The
Company and the Trustee entered into a Junior Subordinated
Indenture, dated as of May 22, 2008 (the “
Indenture
”).
PrivateBancorp
Capital Trust IV, a Delaware statutory trust (the “
Trust
”), has offered to the public its Preferred Securities
known as 10.00% Trust Preferred Securities (the “
Trust
Preferred Securities ”), which are beneficial
interests in the Trust, and proposes to invest the proceeds
from such offering, together with the proceeds of the issuance
and sale by the Trust to the Company of its common securities
(the “ Trust Common
Securities ” and, together with the Trust
Preferred Securities, the “ Trust Securities
”), in the Debentures (as defined herein).
Pursuant
to Sections 2.1 and 3.1 of the Indenture, the Company
desires to provide for the establishment of a new series of
Securities under the Indenture, the form and substance of such
Securities and the terms, provisions and conditions thereof to
be set forth as provided in the Indenture and this First
Supplemental Indenture.
The
Company has delivered to the Trustee an Opinion of Counsel and
an Officers’ Certificate pursuant to Section 9.3 of
the Indenture to the effect that all conditions precedent
provided for in the Indenture to the Trustee’s execution
and delivery of this First Supplemental Indenture have been
complied with.
The
Company has requested that the Trustee execute and deliver
this First Supplemental Indenture and satisfy all requirements
necessary to make this First Supplemental Indenture a valid
instrument in accordance with its terms, and to make the
Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company
and all acts and things necessary have been done and performed
to make this First Supplemental Indenture enforceable in
accordance with its terms, and the execution and delivery of
this First Supplemental Indenture has been duly authorized in
all respects.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH
: For and in consideration of the premises and the purchase of the
Debentures by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of
the Debentures, as follows:
ARTICLE I
DEFINITIONS
Section 1.1
Definitions
. For all purposes of this First Supplemental Indenture,
except as otherwise expressly provided or unless the context
otherwise requires:
(a) Terms
defined in the Indenture or the Declaration of Trust (as
defined herein) have the same meaning when used in this First
Supplemental Indenture unless otherwise specified
herein.
(b) The
terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the
singular.
(c) The
words “herein,” “hereof” and
“hereunder” and other words of similar import
refer to this First Supplemental Indenture as a whole and not
to any particular Article, Section or other subdivision,
and any reference to an Article, Section or other
subdivision refers to an Article, Section or other
subdivision of this First Supplemental Indenture.
(d) Any
reference herein to “interest” shall include any
Additional Interest.
“
Additional
Interest ” means the interest, if any, that shall
accrue on any interest on the Securities of any series the
payment of which has not been made on the applicable Interest
Payment Date and that shall accrue at the rate per annum
specified or determined as specified in such
Security.
“
Administrative
Trustee ” has the meaning specified in the
Declaration of Trust.
“
APM
Period ” means, with respect to any Deferral
Period, the period commencing on the earlier of (i) the
first Interest Payment Date following the commencement of such
Deferral Period on which the Company pays any current interest
on the Debentures from any source of funds or (ii) the
fifth anniversary of the commencement of the Deferral Period,
and ending on the next Interest Payment Date on which the
Company has raised an amount of Eligible Proceeds at least
equal to the aggregate amount of accrued and unpaid deferred
interest on the Debentures.
“
Bankruptcy
Event ” has the meaning specified in the
Declaration of Trust.
“
Business
Combination ” means a merger, consolidation,
amalgamation or conveyance, transfer or lease of assets
substantially as an entirety by one Person to any other
Person.
“
Capital
Treatment Event ” means the Company’s
reasonable determination, after consultation with the Federal
Reserve and outside counsel experienced in such matters, that,
as a result of the occurrence of any amendment to, or change
(including any announced prospective change) in, the laws (or
any rules or regulations thereunder) of the United States or
any political subdivision thereof or therein, or as a result
of any official or administrative pronouncement or action or
judicial 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 issuance of the Trust Preferred Securities, there is
more than an insubstantial risk that the Company will not be
entitled to treat an amount equal to the aggregate liquidation
amount of the Trust Preferred Securities as “Tier 1
capital” (or the then equivalent thereof) for purposes
of the capital adequacy guidelines of the Federal Reserve, as
then in effect and applicable to the Company.
“
Commercially
Reasonable Efforts ” to sell Qualifying APM
Securities means commercially reasonable efforts to complete
the offer and sale of Qualifying APM Securities to Persons
other than Subsidiaries in public offerings or private
placements. The Company shall not be considered to
have made Commercially Reasonable Efforts to effect a sale of
Qualifying APM Securities if it determines not to pursue or
complete such sale due to pricing, coupon, dividend rate or
dilution considerations.
“
Common Equity
Issuance Cap ” has the meaning specified in
Section 2.7(a)(i).
“
Common
Stock ” means the common stock of the Company
(including Common Stock issued pursuant to the Company’s
dividend reinvestment plan and employee benefit
plans).
“
Company ”
has the meaning specified in the Recitals.
“
Covered
Debt ” has the meaning specified in the
Replacement Capital Covenant.
“
Creditor ”
has the meaning specified in Section 4.1.
“
Current Stock
Market Price ” means, with respect to Common
Stock on any date, (i) the closing sale price per share
(or if no closing sale price is reported, the average of the
bid and ask prices or, if more than one in either case, the
average of the average bid and the average ask prices) on that
date as reported in composite transactions by the Nasdaq
Global Select Market, (ii) if Common Stock is not then
listed on the Nasdaq Global Select Market, as reported by the
principal U.S. securities exchange on which Common Stock is
traded or quoted on the relevant date, (iii) if Common
Stock is not listed on any U.S. securities exchange on the
relevant date, the last quoted bid price for Common Stock in
the over-the-counter market on the relevant date as reported
by the OTC Bulletin Board, Pink Sheets LLC or a similar
organization, or (iv) if Common Stock is not so quoted,
the average of the mid-point of the last bid and ask prices
for Common Stock on the relevant date from each of at least
three nationally recognized independent investment banking
firms selected by the Company for this purpose.
“
Debentures ”
has the meaning set forth in Section 2.1
hereof.
“
Declaration
of Trust ” means the Amended and Restated
Declaration of Trust, dated as of May 22, 2008, among the
Company, as Sponsor of the Trust, Wilmington Trust Company, as
the Property Trustee, Wilmington Trust Company, as the
Delaware Trustee, and the Administrative
Trustees.
“
Deferral
Period(s) ” means the period commencing on an
Interest Payment Date with respect to which the Company elects
to defer interest pursuant to Section 2.5 and ending on
the earlier of (i) the tenth anniversary of that Interest
Payment Date and (ii) the next Interest Payment Date on
which the Company has paid the amount deferred, all deferred
amounts with respect to any subsequent period and all other
accrued and unpaid interest on the Debentures. The
settlement of all deferred interest pursuant to
Section 2.5(c), whether it occurs on an Interest Payment
Date or another date, will immediately terminate the Deferral
Period.
“
Delaware
Trustee ” has the meaning specified in the
Declaration of Trust.
“
Eligible
Proceeds ” means, for each relevant Interest
Payment Date, the net proceeds (after deducting
underwriters’ or placement agents’ fees,
commissions or discounts and other expenses relating to the
issuance or sale) the Company has received during the 180-day
period prior to such Interest Payment Date from the issuance
or sale of Qualifying APM Securities (excluding sales of
Qualifying Preferred Stock in excess of the Preferred Stock
Issuance Cap) to Persons that are not the Company’s
Subsidiaries.
“
First
Supplemental Indenture ” means this instrument as
originally executed or as it may from time to time be
supplemented or amended by one or more agreements supplemental
hereto entered into pursuant to the applicable provisions
hereof.
“
Guarantee
Agreement ” means the Guarantee Agreement between
the Company, as guarantor, and Wilmington Trust Company, as
guarantee trustee, dated as of May 22, 2008.
“
Indenture ”
has the meaning specified in the Recitals.
“
Intent-Based
Replacement Disclosure ” has the meaning
specified in the Replacement Capital Covenant.
“
Interest
Payment Dates ” shall have the meaning specified
in Section 2.4.
“
Interest
Period ” means the period beginning on and
including any Interest Payment Date (or, in the case of the
first Interest Payment Date, beginning on and including
May 22, 2008) and ending on but excluding the next
Interest Payment Date.
“
Liquidation
Amount ” has the meaning specified in the
Declaration of Trust.
“
Mandatory
Trigger Provision ” has the meaning specified in
the Replacement Capital Covenant.
“
Market
Disruption Event ” means, with respect to the
issuance or sale of Qualifying APM Securities pursuant to
Section 2.7, the occurrence or existence of any of the
following events or sets of circumstances:
(i) Trading
in securities generally (or in the Common Stock or Trust
Preferred Securities specifically) on the Nasdaq Global Select
Market or any other national securities exchange or in the
over-the-counter market, on which Common Stock and/or Trust
Preferred Securities are then listed or traded, shall have
been suspended or the settlement of such trading generally
shall have been materially disrupted or minimum prices shall
have been established on any such exchange or market by the
United States Securities and Exchange Commission, by the
relevant exchange or by any other regulatory body or
governmental body having jurisdiction, and the establishment
of such minimum prices materially disrupts or otherwise has a
material adverse effect on trading in, or the issuance and
sale of, Qualifying APM Securities;
(ii) The
Company would be required to obtain the consent or approval of
a regulatory body (including, without limitation, any
securities exchange but excluding the Federal Reserve) or
governmental authority to issue or sell Qualifying APM
Securities pursuant to the alternative payment mechanism
described in Section 2.7, and such consent or approval
has not yet been obtained notwithstanding the Company’s
commercially reasonable efforts to obtain such consent or
approval;
(iii) A
banking moratorium shall have been declared by the federal or
state authorities of the United States and such disruption
materially disrupts or otherwise has a material adverse effect
on trading in, or the issuance or sale of, the Qualifying APM
Securities;
(iv) A
material disruption shall have occurred in commercial banking
or securities settlement or clearance services in the United
States and such disruption materially disrupts or otherwise
has a material adverse effect on trading in, or the issuance
or sale of, the Qualifying APM Securities;
(v) The
United States shall have become engaged in hostilities, there
shall have been an escalation in hostilities involving the
United States, there shall have been a declaration of a
national emergency or war by the United States or there shall
have occurred any other national or international calamity or
crisis such that market trading in, or the issuance and sale
of, Qualifying APM Securities has been materially
disrupted;
(vi) There
shall have occurred such a material adverse change in general
domestic or international economic, political or financial
conditions, including without limitation as a result of
terrorist activities, such that market trading in Qualifying
APM Securities has been materially disrupted;
(vii) An
event occurs and is continuing as a result of which the
offering document for such offer and sale of Qualifying APM
Securities would, in the reasonable judgment of the Company,
after consultation with outside counsel experienced in such
matters, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and
either (x) the disclosure of that event at such time, in
the reasonable judgment of the Company, is not otherwise
required by law and would have a material adverse effect on
the business of the Company or (y) the disclosure relates
to a previously undisclosed proposed or pending material
business transaction, the disclosure of which would impede the
ability of the Company to consummate such transaction,
provided that no single suspension period contemplated by this
paragraph (viii) shall exceed 90 consecutive days and multiple
suspension periods contemplated by this paragraph (viii) shall
not exceed an aggregate of 180 days in any 360-day period;
or
(viii) the
Company reasonably believes, after consultation with outside
counsel experienced in such matters, that the offering
document for such offer and sale of Qualifying APM Securities
would not be in compliance with a rule or regulation of the
United States Securities and Exchange Commission (for reasons
other than those referred to in paragraph (viii) above), and
the Company is unable to comply with such rule or regulation
or such compliance is unduly burdensome, provided that no
single suspension period contemplated by this paragraph (ix)
shall exceed 90 consecutive days and multiple suspension
periods contemplated by this paragraph (ix) shall not exceed
an aggregate of 180 days in any 360-day period.
“
Maturity
Date ” has the meaning specified in
Section 2.2(a).
“
Parity
Securities ” means debt securities or guarantees
of the Company that rank upon liquidation on a parity with the
Debentures.
“
Paying
Agent ” means, with respect to the Debentures,
Wilmington Trust Company or any other Person authorized by the
Company to pay the principal of (and premium, if any) or
interest on the Debentures on behalf of the
Company.
“
Paying Agent
Office ” means the office of the applicable
Paying Agent at which at any particular time its corporate
agency business shall principally be administered in a Place
of Payment, which office at the date hereof in the case of
Wilmington Trust Company, in its capacity as Paying Agent with
respect to the Debentures under the Indenture, is located at
Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19801, Attention: Corporate Trust
Administration.
“
Permitted
Remedies ” has the meaning specified in the
Replacement Capital Covenant.
“
Preferred
Stock ” means the preferred stock of the
Company.
“
Preferred
Stock Issuance Cap ” has the meaning specified in
Section 2.7(a)(ii).
“
Prospectus ”
means the prospectus, dated May 8, 2008, of the Company
and the Trust relating to the offering of the Trust Preferred
Securities, as supplemented by the prospectus supplement,
dated May 8, 2008.
“
Qualifying
APM Securities ” means Common Stock, Qualifying
Preferred Stock and Qualifying Warrants, provided that the
Company may, without the consent of the holders of the Trust
Preferred Securities or the Debentures, amend the definition
of “Qualifying APM Securities” to eliminate Common
Stock or Qualifying Warrants (but not both) from this
definition if after the initial issue date for the Trust
Preferred Securities an accounting standard or interpretive
guidance of an existing accounting
standard
issued by an organization or regulator that has responsibility
for establishing or interpreting accounting standards in the
United States becomes effective such that there is more than
an insubstantial risk that failure to eliminate Common Stock
or Qualifying Warrants as a Qualifying APM Security would
result in a reduction in the Company’s earnings per
share as calculated for financial reporting
purposes.
“
Qualifying
Preferred Stock ” means non-cumulative perpetual
Preferred Stock of the Company that (i) contains no
remedies other than “Permitted Remedies” and
(ii)(a) is subject to “Intent-Based Replacement
Disclosure” and has a “Mandatory Trigger
Provision,” as such terms are defined in the Replacement
Capital Covenant, or (b) is subject to a Qualifying
Replacement Capital Covenant.
“
Qualifying
Replacement Capital Covenant ” has the meaning
specified in the Replacement Capital Covenant.
“
Qualifying
Warrants ” means any net share settled warrants
to purchase Common Stock that (1) have an exercise price
greater than the Current Stock Market Price of Common Stock
and (2) that the Company is not entitled to redeem for
cash and the holders of which are not entitled to require the
Company to purchase for cash in any
circumstances.
“
Quarterly
Interest Payment Date ” shall have the meaning
specified in Section 2.4.
“
Redemption
Date ” means the date at any time after the date
hereof on which the Company elects to redeem the
Securities.
“
Redemption
Price ” has the meaning specified in
Section 2.8(a).
“
Replacement
Capital Covenant ” means the Replacement Capital
Covenant, dated as of May 22, 2008, by the Company, as
the same may be amended or supplemented from time to time in
accordance with the provisions thereof and
Section 2.2(a)(ii) hereof.
“
Responsible
Officer ” means, with respect to Wilmington Trust
Company in its capacity as Paying Agent, any officer within
the Corporate Trust Department (or any successor department,
unit or division of Wilmington Trust Company) assigned to the
Paying Agent Office of Wilmington Trust Company, in its
capacity as Paying Agent, who has direct responsibility for
the administration of the Paying Agent functions of the
Indenture.
“
Securities
Registrar ” means, with respect to the
Debentures, Wilmington Trust Company, or any other firm
appointed by the Company, acting as securities registrar for
the Debentures.
“
Securities
Registrar Office ” means the office of the
applicable Securities Registrar at which at any particular
time its corporate agency business shall principally be
administered, which office at the date hereof in the case of
Wilmington Trust Company, in its capacity as Securities
Registrar under the Indenture, is located at Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19801,
Attention: Corporate Trust Administration.
“
Special
Record Date ” has the meaning specified in
Section 2.5(c).
“
Supervisory
Event ” shall commence upon the date the Company
has notified the Federal Reserve of its intention and
affirmatively requested Federal Reserve approval both
(1) to sell Qualifying APM Securities and (2) to
apply the net proceeds of such sale to pay deferred interest
on the Debentures, and the Company has been notified that the
Federal Reserve disapproves of either of these actions, even
though the Company has affirmatively requested
approval. A Supervisory Event shall cease on the
Business Day following the earlier to occur of (i) the
10th anniversary of the commencement of any
Deferral
Period or (ii) the day on which the Federal Reserve
notifies the Company in writing that it no longer disapproves
of the Company’s intention to both (1) issue or
sell Qualifying APM Securities and (2) apply the net
proceeds from such sale to pay deferred interest on the
Debentures.
“
Tax
Event ” means the receipt by the Company or the
Trust of an Opinion of Counsel experienced in such matters to
the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or
any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein,
or as a result of any official administrative pronouncement or
judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after the date of
issuance of the Trust Preferred 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 of Counsel, subject
to U.S. federal income tax with respect to income received or
accrued on the corresponding series of Securities issued by
the Company to the Trust, (ii) interest payable by the
Company on such corresponding series of Securities is not, or
within 90 days of the date of such Opinion of Counsel, will
not be, deductible by the Company, in whole or in part, for
U.S. federal income tax purposes or (iii) the Trust is,
or will be within 90 days of the date of such Opinion of
Counsel, subject to more than a de minimis amount of other
taxes, duties or other governmental charges.
“
Trading
Day ” means a day on which Common Stock is traded
on the Nasdaq Global Select Market, or if not then listed on
the Nasdaq Global Select Market, a day on which Common Stock
is traded or quoted on the principal U.S. securities exchange
on which it is listed or quoted, or if not then listed or
quoted on a U.S. securities exchange, a day on which Common
Stock is quoted in the over-the-counter market.
“
Trust
” has the meaning specified in the
Recitals.
“
Trust Common
Securities ” has the meaning specified in the
Recitals.
“
Trustee ”
has the meaning specified in the Recitals.
“
Trust
Preferred Securities ” has the meaning specified
in the Recitals.
“
Trust
Securities ” has the meaning specified in the
Recitals.
“
Underwriting
Agreement ” means the Underwriting Agreement,
dated as of May 15, 2008, among the Trust, the Company
and the underwriters named therein.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
Section 2.1
Designation,
Principal Amount and Authorized Denomination
. There is hereby authorized a series of Securities
designated the 10.00% Junior Subordinated Debentures due 2068 (the
“ Debentures ”),
the amount of which to be issued shall be as set forth in any
Company Order for the authentication and delivery of Debentures
pursuant to the Indenture. The denominations in which
Debentures shall be issuable is $25 principal amount and integral
multiples thereof. The maximum aggregate principal
amount of Debentures that may be authenticated and delivered under
the Indenture and this First Supplemental Indenture is $75,000,000
(except for Debentures authenticated and delivered upon
registration of transfer of, or exchange for, or in lieu of, other
Debentures pursuant to Section 3.4, 3.5, 3.6, 9.6, 11.6 or
14.3 of the Indenture).
Section 2.2
Repayment
.
(a)
Maturity
Date .
(i) The
principal amount of, and all accrued and unpaid interest on,
the Debentures shall be payable in full on June 15, 2068
or, if such day is not a Business Day, the following Business
Day (the “ Maturity Date
”) regardless of the amount of Qualifying APM Securities
the Company may have issued and sold by that
time.
(ii) The
Company shall not amend or supplement the Replacement Capital
Covenant to amend the definitions incorporated into this First
Supplement Indenture except with the consent of the holders of
a majority by principal amount of the debt that at the time of
the amendment or supplement is the covered debt (the “
Covered
Debt ”). Except as aforesaid, the
Company may amend or supplement the Replacement Capital
Covenant in accordance with its terms and without the consent
of the holders of the Covered Debt.
Section 2.3
Form
. The Debentures shall be issued in fully registered
definitive form without interest coupons. Principal of
and interest on the Debentures issued in definitive form will be
payable, the transfer of such Debentures will be registrable and
such Debentures will be exchangeable for Debentures bearing
identical terms and provisions and notices and demands to or upon
the Company in respect of the Debentures and the Indenture may be
served at the Corporate Trust Office of the Trustee, and the
Company appoints the Trustee as its agent for the foregoing
purposes, provided that payment of interest may be made at the
option of the Company by check mailed to the Holder at such address
as shall appear in the Securities Register or by wire transfer in
immediately available funds to the bank account number of the
Holder specified in writing by the Holder not less than 10 days
before the relevant Interest Payment Date and entered in the
Securities Register by the Securities Registrar, provided further
that if the Property Trustee, on behalf of the Trust, is the sole
Holder of the Debentures then payment of interest shall be made by
wire transfer in immediately available funds to a bank account
number specified by the Property Trustee. The Debentures
may be presented for registration of transfer or exchange at the
Securities Registrar Office.
Section 2.4
Rate
of Interest; Interest Payment Date .
(a)
Rate
of Interest . The Debentures shall bear
interest from and including May 22, 2008 at the annual
rate of 10.00%, computed on the basis of a 360-day year
comprised of twelve 30-day months. Accrued interest
that is not paid on the applicable Interest Payment Date,
including interest deferred pursuant to Section 2.5, will
bear Additional Interest, to the extent permitted by law, at
the same interest rate in effect on the Debentures, from the
relevant Interest Payment Date, compounded on each subsequent
Interest Payment Date.
(b)
Interest Payment
Date . Subject to the other provisions
hereof, interest on the Debentures shall be payable quarterly
in arrears on March 15, June 15, September 15
and December 15 of each year, commencing on
September 15, 2008 (each such date, a “ Quarterly Interest
Payment Date ” and collectively, the “
Interest
Payment Dates ”), or if any such day is not a
Business Day, the following Business Day (and no interest
shall accrue as a result of such postponement).
Section 2.5
Interest
Deferral .
(a)
Option to Defer
Interest Payments . The provisions of this
First Supplemental Indenture relating to deferral of interest
shall apply in lieu of, and not in addition to,
Section 3.11 of the Indenture.
(i) The
Company shall have the right at any time and from time to
time, to defer the payment of interest on the Debentures for
one or more consecutive Interest Periods up to 10 years,
provided that no Deferral Period shall extend beyond the
Maturity Date or the earlier repayment or redemption in full
of the Debentures. Upon termination of any Deferral
Period and upon the payment of all deferred interest then due
on any Interest Payment Date the Company may elect to begin a
new Deferral Period pursuant to this
Section 2.5. At the end of any Deferral
Period, the Company shall pay all deferred interest on the
Debentures to the Persons in whose names the Debentures are
registered in the Securities Register at the close of business
on the Regular Record Date with respect to the Interest
Payment Date at the end of such Deferral Period.
(ii) The
Company may elect to pay interest on any Interest Payment Date
during any Deferral Period to the extent permitted by
Section 2.5(b).
(b)
Payment of
Deferred Interest . The Company will not pay
deferred interest on the Debentures on any Interest Payment
Date during any Deferral Period prior to the Maturity Date
from any source other than Eligible
Proceeds. Notwithstanding the foregoing,
(i) the Company may pay current interest during an
Deferral Period or at any other time from any available funds
and (ii) if a Supervisory Event or an Event of Default
has occurred and is continuing, then the Company may (but is
not obligated to) pay deferred interest with cash from any
source. In addition, if the Company sells
Qualifying APM Securities pursuant to Section 2.7 but a
Supervisory Event arises as a result of the Federal Reserve
disapproving the use of the proceeds to pay deferred interest,
the Company may use the proceeds for other purposes and
continue to defer interest on the Debentures, subject to
Section 2.5(a).
(c)
Business
Combination Exception . If the Company is
involved in a Business Combination where immediately after its
consummation more than 50% of the voting stock of the Person
formed by such Business Combination, or the Person that is the
surviving entity of such Business Combination, or the Person
to whom such properties and assets are conveyed, transferred
or leased in such Business Combination, is owned by the
shareholders of the other party to such Business Combination,
then Section 2.5(b) and Section 2.7 shall not apply
to any Deferral Period that is terminated on the next Interest
Payment Date following the date of consummation of such
Business Combination (or if later, at any time within 90 days
following the date of consummation of the Business
Combination). The settlement of all deferred
interest, whether it occurs on an Interest Payment Date or
another date, will immediately terminate the Deferral
Period. The Company will establish a Special Record
Date for the payment of any deferred interest pursuant to this
Section 2.5(c) on a date other than an Interest Payment
Date.
(d)
Notice of
Deferral . The Company shall give written
notice of its election to begin or extend any Deferral Period,
(x) if the Property Trustee, on behalf of the Trust, is
the sole Holder of the Debentures, to the Property Trustee and
the Delaware Trustee at least five Business Days before the
earlier of (A) the next succeeding date on which the
distributions on the Trust Preferred Securities are payable
and (B) the date the Property Trustee is required to give
notice to holders of the Trust Preferred Securities of the
record or payment date for the related distribut
