Exhibit (10)(P)
FISCAL AND PAYING AGENCY
AGREEMENT
Between
VALLEY NATIONAL BANK,
Issuer
and
WILMINGTON TRUST COMPANY,
Fiscal and Paying Agent
Dated as of
July 13, 2005
5.0% Subordinated Notes
Due July 15, 2015
TABLE OF CONTENTS
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Page
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ARTICLE I
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APPOINTMENT 1
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Section 1.1.
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Appointment of Fiscal and Paying Agent and
Registrar
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1
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ARTICLE II
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THE SUBORDINATED NOTES
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1
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Section 2.1.
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Issuance and Form of Subordinated
Notes
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1
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Section 2.2.
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Certificates of Authorized Representatives of
the Issuer
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2
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Section 2.3.
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Completion, Authentication and
Delivery
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2
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Section 2.4.
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Denominations
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5
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Section 2.5.
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Proceeds of Sale of the Subordinated Notes;
Issuance of Certificated Securities
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5
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Section 2.6.
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Transfer and Exchange of Subordinated
Notes
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5
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Section 2.7.
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Registration; Registration of Transfer and
Exchange
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8
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Section 2.8.
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Persons Deemed Owners
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8
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Section 2.9.
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Mutilated, Lost, Stolen or Destroyed Global
Subordinated Notes
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9
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Section 2.10.
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Subordinated Notes Acquired by the
Issuer
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9
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Section 2.11.
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Redemption
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9
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Section 2.12.
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Repayment Prior to Maturity
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9
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ARTICLE III
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THE FISCAL AND PAYING AGENT
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9
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Section 3.1.
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Payment of Subordinated Notes
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9
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Section 3.2.
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Information Regarding Amounts
Payable
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10
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Section 3.3.
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Deposit of Funds
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10
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Section 3.4.
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Money for Subordinated Note Payments to be Held
in Trust
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10
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Section 3.5.
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Additional Responsibilities
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11
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ARTICLE IV
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CONDITIONS OF FISCAL AND PAYING AGENT’S
OBLIGATIONS
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11
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Section 4.1.
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Liability
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11
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Section 4.2.
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Indemnification
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11
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Section 4.3.
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Officer’s Certificate
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12
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Section 4.4.
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Opinion of Counsel and Officer’s
Certificate
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12
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Section 4.5.
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Other Rights of the Fiscal and Paying
Agent
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12
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Section 4.6.
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Compensation of the Fiscal and Paying
Agent
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13
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i
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ARTICLE V
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RESIGNATION OR REMOVAL OF FISCAL AND PAYING
AGENT
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13
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Section 5.1.
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Resignation or Removal
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13
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Section 5.2.
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Successor Fiscal and Paying Agent
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14
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Section 5.3.
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Successor by Merger, etc.
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14
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ARTICLE VI
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MISCELLANEOUS
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15
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Section 6.1.
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Notices
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15
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Section 6.2.
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Parties
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15
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Section 6.3.
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Governing Law
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15
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Section 6.4.
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Severability
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16
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Section 6.5.
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Effect of Headings
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16
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Section 6.6.
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Amendments; Waivers; Notices of Acceleration
After Events of Default; Compliance Certificate
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16
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Section 6.7.
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Further Issues
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19
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Section 6.8.
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Actions Due on Saturdays, Sundays and
Holidays
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19
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Section 6.9.
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Agreement to Pay Attorneys’ Fees and
Other Expenses
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19
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Section 6.10.
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Survival
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19
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Section 6.11.
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No Implied Waivers
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20
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Section 6.12.
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Counterparts
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20
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Section 6.13.
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Term
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20
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ii
This Fiscal and Paying Agency
Agreement (as may be amended, supplemented or otherwise modified
from time to time, and together with all Exhibits hereto, this
“ Agreement ”) is dated as of July 13, 2005
between VALLEY NATIONAL BANK, a national banking association
organized under the laws of the United States of America (the
“ Issuer ”), and WILMINGTON TRUST COMPANY, a
banking corporation organized under the laws of the State of
Delaware (the “ Fiscal and Paying Agent
”).
WHEREAS, the Issuer has, by a
Purchase Agreement dated July 7, 2005, agreed to issue
$100,000,000 aggregate principal amount of the Issuer’s 5.0%
Subordinated Notes due July 15, 2015 (the “
Subordinated Notes ”); and
WHEREAS, the Issuer desires to
appoint the Fiscal and Paying Agent as fiscal and paying agent of
the Issuer with respect to the preparation, authentication,
delivery, registration and payment of the Subordinated
Notes.
NOW, THEREFORE, the parties agree as
follows:
ARTICLE I
APPOINTMENT
Section 1.1. Appointment of
Fiscal and Paying Agent and Registrar . The Fiscal and Paying
Agent is hereby appointed by the Issuer as fiscal and paying agent
for the Subordinated Notes on the terms and conditions specified in
this Agreement, and the Fiscal and Paying Agent hereby accepts such
appointment subject to all of the rights, privileges and
protections in this Agreement. The Issuer hereby appoints the
Fiscal and Paying Agent as registrar for the Subordinated
Notes.
ARTICLE II
THE SUBORDINATED
NOTES
Section 2.1. Issuance and
Form of Subordinated Notes . The Issuer represents and warrants
that the Subordinated Notes will be initially issued, and
thereafter the Subordinated Notes shall only be transferred, to
persons who are institutional “accredited investors” as
defined in Rule 501(a)(1), (2), (3) or (7) (“
Institutional Accredited Investors ”) promulgated by
the Securities Exchange Commission under the Securities Act of
1933, as amended (“Securities Act”). Except as
otherwise provided herein, the Subordinated Notes will be
represented by one or more global certificates, each such
certificate being hereinafter called a “ Global
Subordinated Note .” All Global Subordinated Notes shall
be registered in the name of a nominee of The Depository Trust
Company (“ DTC ”), as depository. All Global
Subordinated Notes shall be in substantially the form attached
hereto as Exhibit A, the provisions of which are expressly
incorporated into and made a part of this Agreement. All Global
Notes will bear the restricted note legend set forth in Exhibit A
and may have such appropriate insertions, omissions, variations or
substitutions as are required or permitted by, and not inconsistent
with, this Agreement. The Global Notes may also have such letters,
numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any
applicable law or with any applicable rules or regulations made
pursuant thereto or with the rules or regulations of any securities
exchange or governmental agency or as may,
consistently herewith, be determined by the
officers of the Issuer executing such Global Subordinated Notes, as
evidenced by their execution thereof. Beneficial interests in
Global Subordinated Notes will be shown on, and transfers thereof
will be effected only through, records maintained by DTC or its
nominee and its participants.
Purchasers of Subordinated Notes may
receive certificated Subordinated Notes in definitive form (each, a
“ Certificated Subordinated Note ”) only as
provided in Section 2.5(b) below and in accordance with the
procedures set forth in Section 2.6 below. The Certificated
Subordinated Notes (which shall be substantially in the form of,
and bear the restricted note legend set forth in, Exhibit A hereto)
shall be typed, printed, lithographed or engraved or produced by
any combination of these methods on steel engraved borders or may
be produced in any other manner, all as determined by the officers
or other authorized representatives of the Issuer executing such
Certificated Subordinated Notes, as evidenced by their execution of
such Certificated Subordinated Notes.
Except as provided in
Section 2.5(b) or 2.6 below, owners of beneficial interests in
Global Subordinated Notes will not be entitled to receive
Certificated Subordinated Notes.
Section 2.2. Certificates of
Authorized Representatives of the Issuer . The Issuer shall
furnish the Fiscal and Paying Agent with a certificate of the
Secretary, Assistant Secretary or other duly authorized officer of
the Issuer certifying the incumbency and specimen signatures of
representatives of the Issuer authorized to execute, attest and
deliver the Subordinated Notes and other documents on behalf of the
Issuer and to instruct the Fiscal and Paying Agent regarding the
completion and delivery of the Subordinated Notes (each, an “
Authorized Representative ”). Until the Fiscal and
Paying Agent receives a subsequent incumbency certificate of the
Issuer, the Fiscal and Paying Agent shall be entitled to rely on
the last such certificate delivered to it for purposes of
determining the Authorized Representatives.
Section 2.3. Completion,
Authentication and Delivery .
(a) All Subordinated Notes shall be
issued and delivered in accordance with this Agreement, and, in the
case of the Global Subordinated Notes, a letter of representations
from the Issuer to DTC dated no later than the date hereof (the
“ Letter of Representations ”). Notwithstanding
the foregoing, the Fiscal and Paying Agent shall not be required to
perform any duties on any day that is not a Business Day (as
hereinafter defined). All instructions regarding the completion and
delivery of Subordinated Notes shall be given in the form of a
writing, executed on behalf of the Issuer by an Authorized
Representative, delivered or transmitted by mail, courier,
confirmed telex, telecopy, E-mail or other means acceptable to the
Fiscal and Paying Agent and shall specify the form and contents of
such Subordinated Notes consistent with this Agreement and
otherwise provide the Fiscal and Paying Agent sufficient
information to perform its obligations under this Section 2.3.
Upon receipt of instructions as described in the preceding sentence
and the Global Subordinated Note or Notes and Certificated
Subordinated Notes executed by the Issuer (which signature may be
facsimile), the Fiscal and Paying Agent shall:
(i) complete (A) a Global
Subordinated Note or Notes representing one or more Subordinated
Notes and (B) one or more Certificated Subordinated Notes
indicated in such instructions, in each case in accordance with
such instructions;
2
(ii) manually authenticate such
Global Subordinated Note or Notes and Certificated Subordinated
Notes by any one of the officers or employees of the Fiscal and
Paying Agent duly authorized and designated by it for such
purpose;
(iii) deliver any Global
Subordinated Note or Notes to DTC or pursuant to DTC’s
written instructions; and
(iv) deliver any Certificated
Subordinated Notes pursuant to the Issuer’s
instructions.
(b) If any Subordinated Note has
been executed on behalf of the Issuer and authenticated by the
Fiscal and Paying Agent by an officer or representative who was
duly authorized for such purpose at such time, but who is not so
designated at the time said Subordinated Note is to be paid, the
Subordinated Note shall be paid by the Issuer, and the Fiscal and
Paying Agent is hereby authorized to apply funds received from the
Issuer for such payment, notwithstanding that the authority of said
officer or representative has been terminated between the time of
execution and the time of payment.
(c) In the event a discrepancy
exists between the instructions as originally received by the
Fiscal and Paying Agent and any subsequent written confirmation
thereof, such original instructions will be deemed controlling, if
action has already been taken in reliance on such original
instructions. The Fiscal and Paying Agent shall give notice to the
Issuer of any such discrepancy known to it within two
(2) Business Days of the receipt of such subsequent written
confirmation.
(d) All instructions regarding
completion and delivery of Subordinated Notes must be received
(i) in the case of the original issue of Subordinated Notes,
by the Fiscal and Paying Agent by the close of business on the
Business Day preceding the original issue date as set forth in
Section 2.7(c), and (ii) in the case of any subsequent
instruction to complete and deliver Subordinated Notes, by 2:00
p.m. (Wilmington, Delaware time) on the Business Day preceding the
date of delivery, or in either case, such shorter period as the
Fiscal and Paying Agent may determine. For purposes hereof, the
term “ Business Day ” shall mean any day that is
not a Saturday or Sunday and that is not a day on which banks in
New York, New York, Wilmington, Delaware or the State of New Jersey
are generally authorized or required by law or executive order to
be closed.
(e) The Fiscal and Paying Agent
shall incur no liability to the Issuer or to any other person or
entity, including any holder, purchaser, transferor or transferee
of Subordinated Notes, in acting or refraining from taking any
action hereunder upon instructions contemplated hereby which the
officer of the Fiscal and Paying Agent in receipt of such
instructions believed in good faith to have been given by an
Authorized Representative.
(f) Each instruction given to the
Fiscal and Paying Agent in accordance with this Section 2.3
shall constitute a representation and warranty to the Fiscal and
Paying Agent by
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the Issuer that the issuance and delivery of the
Subordinated Notes to which the instruction relates have been duly
and validly authorized by the Issuer, that such Subordinated Notes
when completed, authenticated and delivered pursuant hereto, will
constitute valid and legally binding obligations of the Issuer, and
that the Fiscal and Paying Agent’s appointment to act for the
Issuer hereunder has been duly authorized by all necessary
corporate action of the Issuer, and that the Fiscal and Paying
Agent shall be fully defended and indemnified hereunder in
connection with any liability arising out of or related to any
action taken by the Fiscal and Paying Agent in good faith reliance
on such instruction.
(g) The Issuer hereby represents and
warrants to the Fiscal and Paying Agent that:
(i) The Issuer is duly organized and
validly existing as a national banking association in good standing
under the laws of the United States of America, with corporate
power and authority to own its properties and to conduct its
business as such properties are currently owned and such business
is presently conducted.
(ii) The Issuer has the power and
authority to execute and deliver this Agreement and to carry out
its terms, and the execution, delivery and performance of this
Agreement has been duly authorized by the Issuer by all necessary
corporate action.
(iii) The Issuer has duly executed
and delivered this Agreement, and this Agreement constitutes a
legal, valid and binding obligation of the Issuer, enforceable
against the Issuer in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization and other similar laws affecting the enforcement of
creditors’ rights in general and by general equitable
principles, regardless of whether such enforceability is considered
in a proceeding at law or in equity.
(iv) The consummation of the
transactions contemplated by this Agreement and the fulfillment of
the terms hereof do not and will not (A) conflict with, result
in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time or both) a default under,
the charter or by-laws of the Issuer, or any indenture, agreement
or other instrument to which the Issuer is a party or by which it
is bound, (B) result in the creation or imposition of any lien
upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument or (C) violate any
law or, to the best of the Issuer’s knowledge, any order,
rule or regulation applicable to the Issuer of any court or of any
federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Issuer or
its properties.
(v) There are no proceedings or
investigations pending or, to the Issuer’s knowledge,
threatened before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the
Issuer or its properties (A) asserting the invalidity of this
Agreement or the Subordinated Notes, (B) seeking to prevent
the issuance of the Subordinated Notes or the consummation of any
of the transactions contemplated by this Agreement or the
Subordinated Notes, or (C) seeking any determination or ruling
that might materially and adversely affect the performance by the
Issuer of its obligations under, or the validity or enforceability
of, this Agreement.
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Section 2.4.
Denominations . The Subordinated Notes shall be issuable
only in denominations of $250,000 and any amount in excess thereof
that is a whole multiple of $1,000. Subordinated Notes may not
subsequently be transferred or exchanged by a holder for
Subordinated Notes in denominations of less than
$250,000.
Section 2.5. Proceeds of
Sale of the Subordinated Notes; Issuance of Certificated
Securities .
(a) Funds received in payment for
Subordinated Notes issued by the Issuer shall be credited by the
Fiscal and Paying Agent to an account of the Issuer, as instructed
in writing by an Authorized Representative of the
Issuer.
(b) If at any time (i) DTC
notifies the Issuer in writing that it is unwilling or unable to
continue as depository for the Global Subordinated Notes or if DTC
ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and a successor depository is not
appointed by the Issuer within ninety days after the effective date
of DTC’s ceasing to act as depository for the Global
Subordinated Notes, (ii) the Issuer, at its option, notifies
DTC and the Fiscal and Paying Agent in writing that it elects to
cause the issuance of Subordinated Notes in definitive form or
(iii) any event shall have happened and be continuing which,
after notice or lapse of time, or both, would constitute an Event
of Default (as defined in the Subordinated Notes) with respect to
the Subordinated Notes, the Issuer will execute, and the Fiscal and
Paying Agent will, upon receipt of instructions in writing from the
Issuer, authenticate and deliver Subordinated Notes of like tenor
and terms in definitive form in an aggregate principal amount equal
to the principal amount of the Global Subordinated Notes then
outstanding in exchange for such Global Subordinated Notes. Any
such certificated Subordinated Notes will be issued in fully
registered form to the persons designated in writing by DTC as the
beneficial owners thereof, without coupons, in authorized
denominations.
Section 2.6. Transfer and
Exchange of Subordinated Notes .
(a) Transfer of Global
Subordinated Note for Certificated Subordinated Note .
Notwithstanding any provision to the contrary herein, so long as a
Global Subordinated Note remains outstanding and is held by or on
behalf of DTC, transfers of such Global Subordinated Note or a
beneficial interest therein, in whole or in part, shall be made
only in accordance with this Section 2.6(a) as
follows:
(i) A holder of a beneficial
interest in a Global Subordinated Note deposited with DTC may
transfer its interest in such Global Subordinated Note in the form
of an interest in one or more Certificated Subordinated Notes
subject to the rules and procedures of DTC, as in effect from time
to time, and in accordance with this Section 2.6(a). A holder
of a beneficial interest in a Global Subordinated Note may transfer
such interest in the form of one or more Certificated Subordinated
Notes, only in denominations of $250,000 or any amount in excess
thereof that is a whole multiple of $1,000.
(ii) Upon receipt by the Fiscal and
Paying Agent of (A) written instructions given in accordance
with DTC’s procedures from a holder of a
beneficial
5
interest in a Global Subordinated
Note directing the Fiscal and Paying Agent to debit or to cause to
be debited a beneficial interest in a Global Subordinated Note in a
specified principal amount from such holder’s account and to
provide a beneficial interest of an equivalent principal amount in
the form of one or more Certificated Subordinated Notes, (B) a
written order signed by an Authorized Representative of the Issuer
for the authentication and delivery of Certificated Subordinated
Notes and confirming that all conditions precedent thereto under
this Agreement have been satisfied, along with a copy of an
executed transferee letter in the form of Exhibit B hereto given by
the transferee and (C) Certificated Subordinated Notes
executed by the Issuer in a sufficient quantity to the Fiscal and
Paying Agent, which delivery shall be made no later than 30 days
after the first date on which interests in a Global Subordinated
Note are to be made available in definitive form, the Fiscal and
Paying Agent shall instruct DTC to reduce the Global Subordinated
Note by the aggregate principal amount of the beneficial interest
in the Global Subordinated Note to be so exchanged or transferred
and the Fiscal and Paying Agent shall, concurrently with such
reduction, authenticate and deliver in accordance with the
Issuer’s written instructions one or more Certificated
Subordinated Notes in an equivalent aggregate principal amount. In
no event will the Fiscal and Paying Agent be liable for the costs
and expenses of printing, preparing or delivering any Certificated
Subordinated Notes.
(b) Transfer of Certificated
Subordinated Note for Global Subordinated Note .
(i) A registered holder of a
Certificated Subordinated Note may transfer such Certificated
Subordinated Note in the form of a beneficial interest in a Global
Subordinated Note, only in denominations of $250,000 or any amount
in excess thereof that is a whole multiple of $1,000 and in
accordance with the restrictions set forth on the face of such
Certificated Subordinated Note. If a registered holder of a
Certificated Subordinated Note wishes at any time to transfer such
Subordinated Note to a person who wishes to take delivery in the
form of a beneficial interest in a Global Subordinated Note, such
holder may, subject to the rules and procedures of DTC, transfer or
cause the transfer of such Certificated Subordinated Note for an
equivalent beneficial interest in a Global Subordinated Note upon
presentation and surrender of the Certificated Subordinated Note at
the office of the Fiscal and Paying Agent, accompanied by a written
instrument of transfer in form and substance satisfactory to the
Issuer and the Fiscal and Paying Agent duly executed by the
registered holder thereof or his attorney-in-fact duly authorized
in writing.
(ii) Upon receipt by the Fiscal and
Paying Agent of the surrendered Certificated Subordinated Note from
the transferor and the written instrument of transfer referred to
in clause (i) above, the Fiscal and Paying Agent shall
instruct DTC, in accordance with DTC’s procedures, to
increase the principal amount of the Global Subordinated Note by
the aggregate principal amount of such surrendered Certificated
Subordinated Note. The Fiscal and Paying Agent shall record the
transfer in the Security Register (as hereinafter defined) in
accordance with Section 2.7, in the names specified in the
written instrument of transfer and in the principal amounts
designated by the transferee (which shall be the aggregate of the
face amounts of the Certificated Subordinated Notes surrendered by
the transferor).
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(c) Transfer and Exchange of
Certificated Subordinated Note for Certificated Subordinated
Note .
(i) Transfer of Certificated
Note . The registered holder of any Certificated Subordinated
Note may transfer the same in whole or in part only in
denominations of $250,000 or any amount in excess thereof that is a
whole multiple of $1,000 by surrendering at the office of the
Fiscal and Paying Agent such Certificated Subordinated Note with
the form of transfer thereon duly endorsed by the registered holder
thereof or his attorney-in-fact duly authorized in writing. Upon
receipt by the Fiscal and Paying Agent of (A) Certificated
Subordinated Notes properly presented for transfer, (B) an
order signed by an Authorized Representative of the Issuer for the
authentication and delivery of Certificated Subordinated Notes and
confirming that all conditions precedent thereto under this
Agreement have been satisfied, along with a copy of an executed
transferee letter in the form of Exhibit B hereto given by the
transferee and (C) Certificated Subordinated Notes executed by
the Issuer in a sufficient quantity to the Fiscal and Paying Agent,
which delivery shall be made no later than 30 days after the first
date on which the Certificated Subordinated Notes were submitted
for transfer at the office of the Fiscal and Paying Agent, the
Fiscal and Paying Agent shall promptly authenticate and deliver to
the transferee, or send by mail (at the risk of the transferee) to
such address as the transferee may request in writing, Certificated
Subordinated Notes registered in the name of such transferee, for
the same aggregate principal amount as was transferred. In the case
of the transfer of any Certificated Subordinated Notes in part, the
Fiscal and Paying Agent shall also promptly authenticate and
deliver to the transferor or send by mail (at the risk of the
transferor) to such address as the transferor may request in
writing, Certificated Subordinated Notes registered in the name of
the transferor, for the aggregate principal amount that was not
transferred. No transfer of any Certificated Subordinated Notes may
be made unless the request for such transfer is made by the
registered holder or by a duly authorized attorney-in fact of such
holder at the office of the Fiscal and Paying Agent. In no event
will the Fiscal and Paying Agent be liable for the costs and
expenses of printing, preparing or delivering any Certificated
Subordinated Notes.
(ii) Exchange of Certificated
Subordinated Note . At the option of the registered holder on
request confirmed in writing and subject to applicable laws and
regulations and to the terms set forth in the Certificated
Subordinated Note, Certificated Subordinated Notes may be exchanged
for Certificated Subordinated Notes of any authorized denominations
and of equal aggregate principal amount, upon surrender of the
Certificated Subordinated Notes to be exchanged at the office of
the Fiscal and Paying Agent. Whenever any Certificated Subordinated
Note is so surrendered for exchange, together with a written
request for exchange, the Issuer shall execute, and the Fiscal and
Paying Agent shall promptly authenticate and deliver, Certificated
Subordinated Notes which the holder making the request for exchange
is entitled to receive.
(d) Transfer and Exchange of the
Global Subordinated Notes . The transfer and exchange of a
Global Subordinated Note or beneficial interests therein shall be
effected through DTC, or other depository for the Global
Subordinated Notes, in accordance with this Agreement and the
procedures of DTC or such other depository for the Global
Subordinated
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Notes. Notwithstanding any other provisions of
this Agreement (other than the provisions set forth in
Section 2.5(b) hereof), a Global Subordinated Note may not be
transferred as a whole except by DTC to a nominee of DTC or by a
nominee of DTC to DTC or another nominee of DTC.
(e) No Liability for Costs .
In no event shall the Fiscal and Paying Agent be liable for any
costs (including legal fees) arising out of the transactions
contemplated hereby, all such costs shall be borne by the Issuer or
holder(s) of the Subordinated Notes seeking to effect such
transactions.
Section 2.7. Registration;
Registration of Transfer and Exchange .
(a) The Fiscal and Paying
Ag