First Supplemental Indenture, dated June 30, 2022, between Berkshire Hills Bancorp, Inc. and Wilmington Trust National Association, as Trustee
Exhibit 4.2
BERKSHIRE HILLS BANCORP, INC.,
Company,
AND
WILMINGTON TRUST, NATIONAL ASSOCIATION,
Trustee
FIRST
SUPPLEMENTAL
INDENTURE
Dated as of
June 30, 2022
TO
INDENTURE
Dated as of
June 30, 2022
5.50% FIXED-TO-FLOATING RATE SUBORDINATED NOTES DUE 2032
| Article I DEFINITIONS | 1 |
| Section 1.1 | Definitions | 1 |
| Article II GENERAL TERMS AND CONDITIONS OF THE NOTES | 7 |
| Section 2.1 | Designation and Principal Amount | 7 | |
| Section 2.2 | Form and Denomination of Notes | 7 | |
| Section 2.3 | Initial Limit on Amount of Series | 7 | |
| Section 2.4 | Rank; Subordination | 8 | |
| Section 2.5 | Further Issues Without Holders’ Consent | 8 | |
| Section 2.6 | Form and Payment | 8 | |
| Section 2.7 | Interest | 8 | |
| Section 2.8 | No Sinking Fund | 11 | |
| Section 2.9 | Notes Not Convertible or Exchangeable | 11 | |
| Section 2.10 | Global Securities | 11 | |
| Section 2.11 | No Additional Amounts | 11 | |
| Section 2.12 | No Personal Liability of Officers, Directors, Employees or Shareholders | 11 |
| Article III ORIGINAL ISSUE OF NOTES | 12 |
| Section 3.1 | Original Issue of Notes | 12 |
| Article IV SATISFACTION AND DISCHARGE | 12 |
| Section 4.1 | Satisfaction and Discharge of Indenture | 12 |
| Article V REMEDIES | 13 |
| Section 5.1 | Events of Default | 13 | |
| Section 5.2 | Acceleration of Maturity; Rescission and Annulment | 13 | |
| Section 5.3 | Collection of Indebtedness and Suits for Enforcement by Trustee | 14 |
| Article VI DEFEASANCE | 15 |
| Section 6.1 | Defeasance Applicable to Notes | 15 |
| Article VII REDEMPTION | 15 |
| Section 7.1 | Redemption | 15 | |
| Section 7.2 | Selection by Trustee of Securities to Be Redeemed | 15 | |
| Section 7.3 | Effect of Notice of Redemption | 16 |
| Article VIII MISCELLANEOUS | 16 |
| Section 8.1 | Ratification of Base Indenture | 16 | |
| Section 8.2 | Conflict with Trust Indenture Act | 16 | |
| Section 8.3 | Effect of Headings and Table of Contents | 17 | |
| Section 8.4 | Successors and Assigns | 17 | |
| Section 8.5 | Separability Clause | 17 | |
| Section 8.6 | Benefits of Supplemental Indenture | 17 | |
| Section 8.7 | Governing Law | 17 | |
| Section 8.8 | Waiver of Jury Trial | 17 | |
| Section 8.9 | Consent to Jurisdiction | 17 | |
| Section 8.10 | Counterparts | 18 | |
| Section 8.11 | Trustee | 18 | |
| Section 8.12 | USA PATRIOT Act | 18 | |
| Section 8.13 | Reports by Company | 18 |
| Article IX SUPPLEMENTAL INDENTURES | 19 |
| Section 9.1 | Supplemental Indentures Without Consent of Holders | 19 | |
| Section 9.2 | Supplemental Indentures With Consent of Holders | 20 |
| Article X TRUSTEE MATTERS | 21 |
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of June 30, 2022 (this “Supplemental Indenture”), between Berkshire Hills Bancorp, Inc., a Delaware corporation having an address at 60 State Street, Boston, MA 02109 (hereinafter called the “Company,” which term shall include any successors pursuant to the terms of this Supplemental Indenture), and Wilmington Trust, National Association, a national banking association having a corporate trust office at Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890, as trustee (hereinafter called the “Trustee”).
Recitals of the Company
WHEREAS, the Company executed and delivered the Indenture (the “Base Indenture”), dated as of June 30, 2022, to the Trustee, to provide for the issuance from time to time of the Company’s subordinated debentures, notes or other evidences of indebtedness (the “Securities”), to be issued in one or more series;
WHEREAS, no Securities have been issued under the Base Indenture as of the date hereof;
WHEREAS, pursuant to the terms of the Base Indenture, the Company desires to provide for the establishment of a series of its Securities under the Base Indenture to be known as its “5.50% Fixed-to-Floating Rate Subordinated Notes due 2032” (the “Notes”), the form and the terms, provisions and conditions thereof to be set forth as provided in the Base Indenture and this Supplemental Indenture (the Base Indenture, together with this Supplemental Indenture, referred to herein as this “Indenture”);
WHEREAS, the Board of Directors of the Company, pursuant to resolutions duly adopted by unanimous written consent on June 24, 2022, after consultation with, and advice from, the Company’s management, has duly authorized the issuance of the Notes, and the Company’s management, pursuant to authority granted to it by the Board of Directors of the Company on June 24, 2022, has duly authorized amendments to the Base Indenture with respect to the Notes provided for in this Supplemental Indenture, and is authorized by the Board of Directors of the Company to execute any and all appropriate documents necessary or appropriate to effect each such issuance;
WHEREAS, this Supplemental Indenture is being entered into pursuant to the provisions of Section 2.1, Section 3.1 and Section 9.1 of the Base Indenture;
WHEREAS, the Company has requested that the Trustee execute and deliver this Supplemental Indenture; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the Company, enforceable against the Company in accordance with its terms, and to make each of the Notes, when executed by the Company and authenticated and delivered by the Trustee or an authentication agent, the valid obligations of the Company, have been performed, and the execution and delivery of this Supplemental Indenture has been duly authorized in all respects;
NOW, THEREFORE, in consideration of the premises and the purchase and acceptance of the Notes by the Holders thereof, and for the purpose of setting forth, as provided in the Base Indenture, the forms and terms of the Notes, the Company covenants and agrees with the Trustee, for the equal and proportionate benefit of the Holders of the Notes, as follows:
Article I
DEFINITIONS
Section 1.1 Definitions.
For all purposes of this Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) all references in this instrument to designated “Articles,” “Sections” and other subdivisions are to be designated Articles, Sections and other subdivisions of this Supplemental Indenture unless the context otherwise requires; the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision;
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(b) each term defined in the Base Indenture has the same meaning when used in this Supplemental Indenture, except to the extent specifically defined herein, in which case the meaning ascribed to it in this Supplemental Indenture shall control; and
(c) Section 1.1 of the Base Indenture is amended and supplemented, solely with respect to the Notes, by inserting the following additional defined terms in their appropriate alphabetical positions:
“Administrative or Judicial Action” has the meaning provided in the definition of “Tax Event.”
“Bank” means:
(1) any institution organized under the laws of the United States, any State of the United States, the District of Columbia, any territory of the United States, Puerto Rico, Guam, American Samoa or the Virgin Islands which
| (A) | accepts deposits that the depositor has a legal right to withdraw on demand, and |
| (B) | engages in the business of making commercial loans, or |
(2) any trust company organized under any of the foregoing laws.
“Benchmark” means, initially, Three-Month Term SOFR; provided that if the Calculation Agent determines on or prior to the Reference Time that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to Three-Month Term SOFR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement.
“Benchmark Replacement” means the Interpolated Benchmark with respect to the then-current Benchmark, plus the Benchmark Replacement Adjustment for such Benchmark; provided that if (a) the Calculation Agent cannot determine the Interpolated Benchmark as of the Benchmark Replacement Date or (b) the then-current Benchmark is Three-Month Term SOFR and a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to Three-Month Term SOFR (in which event no Interpolated Benchmark with respect to Three-Month Term SOFR shall be determined), then “Benchmark Replacement” means the first alternative set forth in the order below that can be determined by the Calculation Agent as of the Benchmark Replacement Date:
(1) Compounded SOFR;
(2) the sum of: (a) the alternate rate that has been selected or recommended by the Relevant Governmental Body as the replacement for the then-current Benchmark for the applicable Corresponding Tenor and (b) the Benchmark Replacement Adjustment;
(3) the sum of: (a) the ISDA Fallback Rate, and (b) the Benchmark Replacement Adjustment;
(4) the sum of: (a) the alternate rate that has been selected by the Calculation Agent as the replacement for the then-current Benchmark for the applicable Corresponding Tenor, giving due consideration to any industry-accepted rate as a replacement for the then-current Benchmark for U.S. dollar-denominated floating rate securities at such time, and (b) the Benchmark Replacement Adjustment.
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“Benchmark Replacement Adjustment” means the first alternative set forth in the order below that can be determined by the Calculation Agent as of the Benchmark Replacement Date:
(1) the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero), that has been selected or recommended by the Relevant Governmental Body for the applicable Unadjusted Benchmark Replacement;
(2) if the applicable Unadjusted Benchmark Replacement is equivalent to the ISDA Fallback Rate, then the ISDA Fallback Adjustment; and
(3) the spread adjustment (which may be a positive or negative value or zero) that has been selected by the Calculation Agent giving due consideration to any industry-accepted spread adjustment or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated floating rate securities at such time.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “interest period,” timing and frequency of determining rates with respect to each interest period and making payments of interest, rounding of amounts or tenors, and other administrative matters) that the Calculation Agent decides may be appropriate to reflect the adoption of such Benchmark Replacement in a manner substantially consistent with market practice (or, if the Calculation Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Calculation Agent determines that no market practice for use of the Benchmark Replacement exists, in such other manner as the Calculation Agent determines is reasonably necessary).
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
(1) in the case of clause (1) of the definition of “Benchmark Transition Event,” the relevant Reference Time in respect of any determination;
(2) in the case of clause (2) or (3) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the Benchmark permanently or indefinitely ceases to provide the Benchmark; or
(3) in the case of clause (4) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.
For the avoidance of doubt, for purposes of the definitions of Benchmark Replacement Date and Benchmark Transition Event, references to the Benchmark also include any reference rate underlying the Benchmark (for example, if the Benchmark becomes Compounded SOFR, references to the Benchmark would include SOFR).
For the avoidance of doubt, if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date shall be deemed to have occurred prior to the Reference Time for such determination.
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(1) if the Benchmark is Three-Month Term SOFR, (a) the Relevant Governmental Body has not selected or recommended a forward-looking term rate for a tenor of three months based on SOFR, (b) the development of a forward-looking term rate for a tenor of three months based on SOFR that has been recommended or selected by the Relevant Governmental Body is not complete or (c) the Company determines that the use of a forward-looking rate for a tenor of three months based on SOFR is not administratively feasible;
(2) a public statement or publication of information by or on behalf of the administrator of the Benchmark announcing that such administrator has ceased or will cease to provide the Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark;
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(3) a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark, the central bank for the currency of the Benchmark, an insolvency official with jurisdiction over the administrator for the Benchmark, a resolution authority with jurisdiction over the administrator for the Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark, which states that the administrator of the Benchmark has ceased or will cease to provide the Benchmark permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark; or
(4) a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark announcing that the Benchmark is no longer representative.
“Business Day” means, unless otherwise specified, any day that is not a Saturday or Sunday and that is not a day on which banking institutions are generally authorized or required by law, regulation or executive order to be closed in The City of New York, New York or, with respect to payments, the Place of Payment.
“Calculation Agent” means the agent appointed by the Company prior to the commencement of the Floating Rate Period (which may include the Company or any of its Affiliates) to act in accordance with Section 2.7. The Company shall initially act as the Calculation Agent.
“Company Request” or “Company Order” means a written request or order signed in the name of the Company by its Chairman, its Chief Executive Officer, its President, its Chief Financial Officer, or an officer with a title of Executive Vice President or more senior, and by its Treasurer, an Assistant Treasurer, its Controller, an Assistant Controller, its Secretary, or an Assistant Secretary, and delivered to the Trustee.
“Compounded SOFR” means the compounded average of SOFRs for the applicable Corresponding Tenor, with the rate, or methodology for this rate, and conventions for this rate being established by the Calculation Agent in accordance with:
(1) the rate, or methodology for this rate, and conventions for this rate selected or recommended by the Relevant Governmental Body for determining compounded SOFR; provided that:
(2) if, and to the extent that, the Calculation Agent determines that Compounded SOFR cannot be determined in accordance with clause (1) above, then the rate, or methodology for this rate, and conventions for this rate that have been selected by the Calculation Agent giving due consideration to any industry-accepted market practice for U.S. dollar-denominated floating rate securities at such time.
For the avoidance of doubt, the calculation of Compounded SOFR shall exclude the Benchmark Replacement Adjustment (if applicable) and the spread of 249 basis points per annum.
“Corporate Trust Office” means the office of the Trustee at which any particular time its corporate trust business relating to this Indenture shall be principally administered, which office as of the date of this instrument is located at Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Berkshire Hills Bancorp, Inc., Administrator, or at such other address as the Trustee may designate from time to time by notice to the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
“Corresponding Tenor” means (i) with respect to Term SOFR, three months, and (ii) with respect to a Benchmark Replacement means a tenor (including overnight) having approximately the same length (disregarding business day adjustment) as the applicable tenor for the then-current Benchmark.
“DTC” means The Depository Trust Company.
“Events of Default” has the meaning provided in Section 5.1.
“Federal Reserve” means the Board of Governors of the Federal Reserve System, and any successors thereto.
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“Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.
“Fixed Rate Interest Payment Date” has the meaning provided in Section 2.7(a).
“Fixed Rate Period” has the meaning provided in Section 2.7(a).
“Fixed Rate Regular Record Date” has the meaning provided in Section 2.7(a).
“Floating Rate Interest Payment Date” has the meaning provided in Section 2.7(b).
“Floating Rate Period” has the meaning provided in Section 2.7(b).
“Floating Rate Regular Record Date” has the meaning provided in Section 2.7(b).
“Interest Payment Date” has the meaning provided in Section 2.7(b).
“interest period” means the period from and including the immediately preceding Interest Payment Date in respect of which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from and including the Issue Date to, but excluding, the applicable Interest Payment Date or the Maturity Date or date of earlier redemption, if applicable.
“Interpolated Benchmark” with respect to the Benchmark means the rate determined by the Calculation Agent for the Corresponding Tenor by interpolating on a linear basis between: (1) the Benchmark for the longest period (for which the Benchmark is available) that is shorter than the Corresponding Tenor, and (2) the Benchmark for the shortest period (for which the Benchmark is available) that is longer than the Corresponding Tenor.
“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time.
“ISDA Fallback Adjustment” means the spread adjustment (which may be a positive or negative value or zero) that would apply for derivatives transactions referencing the ISDA Definitions to be determined upon the occurrence of an index cessation event with respect to the Benchmark for the applicable tenor.
“ISDA Fallback Rate” means the rate that would apply for derivatives transactions referencing the ISDA Definitions to be effective upon the occurrence of an index cessation date with respect to the Benchmark for the applicable tenor excluding the applicable ISDA Fallback Adjustment.
“Issue Date” means June 30, 2022.
“Maturity Date” has the meaning provided in Section 2.2.
“Notice of Default” has the meaning provided in Section 5.3(c).
“Officers’ Certificate” means a certificate signed by the Chairman, the Chief Executive Officer, the President, the Chief Financial Officer, or an officer with the title of Executive Vice President or more senior, and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the Secretary, or an Assistant Secretary, of the Company, and delivered to the Trustee. One of the officers signing an Officers’ Certificate given pursuant to Section 10.4 shall be the principal executive, financial, or accounting officer of the Company.
“Principal Subsidiary Bank” means (i) any Subsidiary Bank the consolidated assets of which as set forth in the most recent statement of condition of such Subsidiary Bank constitute 40% or more of the Company’s consolidated assets as determined from the most recent quarterly balance sheet of the Company or (ii) any Subsidiary Bank designated as a Principal Subsidiary Bank by the Board of Directors, provided that if the Federal Reserve notifies the Company that any Subsidiary Bank that is a Principal Subsidiary Bank applying the tests in clause (i) or (ii) above does not qualify as a “major subsidiary depository institution” within the requirements of the Federal Reserve’s risk-based capital guidelines or regulations applicable to bank holding companies, such Subsidiary Bank shall not be a Principal Subsidiary Bank from and after the time the Company receives from the Federal Reserve such a notice.
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“Redemption Date” has the meaning provided in Section 7.1.
“Reference Time” with respect to any determination of the Benchmark means (1) if the Benchmark is Three-Month Term SOFR, the time determined by the Calculation Agent after giving effect to the Three-Month Term SOFR Conventions, and (2) if the Benchmark is not Three-Month Term SOFR, the time determined by the Calculation Agent after giving effect to the Benchmark Replacement Conforming Changes.
“Relevant Governmental Body” means the Federal Reserve and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve and/or the Federal Reserve Bank of New York or any successor thereto.
“Responsible Officer”, when used with respect to the Trustee, means any officer assigned to the Corporate Trust Office (or any successor division or unit) of the Trustee, including any director, vice president, assistant vice president, any trust officer or assistant trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, and shall also include any other officer of the Trustee to whom any corporate trust matter is referred because of such officer’s knowledge of and familiarity with the particular subject, in each case, who shall have direct responsibility for the administration of this Indenture.
“SOFR” means the secured overnight financing rate published by the Federal Reserve Bank of New York, as the administrator of the Benchmark (or a successor administrator), on the Federal Reserve Bank of New York’s Website.
“Subsidiary Bank” means any Subsidiary which is a Bank.
“Tax Event” means the receipt by the Company of an opinion of independent tax counsel to the effect that as a result of (a) an amendment to or change (including any announced prospective amendment or change) in any law or treaty, or any regulation thereunder, of the United States or any of its political subdivisions or taxing authorities; (b) a judicial decision, administrative action, official administrative pronouncement, ruling, regulatory procedure, regulation, notice or announcement, including any notice or announcement of intent to adopt or promulgate any ruling, regulatory procedure or regulation (any of the foregoing, an “Administrative or Judicial Action”); (c) an amendment to or change in any official position with respect to, or any interpretation of, an Administrative or Judicial Action or a law or regulation of the United States that differs from the previously generally accepted position or interpretation; or (d) a threatened challenge asserted in writing in connection with an audit of the Company’s federal income tax returns or positions or a similar audit of any of its Subsidiaries, or a publicly known threatened challenge asserted in writing against any other taxpayer that has raised capital through the issuance of securities that are substantially similar to the Notes, in each case, which change or amendment or challenge becomes effective or which pronouncement, decision or challenge is announced on or after the original issue date of the Notes, there is more than an insubstantial risk that interest payable by the Company on the Notes 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.
“Term SOFR” means the forward-looking term rate for the applicable Corresponding Tenor based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Term SOFR Administrator” means any entity designated by the Relevant Governmental Body as the administrator of Term SOFR (or a successor administrator).
“Three-Month Term SOFR” means the rate for Term SOFR for a tenor of three months that is published by the Term SOFR Administrator at the Reference Time for any interest period, as determined by the Calculation Agent after giving effect to the Three-Month Term SOFR Conventions. All percentages used in or resulting from any calculation of Three-Month Term SOFR shall be rounded, if necessary, to the nearest one-hundred-thousandth of a percentage point, with 0.000005% rounded up to 0.00001%.
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“Three-Month Term SOFR Conventions” means any determination, decision or election with respect to any technical, administrative or operational matter (including with respect to the manner and timing of the publication of Three-Month Term SOFR, or changes to the definition of “interest period,” timing and frequency of determining Three-Month Term SOFR with respect to each interest period and making payments of interest, rounding of amounts or tenors, and other administrative matters) that the Calculation Agent decides may be appropriate to reflect the use of Three-Month Term SOFR as the Benchmark in a manner substantially consistent with market practice (or, if the Calculation Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Calculation Agent determines that no market practice for the use of Three-Month Term SOFR exists, in such other manner as the Calculation Agent determines is reasonably necessary).
“Tier 2 Capital Event” means the Company’s good faith determination that, as a result of (a) any amendment to, or change in, the laws, rules or regulations of the United States (including, for the avoidance of doubt, any agency or instrumentality of the United States, including the Federal Reserve and other federal bank regulatory agencies) or any political subdivision of or in the United States that is enacted or becomes effective after the original issue date of the Notes; (b) any proposed change in those laws, rules or regulations that is announced or becomes effective after the original issue date of the Notes; or (c) any official administrative decision or judicial decision or administrative action or other official pronouncement interpreting or applying those laws, rules, regulations, policies or guidelines with respect thereto that is announced after the original issue date of the Notes, there is more than an insubstantial risk that the Company will not be entitled to treat the Notes then outstanding as “Tier 2 Capital” (or its equivalent) for purposes of the capital adequacy rules or regulations of the Federal Reserve (or, as and if applicable, the capital adequacy rules or regulations of any successor appropriate federal banking agency) as then in effect and applicable to the Company, for so long as any Notes are outstanding.
“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.
Article II
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 2.1 Designation and Principal Amount.
There is hereby authorized and established a series of Securities under this Indenture, designated as the “5.50% Fixed-to-Floating Rate Subordinated Notes due 2032.”
Section 2.2 Form and Denomination of Notes.
The definitive form of the Notes and the Trustee’s Certificate of Authentication to be endorsed thereon shall be substantially in the form set forth in Exhibit A attached hereto, which is incorporated herein and made part hereof. The Notes shall bear interest and have such other terms as are stated in the form of definitive Notes or in this Indenture. The Stated Maturity of the Notes shall be July 1, 2032 (the “Maturity Date”). The Notes shall be issued in minimum denominations of $1,000 and integral multiples of $1,000 in excess thereof.
Section 2.3 Initial Limit on Amount of Series.
The Notes shall initially be limited to U.S. $100,000,000 in aggregate principal amount, and may, upon the execution and delivery of this Supplemental Indenture or from time to time thereafter, be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said Notes to or upon the delivery of a Company Order. Following the initial issuance of the Notes, the aggregate principal amount of Notes may be increased as provided in Section 2.5 hereof.
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Section 2.4 Rank; Subordination.
The Notes are unsecured and shall rank subordinate and junior, to the extent and in the manner set forth in this Indenture, in right of payment and upon liquidation of all the Company’s obligations to the holders of Senior Debt of the Company. The Notes shall rank equally among themselves and with all of the Company’s other subordinated unsecured indebtedness that, in the instrument creating or evidencing the same or pursuant to which the same is outstanding, provides that such obligations are not superior in right of payment to the Notes or to other indebtedness that is pari passu with, or is not subordinate to, the Notes. It is intended that the Notes be and are Tier 2 Capital or the equivalent, for all regulatory purposes.
Section 2.5 Further Issues Without Holders’ Consent.
The Company may, without notice to or the consent of the Holders of the Notes, but in compliance with the terms of this Indenture, create and issue additional Notes having the same ranking, interest rate, maturity date and other terms as the Notes (other than the date of issuance, the issue price, the initial interest accrual date and the first Interest Payment Date). Any such additional Notes shall rank equally and ratably with the Notes. Any such additional Notes, together with the Notes initially issued hereunder, shall constitute a single series of Securities for all purposes under this Indenture. Notwithstanding anything to the contrary in the foregoing, no additional Notes may be issued unless (1) the additional Notes will be fungible with the Notes initially issued hereunder for United States federal securities law purposes, (2) (a) the additional Notes are issued pursuant to a “qualified reopening” of the Notes initially issued hereunder for United States federal income tax purposes, or (b) the Notes initially issued hereunder were, and the additional Notes are, issued without any original issue discount for United States federal income tax purposes and (3) the additional Notes have the same CUSIP number as the Notes initially issued hereunder. No additional Notes may be issued if any Event of Default has occurred and is continuing with respect to the Notes.
Section 2.6 Form and Payment.
Principal of, premium, if any, and interest on the Notes shall be payable in U.S. Dollars. Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Company or one of its Subsidiaries, holds as of 10:00 a.m. Eastern Time on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all such amounts then due. At the option of the Company, interest may be paid by mailing a check to the address of the Person entitled to such interest as such address shall appear in the Security Register.
Section 2.7 Interest.
(a) The Notes shall bear interest at a fixed rate of 5.50% per annum from and including June 30, 2022 to, but excluding, July 1, 2027 or any earlier Redemption Date (the “Fixed Rate Period”). Interest accrued on the Notes during the Fixed Rate Period shall be payable semiannually in arrears on January 1 and July 1 of each year, commencing on January 1, 2023 (each such date, a “Fixed Rate Interest Payment Date”). The last Fixed Rate Interest Payment Date shall be July 1, 2027, unless the Notes are earlier redeemed. The interest payable on each Fixed Rate Interest Payment Date during the Fixed Rate Period shall be paid to each Holder in whose name a Note is registered at the close of business on the fifteenth calendar day (whether or not a Business Day) immediately preceding the applicable Fixed Rate Interest Payment Date (each such date, a “Fixed Rate Regular Record Date”), except that interest that is paid at Maturity shall be paid to the Person to whom the principal shall be payable.
(b) The Notes shall bear a floating interest rate from, and including July 1, 2027, to, but excluding, the Maturity Date or earlier Redemption Date (the “Floating Rate Period”). The floating interest rate shall be reset quarterly, and the interest rate for any Floating Rate Period shall be equal to the then-current Three-Month Term SOFR plus 249 basis points for each quarterly interest period during the Floating Rate Period. During the Floating Rate Period, interest on the Notes shall be payable quarterly in arrears on January 1, April 1, July 1 and October 1 of each year, commencing on October 1, 2027 (each such date, a “Floating Rate Interest Payment Date” and, together with a Fixed Rate Interest Payment Date, an “Interest Payment Date”). The interest payable on each Floating Rate Interest Payment Date during the Floating Rate Period shall be paid to each Holder in whose name a Note is registered at the close of business on the fifteenth calendar day (whether or not a Business Day) immediately preceding the applicable Floating Rate Interest Payment Date (each such date, a “Floating Rate Regular Record Date”), except that interest that is paid at Maturity shall be paid to the Person to whom the principal shall be payable. Notwithstanding the foregoing, if Three-Month Term SOFR (or other applicable Benchmark) is less than zero, then Three-Month Term SOFR (or other such Benchmark) shall be deemed to be zero. The Calculation Agent shall provide the Company and the Trustee with the interest rate in effect on the Notes promptly after the Reference Time (or such other date of determination for the applicable Benchmark).
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(c) The amount of interest payable on any Fixed Rate Interest Payment Date during the Fixed Rate Period shall be computed on the basis of a 360-day year consisting of twelve 30-day months to, but excluding, July 1, 2027, and the amount of interest payable on any Floating Rate Interest Payment Date during the Floating Rate Period shall be computed on the basis of a 360-day year on the basis of the actual number of days elapsed during such period. The Company or the Calculation Agent, as applicable, shall calculate the amount of interest payable on any Interest Payment Date and the Trustee shall have no duty to confirm or verify any such calculation. In the event that any scheduled Interest Payment Date or the Maturity Date for the Notes falls on a day that is not a Business Day, then payment of interest payable on such Interest Payment Date or of principal and interest payable on the Maturity Date shall be paid on the next succeeding day which is a Business Day (any payment made on such date shall be treated as being made on the date that the payment was first due and no interest on such payment shall accrue for the period from and after such scheduled Interest Payment Date); provided, that in the event that any scheduled Floating Rate Interest Payment Date falls on a day that is not a Business Day and the next succeeding Business Day falls in the next succeeding calendar month, such Floating Rate Interest Payment Date shall be accelerated to the immediately preceding Business Day, and, in each such case, the amounts payable on such Business Day shall include interest accrued to, but excluding, such Business Day. Dollar amounts resulting from interest calculations shall be rounded to the nearest cent, with one half cent being rounded upward.
(d) The Company shall take such actions as are necessary to ensure that from the commencement of the Floating Rate Period for so long as any of the Notes remain outstanding there shall at all times be a Calculation Agent appointed to calculate Three-Month Term SOFR in respect of each Floating Rate Period and to determine and calculate any interest in respect of any Benchmark Replacement. The calculation of Three-Month Term SOFR for each applicable Floating Rate Period by the Calculation Agent shall (in the absence of manifest error) be final and binding. The Trustee will have no duty to confirm or verify any such calculation. By its acquisition of the Notes, each Holder of the Notes (including, for the avoidance of doubt, each beneficial owner) acknowledges, accepts, consents to and agrees to be bound by the Calculation Agent’s determination of the interest rate for each Floating Rate Period, including the Calculation Agent’s determination of any Benchmark Replacement Conforming Changes, Benchmark Replacement Date, Benchmark Replacement, Benchmark Replacement Adjustment or Benchmark Transition Event, including as may occur without any prior notice from the Company or the Calculation Agent and without the need for the Company or the Calculation Agent to obtain any further consent from any Holder. The Calculation Agent’s determination of any interest rate and its calculation of interest payments for any period shall be maintained on file at the Calculation Agent’s principal offices, shall be made available by the Company to any Holder of the Notes upon request and shall be provided to the Trustee (for informational purposes only). The Trustee shall have no responsibility to determine whether any manifest error has occurred, may conclusively assume that no such manifest error exists and shall not be liable in so assuming. The Calculation Agent shall have all the rights, protections and indemnities afforded to the Trustee under this Indenture. The Calculation Agent may be removed by the Company at any time. If the Calculation Agent is unable or unwilling to act as Calculation Agent or is removed by the Company, the Company shall promptly appoint a replacement Calculation Agent. The Calculation Agent may not resign its duties without a successor having been duly appointed; provided, that if a successor Calculation Agent has not been appointed by the Company and such successor accepted such position within 30 days after the giving of notice of resignation by the Calculation Agent, then the resigning Calculation Agent may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Calculation Agent with respect to such series. The Trustee shall have no duty to monitor compliance or see to the performance by the Calculation Agent of any of its obligations in respect of the Notes or to perform such obligations, and shall not be under any duty to succeed to, assume or otherwise perform, any duties of the Calculation Agent, or to appoint a successor or replacement in the event of the Calculation Agent’s resignation or removal or to replace the Calculation Agent in the event of a default, breach or failure of performance on the part of the Calculation Agent with respect to the Calculation Agent’s duties and obligations hereunder. For the avoidance of doubt, if at any time there is no Calculation Agent appointed by the Company, or the Calculation Agent appointed by the Company is unable or unwilling to perform its duties hereunder, then the Company shall be the Calculation Agent. The Company may appoint itself or any of its Affiliates to be the Calculation Agent.
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(e) Effect of Benchmark Transition Event.
(1) If the Calculation Agent determines that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred on or prior to the Reference Time in respect of any determination of the Benchmark on any date, then the Benchmark Replacement shall replace the then-current Benchmark for all purposes relating to the Notes during the Floating Rate Period in respect of such determination on such date and all determinations on all subsequent dates. In connection with the implementation of a Benchmark Replacement, the Calculation Agent shall have the right to make Benchmark Replacement Conforming Changes from time to time.
(2) Notwithstanding anything set forth in Section 2.7(b) above, if the Calculation Agent determines on or prior to the relevant Reference Time that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to Three-Month Term SOFR, then the provisions set forth in this Section 2.7(e) shall thereafter apply to all determinations of the interest rate on the Notes during the Floating Rate Period. After a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the interest rate on the Notes for each interest period during the Floating Rate Period shall be an annual rate equal to the Benchmark Replacement plus 249 basis points.
(3) The Calculation Agent is expressly authorized to make the determinations, decisions and elections set forth in the terms of the Notes, including with respect to the use of Three-Month Term SOFR as the Benchmark, and in this Section 2.7(e). Any determination, decision or election that may be made by the Calculation Agent under the terms of the Notes, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or selection (A) shall be conclusive and binding on the Holders of the Notes and the Trustee absent manifest error, (B) if made by the Company as Calculation Agent, shall be made in the Company’s sole discretion, (C) if made by a Calculation Agent other than the Company, shall be made after consultation with the Company, ensuring that the Calculation Agent will be able to meet its obligations and requirements under the Indenture, and the Calculation Agent shall not make any such determination, decision or election to which the Company reasonably objects and (D) notwithstanding anything to the contrary herein or in the Base Indenture, shall become effective without consent from the Holders of the Notes, the Trustee or any other party. If the Calculation Agent fails to make any determination, decision or election that it is required to make under the terms of the Notes, then the Company shall make such determination, decision or election on the same basis as described above.
(4) The Company (or its Calculation Agent) shall notify the Trustee in writing (for informational purposes only) (i) upon the occurrence of the Benchmark Transition Event and the Benchmark Replacement Date, and (ii) of any Benchmark Replacements, Benchmark Replacement Conforming Changes and other items affecting the interest rate on the Notes after a Benchmark Transition Event.
(5) The Trustee shall not be responsible or liable for the actions or omissions of the Calculation Agent hereunder, or any failure or delay in the performance of the Calculation Agent’s duties or obligations, nor shall it be under any obligation to monitor or oversee the performance of the Calculation Agent. For the avoidance of doubt (and without limitation of the foregoing), the Trustee (including in its capacity as Paying Agent) shall have no (i) responsibility or liability for the (A) Three-Month Term SOFR Conventions, (B) selection of an alternative reference rate to Three-Month Term SOFR (including, without limitation, whether the conditions for the designation of such rate have been satisfied or whether such rate is a Benchmark Replacement or an Unadjusted Benchmark Replacement), (C) determination or calculation of a Benchmark Replacement, or (D) determination of whether a Benchmark Transition Event or Benchmark Replacement Date has occurred, and in each such case under clauses (A) through (D) above shall be entitled to conclusively rely upon the selection, determination, and/or calculation thereof as provided by the Company or its Calculation Agent, as applicable, and (ii) liability for any failure or delay in performing its duties hereunder as a result of the unavailability of a Benchmark rate as described in the definition thereof, including, without limitation, as a result of the Company’s or Calculation Agent’s failure to select a Benchmark Replacement or the Calculation Agent’s failure to calculate a Benchmark or for the occurrence or non-occurrence of an event, circumstance, or date and any decision to take or refrain from taking any action or any selection related to rate-setting or with respect to any delay caused by the Calculation Agent’s failure to timely or appropriately determine a Benchmark. The Trustee shall be entitled to rely conclusively on all notices from the Company or its Calculation Agent regarding any Benchmark or Benchmark Replacement, including, without limitation, in regards to Three-Month Term SOFR Conventions, a Benchmark Transition Event, Benchmark Replacement Date, and Benchmark Replacement Conforming Changes. All notices received hereunder by the Trustee from the Calculation Agent and all notices received by the Trustee from the Company pursuant to this Section 2.7(e) shall be for informational purposes only and shall not require the Trustee to take any action in respect thereof. The Trustee shall be entitled to conclusively rely on any determination made, and any instruction, notice, Officers’ Certificate or other instruction or information provided by the Calculation Agent without independent verification, investigation or inquiry of any kind. The Trustee shall not be obligated to enter into any amendment or supplement hereto that adversely impacts its rights, duties, obligations, immunities or liabilities (including, without limitation, in connection with the adoption of any Benchmark Replacement Conforming Changes).
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(6) If the then-current Benchmark is Three-Month Term SOFR, the Calculation Agent shall have the right to establish the Three-Month Term SOFR Conventions, and if any of the foregoing provisions concerning the calculation of the interest rate and the payment of interest during the Floating Rate Period are inconsistent with any of the Three-Month Term SOFR Conventions determined by the Calculation Agent, then the relevant Three-Month Term SOFR Conventions shall apply.
Section 2.8 No Sinking Fund.
No sinking fund shall be provided with respect to the Notes. In no event shall any Holder of the Notes have the right to require the Company to call, redeem or repurchase the Notes, in whole or in part, and Article XII of the Base Indenture shall not be applicable to the Notes. Nothing in this Section 2.8 shall limit the ability of Holders of Notes to enforce their rights to the payment of principal, premium, if any, and interest on the Notes at maturity as provided in the Notes and in the Base Indenture, including Section 5.8 of the Base Indenture.
Section 2.9 Notes Not Convertible or Exchangeable.
The Notes shall not be convertible or exchangeable for other securities or assets or property.
Section 2.10 Global Securities.
The Notes shall be issued as Securities and in the form of one or more permanent global Securities, without coupons, registered in the name of the Depositary or its nominee. The initial Depositary for the Notes shall be DTC. Except as otherwise provided in Section 3.5 of the Base Indenture, the global Securities described above may be transferred by the Depositary, in whole but not in part, only to a nominee of the Depositary, or by a nominee of the Depositary to the Depositary, or to a successor Depositary or to a nominee of such successor Depositary.
Owners of beneficial interests in such global Securities shall not be considered the Holders thereof for any purpose under this Indenture. The rights of owners of beneficial interests in such global Securities shall be exercised only through the Depositary.
Section 2.11 No Additional Amounts.
In the event that any payment on the Notes is subject to withholding of any U.S. federal income tax or other tax or assessment (as a result of a change in law or otherwise), the Company shall not pay additional amounts with respect to such tax or assessment.
Section 2.12 No Personal Liability of Officers, Directors, Employees or Shareholders.
The Trustee, and each Holder of the Notes by its acceptance thereof, will be deemed to have agreed in this Indenture that no director, officer, employee, or shareholder, as such, of the Company, the Trustee, or any Affiliate of any of the foregoing entities shall have any personal liability in respect of the obligations of the Company under this Indenture or the Notes by reason of their or its status. The agreements set forth in this Section are part of the consideration for the issuance of the Notes.
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Article III
ORIGINAL ISSUE OF NOTES
Section 3.1 Original Issue of Notes.
The Notes may, upon execution of this Supplemental Indenture, be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall, upon Company Order, authenticate and deliver such Notes as in such Company Order provided.
Article IV
SATISFACTION AND DISCHARGE
With respect to the Notes only, Section 4.1 of the Base Indenture is hereby replaced with the following:
Section 4.1 Satisfaction and Discharge of Indenture.
This Indenture, including the provisions of Article XIV of the Base Indenture as modified hereby (except as to any surviving rights of registration of transfer or exchange of Notes expressly provided for in this Indenture), shall upon Company Request cease to be of further effect with respect to the Notes, and the Trustee, at the expense of the Company, shall execute such instruments reasonably requested by the Company acknowledging satisfaction and discharge of this Indenture as to the Notes, when
(a) either:
(1) all Notes previously authenticated and delivered (other than (i) Notes which have been destroyed, lost, or stolen and which have been replaced or paid as provided in Section 3.6 of the Base Indenture and (ii) Notes for whose payment money has previously been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.3 of the Base Indenture) have been delivered to the Trustee for cancellation; or
(2) all such Notes not previously delivered to the Trustee for cancellation
| (A) | have become due and payable, |
| (B) | will become due and payable at their Stated Maturity within one year, or |
| (C) | are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, |
and the Company, in the case of (A), (B) or (C) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount sufficient to pay and discharge the entire indebtedness on such Notes not previously delivered to the Trustee for cancellation (other than Notes which have been destroyed, lost, or stolen and which have been replaced or paid as provided in Section 3.6 of the Base Indenture), for principal and any premium and interest to the date of such deposit (in the case of Notes which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable by the Company under this Supplemental Indenture and the Notes;
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(c) the Company has delivered irrevocable instructions to the Trustee to apply the deposited cash and/or U.S. Government Obligations toward the payment of the Notes at maturity or on the Redemption Date, as the case may be; and
(d) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to the satisfaction and discharge of this Indenture with respect to the Notes have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to the Notes, the obligations of the Company to the Trustee under Section 6.7 of the Base Indenture, the obligations (if any) of the Company to any Authenticating Agent under Section 6.14 of the Base Indenture and, if money shall have been deposited with the Trustee pursuant to subclause (2) of Clause (a) of this Section, the obligations of the Trustee under Section 4.2 of the Base Indenture and the last paragraph of Section 10.3 of the Base Indenture shall survive.
Article V
REMEDIES
With respect to the Notes only, the limitations set forth in Section 5.7 of the Base Indenture do not apply to a suit instituted by a holder of Notes for the enforcement of payment of the principal of or interest on the Notes on or after the Maturity Date.
With respect to the Notes only, Sections 5.1, 5.2 and 5.3 of the Base Indenture are hereby replaced with the following:
Section 5.1 Events of Default.
“Events of Default,” wherever used in this Indenture with respect to the Notes, means any one of the following events (whatever the reason for such Event of Default, whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree, or order of any court or any order, rule, or regulation of any administrative or governmental body):
(a) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company or a Principal Subsidiary Bank in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or a Principal Subsidiary Bank is appointed for the Company or for any substantial part of its property or for a Principal Subsidiary Bank, or a court or a bank regulatory authority having jurisdiction in the premises, shall appoint a receiver or similar official, or order the winding-up or liquidation of the affairs of the Company or a Principal Subsidiary Bank, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(b) the Company or a Principal Subsidiary Bank shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or shall consent to the entry of an order for relief in any involuntary case under any such law, or the Company or a Principal Subsidiary Bank shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official) of the Company or a Principal Subsidiary Bank or for 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 shall take any corporate action in furtherance of any of the foregoing.
Section 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default under clause (a) or (b) of Section 5.1 hereof with respect to the Notes occurs and is continuing, then the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Notes may declare the principal of all the Notes to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders), and upon any such declaration such principal or such lesser amount shall become immediately due and payable.
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At any time after such a declaration has been made with respect to the Notes and before a judgment or decree for payment of the money due has been obtained by the Trustee as provided in Article V of this Indenture, the Holders of a majority in principal amount of the Outstanding Notes, by written notice to the Company and the Trustee may waive all defaults with respect to all affected series, and may rescind and annul such declaration and the consequences of the Event of Default if:
(a) the Company has paid or deposited with the Trustee a sum sufficient to pay (1) all overdue interest on all Notes, (2) the principal of (and premium, if any, on) any Notes which have become due otherwise than by such declaration of acceleration and any interest on such Notes at the rate or rates prescribed herein and in the Notes, and (3) all sums paid or advanced by the Trustee under this Indenture and the reasonable compensation, expenses, disbursements, and advances of the Trustee, its agents, and counsel; and
(b) all defaults and Events of Default with respect to the Notes, other than the non-payment of the principal of the Notes which has become due solely by such acceleration, have been cured or waived as provided in Section 5.13 of the Base Indenture.
No such rescission shall affect any subsequent default or impair any consequent right.
Except for an Event of Default specified in Section 5.1(a) or 5.1(b), no other default, or failure to perform, or breach of any covenant or warranty of the Company, shall result in a right to accelerate the principal or interest due under the Securities then Outstanding.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(a) default is made in the payment of any interest on any Note when such interest becomes due and payable and such default continues for a period of 30 days,
(b) default is made in the payment of the principal of (or premium, if any, on) any Note at its Maturity, or
(c) default is made in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default in the performance of which or breach of which is elsewhere in this Section specifically dealt with or which has been expressly included in this Indenture solely for the benefit of a series of Securities other than such series), and such default or breach continues for a period of 30 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of such series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” under this Indenture,
the Company shall, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed in such Securities, and, in addition, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements, and advances of the Trustee, its agents, and counsel.
If the Company fails to pay such amounts immediately upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company or any other obligor upon such Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Notes, wherever situated.
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If an Event of Default with respect to the Notes occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of the Notes by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other proper remedy.
Article VI
DEFEASANCE
Section 6.1 Defeasance Applicable to Notes.
Pursuant to Section 3.1 of the Base Indenture, provision is hereby made for defeasance of the Notes under Section 13.1 of the Base Indenture upon the terms and conditions contained in Article XIII of the Base Indenture.
Article VII
REDEMPTION
Section 7.1 Redemption.
The Notes shall be redeemable, in each case, in whole at any time or in part from time to time, at the option of the Company beginning with the Interest Payment Date on July 1, 2027, but not prior thereto (except upon the occurrence of certain events specified below), and on any Interest Payment Date thereafter (each, a “Redemption Date”), subject to obtaining the prior approval of the Federal Reserve to the extent such approval is then required under the rules of the Federal Reserve. The Notes may not otherwise be redeemed prior to the Maturity Date, except that the Company may, at its option, redeem the Notes before the Maturity Date, in whole, but not in part, subject to obtaining the prior approval of the Federal Reserve to the extent such approval is then required under the rules of the Federal Reserve, upon the occurrence of a Tier 2 Capital Event or a Tax Event, or if the Company is required to register as an investment company pursuant to the Investment Company Act of 1940, as amended (15 U.S.C. 80a-1 et seq.). Any such redemption shall be at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest to, but excluding, the Redemption Date fixed by the Company (subject to the right of Holders of the Notes on the relevant record date to receive interest, if any, due on the relevant Interest Payment Date). The provisions of Article XI of the Base Indenture shall apply to any redemption of the Notes pursuant to this Section 7.1. Any partial redemption of a global Security representing the Notes shall be made in accordance with DTC’s applicable procedures among all of the Holders of the Notes. If any Note is to be redeemed in part only, the notice of redemption relating to such Note shall state that it is a partial redemption and the portion of the principal amount thereof to be redeemed, and a replacement Note in principal amount equal to the unredeemed portion thereof shall be issued in the name of the Holder thereof upon cancellation of the original Note.
Section 7.2 Selection by Trustee of Securities to Be Redeemed.
With respect to the Notes only, Section 11.3 of the Base Indenture is hereby revised to read as follows:
If less than all the Securities of any series are to be redeemed (unless all of the Securities of such series and of a specified tenor are to be redeemed or such series is comprised of a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption on a pro rata basis to the extent practicable, or if a pro rata basis is not practicable for any reason, by lot, and in any case in accordance with the Depositary’s procedures, and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple of such denomination) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series. If less than all of the Securities of such series and of a specified tenor are to be redeemed (unless such series is comprised of a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence.
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Unless all of the Securities of such series and of a specified tenor are to be redeemed or such series is comprised of a single Security, the Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities (other than Securities comprised of a single Security) selected for partial redemption, the principal amount thereof to be redeemed. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) of such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 7.3 Effect of Notice of Redemption.
With respect to the Notes only, Section 11.6 of the Base Indenture is hereby revised to read as follows:
Notice of redemption having been given in accordance with this Indenture, the Notes to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price specified in the notice, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Notes shall cease to bear interest; provided that any redemption or notice of any redemption may, at the Company’s discretion, be subject to the satisfaction (or waiver by the Company in its sole discretion) of one or more conditions precedent, including, but not limited to, completion of an equity offering, other offering, issuance of indebtedness, or other corporate transaction or event, and notice of any redemption in respect thereof may be given prior to the completion thereof and may be partial as a result of only some of the conditions being satisfied. Any such conditions precedent shall be set forth in the notice of redemption, and such notice shall state that, in the Company’s discretion, the Redemption Date may be delayed until such time as any or all such conditions shall be satisfied (or waived by the Company in its sole discretion), including to a date that is more than 60 days following the date of the initial notice of redemption, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied (or waived by the Company in its sole discretion) by the Redemption Date, or by the Redemption Date so delayed. The Company shall provide written notice of the delay or rescission of such notice of redemption to the Trustee no later than 5:00 p.m. Eastern Time on the second Business Day prior to the Redemption Date. Upon surrender of any Note for redemption in accordance with a notice of redemption, such Note shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date.
Article VIII
MISCELLANEOUS
Section 8.1 Ratification of Base Indenture.
The Base Indenture, as amended and supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided; provided, however, that the provisions of this Supplemental Indenture shall apply solely with respect to the Notes and shall govern in the event of any difference with the Base Indenture.
Section 8.2 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
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Section 8.3 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 8.4 Successors and Assigns.
All covenants and agreements in this Supplemental Indenture by the Company shall bind its successors and assigns, whether expressed or not.
Section 8.5 Separability Clause.
In case any provision in this Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 8.6 Benefits of Supplemental Indenture.
Nothing in this Supplemental Indenture or in the Notes, express or implied, shall give to any Person, other than the Holders of the Securities, the parties hereto and their successors hereunder, any benefit of any legal or equitable right, remedy or claim under this Supplemental Indenture.
Section 8.7 Governing Law.
This Supplemental Indenture and the Notes shall be governed by and construed in accordance with the laws of the State of New York (including but not limited to N.Y. General Obligations Law Section 5-1401 and any successor statute thereto), without regard to the conflicts of law provisions thereof.
Section 8.8 Waiver of Jury Trial.
EACH OF THE COMPANY, THE TRUSTEE AND EACH HOLDER OF A SECURITY BY ITS ACCEPTANCE THEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE SECURITIES, THE BASE INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 8.9 Consent to Jurisdiction.
Each of the Company and the Trustee irrevocably consents and submits, for itself and in respect of any of its assets or property, to the nonexclusive jurisdiction of any court of the State of New York or any United States court sitting, in each case, in the Borough of Manhattan, The City of New York, New York, United States of America, and of any appellate court in respect thereof in any suit, action or proceeding that may be brought in connection with this Indenture or the Securities, and waives any immunity from the jurisdiction of such courts. Each of the Company and the Trustee irrevocably waives, to the fullest extent permitted by law, any objection to any such suit, action or proceeding that may be brought in such courts whether on the grounds of venue, residence or domicile or on the ground that any such suit, action or proceeding has been brought in an inconvenient forum. Each of the Company and the Trustee agrees, to the fullest extent that it lawfully may do so, that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding upon the Company and the Trustee, respectively, and the Company waives, to the fullest extent permitted by law, any objection to the enforcement by any competent court in the Company’s jurisdiction of organization of judgments validly obtained in any such court in the State of New York on the basis of such suit, action or proceeding.
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Section 8.10 Counterparts.
This Supplemental Indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile, email or other electronic format (i.e., “pdf,” “tif” or “jpg”) shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile, email or other electronic format shall be deemed to be their original signatures for all purposes. This Supplemental Indenture and any other document, certificate or opinion delivered in connection with this Supplemental Indenture or the issuance and delivery of Notes may be signed by or on behalf of the Company and the Trustee by manual, facsimile or pdf, tif or jpg; provided, however, that the Trustee shall manually authenticate the Notes.
Section 8.11 Trustee.
The Trustee shall not be responsible for and makes no representation as to the validity, sufficiency or adequacy of this Supplemental Indenture or the Notes, and the recitals contained in this Supplemental Indenture and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness. The Trustee shall not be accountable for the use or application by the Company of the Notes or the proceeds thereof and it shall not be responsible for any statement in any other document in connection with the sale of the Notes.
Section 8.12 USA PATRIOT Act.
The parties hereto acknowledge that in order to help the government fight the funding of terrorism and money laundering activities, pursuant to federal regulations that became effective on October 1, 2003, Section 326 of the USA PATRIOT Act requires all financial institutions to obtain, verify, and record information that identifies each person or legal entity establishing a relationship or opening an account with the Trustee. The parties hereto agree that they will provide the Trustee with name, address, tax identification number, if applicable, and other information that will allow the Trustee to identify the individual or entity who is establishing the relationship, and will further provide the Trustee with formation documents such as articles of incorporation or other identifying documents in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
Section 8.13 Reports by Company.
With respect to the Notes only, Section 7.4 of the Base Indenture is hereby replaced with the following:
Section 7.4 Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents, and other reports, and such summaries, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Trust Indenture Act; provided that with respect to any such information, documents, or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, the Company intends to file such information, documents or reports with the Commission in electronic form in accordance with Regulation S-T of the Commission using the Commission’s Electronic Data Gathering, Analysis and Retrieval system (EDGAR). Compliance with the foregoing, or any successor electronic system approved by the Commission, will constitute delivery by the Company of such reports to the Trustee and Holders in compliance with the Trust Indenture Act.
The Trustee shall have no duty to review or analyze reports delivered to it. Delivery of such reports, information, and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee shall be entitled to rely exclusively on Officers’ Certificates). The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Company’s compliance with the covenants or with respect to any reports or other documents filed with the Commission or EDGAR or any website under the indenture, or participate in any conference calls.
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Article IX
SUPPLEMENTAL INDENTURES
With respect to the Notes only, Sections 9.1, 9.2, and 14.11 of the Base Indenture are hereby replaced with the following:
Section 9.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holder of the Notes, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more supplemental indentures, in form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company as obligor under this Indenture;
(b) to evidence and provide for the acceptance or appointment of a successor Trustee with respect to the Notes or facilitate the administration of the trusts under this Indenture by more than one Trustee;
(c) to add to the covenants of the Company for the benefit of the Holders of the Notes or to surrender any right or power conferred upon the Company in this Indenture, provided that such action shall not adversely affect the interests of the Holders of the Notes in any material respect as determined in good faith by the Company and evidenced by an Officers’ Certificate;
(d) to add any additional Events of Default for the benefit of the Holders of the Notes;
(e) to cure any ambiguity, defect or inconsistency in this Indenture, provided that such action shall not adversely affect the interests of the Holders of the Notes in any material respect as determined in good faith by the Company and evidenced by an Officers’ Certificate;
(f) to conform the text of this Indenture or the Notes to any provision of the “Description of Notes” in the prospectus supplement applicable to the Notes at the time of the initial sale thereof;
(g) to secure the Notes or add obligors or collateral;
(h) to establish the form of any Securities and to provide for the issuance of any series of Securities permitted under the Base Indenture and to set forth the terms thereof;
(i) to provide for additional Notes;
(j) to provide for the issuance of Notes in uncertificated form in addition to or in place of certificated Notes;
(k) to add to, change, or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change, or elimination (i) shall neither (A) apply to any Security of any series created prior to the execution of a supplemental indenture making such addition, change or elimination and entitled to the benefit of such provision nor (B) modify the rights of the Holder of any such Security with respect to such provision or (ii) shall become effective only when there is no such Security Outstanding;
(l) to make any amendment to the provisions of this Indenture relating to the transfer and legending of Notes; provided, however, that (a) compliance with this Indenture as so amended would not result in Notes being transferred in violation of applicable securities law and (b) such amendment does not materially and adversely affect the rights of Holders to transfer Notes;
(m) to make any change that does not adversely affect the rights of any Holder of Notes in any material respect as determined in good faith by the Company and evidenced by an Officers’ Certificate;
(n) to qualify or maintain qualification of this Indenture under the Trust Indenture Act; or
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(o) to comply with the rules and regulations of any securities exchange or automated quotation system on which the Notes may be listed or traded.
Section 9.2 Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Notes and other Securities of each series affected by such supplemental indenture, by Act of such Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into a supplemental indenture or indentures for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture as applicable to the Notes; provided, however, that no such supplemental indenture entered into pursuant to this Section 9.2 shall, without the consent of the Holder of each Outstanding Security affected by such supplemental indenture:
(a) change the Stated Maturity or due date of the principal of or interest payable on the Notes or change the currency in which such principal or interest is payable;
(b) reduce the principal amount of (or premium, if any) or the rate or amount of interest on the Notes;
(c) impair the right of any Holder to institute suit for the enforcement of any payment on with respect to the Notes;
(d) reduce the percentage in principal amount of the Outstanding Notes, the consent of the Holders of which is required (1) to modify or amend this Indenture or the Notes, or (2) to waive compliance with the provisions of or defaults under this Indenture and their consequences provided for in this Indenture;
(e) modify any of the provisions of this Section, Section 5.13 of the Base Indenture, or Section 10.8 of the Base Indenture, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each affected Outstanding Note, provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of Section 6.11(b) of the Base Indenture and Section 9.1(b) hereof;
(f) modify any of the provisions of this Indenture with respect to the subordination of any Note or of any series of Securities issued under the Base Indenture in a manner adverse to the Holders or adverse to the capital treatment of the Notes, except to clarify ambiguities or to meet regulatory requirements for the Notes to qualify as Tier 2 Capital or the equivalent for bank regulatory purposes; or
(g) modify or affect in any manner adverse to the Holders of the Notes the terms and conditions of the obligation of the Company in respect of the due and punctual payment of the principal of or premium or interest on the Notes.
Section 14.11 Modification of Subordination Provisions.
Anything in Article IX of the Base Indenture or elsewhere contained in this Indenture to the contrary notwithstanding, no modification or amendment of this Indenture that adversely affects the superior position of any holder of Senior Debt shall be effective against any such holder of Senior Debt unless such holder of Senior Debt has consented to such modification or amendment.
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Article X
TRUSTEE MATTERS
With respect to the Notes only, Sections 5.7, 5.12, 6.2, 6.3 and 6.10 of the Base Indenture are hereby replaced with the following:
Section 5.7. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy under this Indenture, unless:
| (1) | such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series; |
| (2) | the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee under the Indenture; |
| (3) | such Holder or Holders have offered to the Trustee indemnity satisfactory to the Trustee against the costs, expenses, and liabilities to be incurred in compliance with such request; |
| (4) | the Trustee for 60 days after its receipt of such notice, request, and offer of indemnity has failed to institute any such proceeding; and |
| (5) | no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the outstanding Securities of that series; |
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb, or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner provided in this Indenture and for the equal and ratable benefit of all of such Holders.
Section 5.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of any series 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 the Securities of such series, provided that
| (1) | such direction shall not be in conflict with any rule of law or with this Indenture, |
| (2) | the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and |
| (3) | the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer or Officers of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability. |
Upon receipt by the Trustee of any such direction with respect to Securities of a series all or part of which is represented by a temporary global Security or a permanent global Security, the Trustee shall establish a record date for determining holders of Outstanding Securities of such series entitled to join in such direction, which record date shall be at the close of business on the day the Trustee receives such direction. The holders on such record date, or their duly designated proxies, and only such persons, shall be entitled to join in such direction, whether or not such holders remain holders after such record date, provided that, unless such majority in principal amount shall have been obtained prior to the day which is 90 days after such record date, such direction shall automatically and without further action by any holder be cancelled 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 direction identical to a direction which has been cancelled 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 5.12.
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Section 6.2. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series, the Trustee shall transmit by first-class mail, postage prepaid, to all Holders of Securities of such series, as their names and addresses appear in the Security Register (or in case that a Depositary (or a nominee thereof) is a Holder of Securities issued in the form of Global Securities, then with respect to such Securities give by electronic, email or other means as such be acceptable to such Depositary), notice of such default hereunder actually known to a Responsible Officer of the Trustee, unless such default shall have been cured or waived; provided, however, that except in the case of default in the payment of the principal of or the interest on any of the Securities of such series, or in the payment of any sinking fund installment or analogous payment on such series, 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 Holders of such series. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
Section 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
| (a) | the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, judgment, bond, debenture, note, other evidence of indebtedness, or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties; | |
| (b) | any request or direction of the Company mentioned in this Indenture shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; | |
| (c) | whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering, or omitting any action under this Indenture, the Trustee (unless other evidence be specifically prescribed in this Indenture) may request and, in the absence of bad faith on its part, and conclusively rely upon an Officers’ Certificate and/or an Opinion of Counsel; | |
| (d) | the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered, or omitted by it under this Indenture in good faith and in reliance on such advice or Opinion of Counsel; | |
| (e) | the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses, and liabilities which might be incurred by it in compliance with such request or direction; | |
| (f) | the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, judgment, bond, debenture, note, other evidence of indebtedness, or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records, and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation; |
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| (g) | the Trustee may execute any of the trusts or powers or perform any duties under this Indenture either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it; | |
| (h) | the 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 Indenture; | |
| (i) | the Trustee shall not be charged with knowledge of any default or Event of Default with respect to the Securities unless written notice of such default or Event of Default shall have been given to a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee by the Company or by any Holder of the Securities, and such notice references the Securities and this Indenture and states that it is a notice of default or Event of Default; | |
| (j) | the permissive rights of the Trustee enumerated herein shall not be construed as duties; | |
| (k) | the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder; | |
| (l) | the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded; | |
| (m) | anything in this Indenture notwithstanding, in no event shall the Trustee be liable for special, indirect, incidental, punitive or consequential loss or damage of any kind whatsoever (including but not limited to loss of profit), even if the Trustee has been advised as to the likelihood of such loss or damage and regardless of the form of action; and | |
| (n) | the Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its control, including, without limitation, any provision of any law or regulation or any act of any governmental authority, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; pandemics; riots; interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; accidents; labor disputes; acts of civil or military authority and governmental action or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility. |
Section 6.10 Resignation and Removal; Appointment of Successor.
| (a) | No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11. | |
| (b) | The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice of such resignation to the Company. | |
| (c) | The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, by not less than 30 days written notice delivered to the Trustee and to the Company. |
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| (d) | If at any time: | ||
| (1) | the Trustee shall fail to comply with Section 6.8 after written request for such compliance by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or | ||
| (2) | the Trustee shall cease to be eligible under Section 6.9 and shall fail to resign after written request by the Company or by any such Holder, or | ||
| (3) | the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation, or liquidation, | ||
| then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (ii) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees. | |||
| (e) | If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation or removal, the Trustee resigning or being removed may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. | ||
| (f) | If the Trustee shall resign, be removed, or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal, or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, immediately upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. | ||
| (g) | The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.6. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office. | ||
[Signature page follows on next page]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed all as of the day and year first above written.
| BERKSHIRE HILLS BANCORP, INC. | ||
| By: | /s/ Subhadeep Basu | |
| Name: | Subhadeep Basu | |
| Title: | Senior Executive Vice President and Chief Financial Officer |
[Signature page to First Supplemental Indenture]
| WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ Michael H. Wass | |
| Name: | Michael H. Wass | |
| Title: | Vice President |
[Signature page to First Supplemental Indenture]
Exhibit A
[FORM OF GLOBAL NOTE]
BERKSHIRE HILLS BANCORP, INC.
5.50% FIXED-TO-FLOATING RATE SUBORDINATED NOTE DUE JULY 1, 2032
No. 1 $100,000,000 | CUSIP No. 084680AB3 ISIN No. US084680AB32 |
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE REFERRED TO IN THIS SECURITY AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR ITS NOMINEE. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE OR A SUCCESSOR OF SUCH DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO BERKSHIRE HILLS BANCORP, INC. (THE “COMPANY”) OR ITS AGENT FOR REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR 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 SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER OBLIGATION OF BERKSHIRE BANK AND IT IS NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION (“FDIC”) OR ANY OTHER GOVERNMENT AGENCY.
THIS SECURITY IS SUBORDINATED, AS TO PRINCIPAL, INTEREST AND PREMIUM, AND ADDITIONAL AMOUNTS, IF ANY, TO ALL “SENIOR DEBT” OF THE COMPANY, INCLUDING ALL OBLIGATIONS TO THE COMPANY’S DEPOSITORS AND GENERAL CREDITORS OR TRADE CREDITORS. THIS SECURITY IS NOT SECURED BY ANY ASSETS OF THE COMPANY OR BY THE ASSETS OF ANY OF ITS SUBSIDIARIES OR AFFILIATES AND IS NOT GUARANTEED BY ANY OF COMPANY’S SUBSIDIARIES OR AFFILIATES.
THIS SECURITY IS ISSUABLE IN MINIMUM DENOMINATIONS OF $1,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF. AS PROVIDED IN THE INDENTURE AND SUBJECT TO CERTAIN LIMITATIONS THEREIN SET FORTH, SECURITIES OF THIS SERIES ARE EXCHANGEABLE FOR A LIKE AGGREGATE PRINCIPAL AMOUNT OF SECURITIES OF SUCH SERIES OF A DIFFERENT AUTHORIZED DENOMINATION, AS REQUESTED BY THE HOLDER SURRENDERING THE SAME.
[Signature page to First Supplemental Indenture]
Berkshire Hills Bancorp, Inc., a Delaware corporation, and any successor thereto, as provided below (the “Company”), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of one hundred million United States dollars ($100,000,000) on July 1, 2032 (the “Stated Maturity Date”), unless redeemed prior to such date. This Security will bear interest at a fixed rate of 5.50% per annum from and including June 30, 2022, to, but excluding, July 1, 2027 (the “Fixed Rate Period”), unless redeemed prior to such date. Interest accrued on this Security during the Fixed Rate Period will be payable semi-annually in arrears on January 1 and July 1 of each year (each such date, a “Fixed Rate Interest Payment Date”), with the first such Fixed Rate Interest Payment Date being January 1, 2023, and the last such Fixed Rate Interest Payment Date being July 1, 2027, unless redeemed prior to such date. This Security will bear interest at a floating per annum interest rate from and including July 1, 2027, to, but excluding, the Stated Maturity Date or any earlier redemption date (the “Redemption Date”) (such period, the “Floating Rate Period”). The floating interest rate will be reset quarterly, and the interest rate for any Floating Interest Period will be equal to the then-current Benchmark plus 249 basis points. During the Floating Rate Period, interest on this Security will be payable quarterly in arrears on January 1, April 1, July 1 and October 1 of each year (each such date, a “Floating Rate Interest Payment Date”, and together with a Fixed Rate Interest Payment Date, an “Interest Payment Date”), with the first such Floating Rate Interest Payment Date being October 1, 2027, and the last such Floating Rate Interest Payment Date being the Stated Maturity Date, unless redeemed prior to such date. Notwithstanding the foregoing, if the Benchmark is less than zero, the Benchmark shall be deemed to be zero. The interest so payable, and punctually paid or duly provided for on any Interest Payment Date shall, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the fifteenth calendar day (whether or not a Business Day) prior to such Interest Payment Date; provided, however, that interest payable at Maturity shall be paid to the Person to whom principal shall be payable.
The interest payable on any Fixed Rate Interest Payment Date during the Fixed Rate Period will be computed on the basis of a 360-day year consisting of twelve 30-day months to, but excluding, July 1, 2027. The interest payable on any Floating Rate Interest Payment Date during the Floating Rate Period will be computed on the basis of a 360-day year and the number of days actually elapsed. If a Fixed Rate Interest Payment Date or the Stated Maturity Date for this Security falls on a day that is not a Business Day, the interest payable on such Interest Payment Date or the payment of principal and interest on the Stated Maturity Date will be paid on the next succeeding Business Day, but the payments made on such dates will be treated as being made on the date that the payment was first due and the Holder of this Security will not be entitled to any further interest or other payment. If a Floating Rate Interest Payment Date falls on a day that is not a Business Day, then such Floating Rate Interest Payment Date will be postponed to the next succeeding Business Day, unless such day falls in the next succeeding calendar month, in which case such Floating Rate Interest Payment Date will be accelerated to the immediately preceding Business Day, and, in each such case, the amounts payable on such Business Day will include interest accrued to, but excluding, such Business Day.
No sinking fund will be provided with respect to this Security. In no event shall any Holder of this Security have the right to require the Company to call, redeem or repurchase this Security, in whole or in part prior to maturity. Nothing in this paragraph, however, shall limit the ability of the Holder of this Security to enforce its rights to the payment of principal and premium, if any, and interest on the Security at maturity as provided herein.
Payment of the principal of and interest on this Security will be made at the Corporate Trust Office of the Trustee, or such other office or agency designated by the Company for that purpose, in U.S. Dollars; provided that, at the option of the Company, interest on this Security may be paid by mailing a check to the address of the Person entitled to such interest as such address shall appear in the Security Register.
Under certain conditions, the Company may, without notice to or the consent of the Holder of this Security, create and issue additional notes having the same ranking, interest rate, maturity date and other terms as this Security (other than the date of issuance, the issue price, the initial interest accrual date and the first Interest Payment Date), provided that no such additional notes may be issued unless (1) the additional notes are fungible with this Security for United States federal securities law purposes, (2) (a) the additional notes are issued pursuant to a “qualified reopening” of this Security for United States federal income tax purposes, or (b) this Security was, and the additional notes are, issued without any original issue discount for United States federal income tax purposes and (3) the additional notes have the same CUSIP number as this Security. No additional notes may be issued if any Event of Default has occurred and is continuing with respect to this Security. Such additional notes shall be consolidated and form a single series with this Security for all purposes under the Indenture.
Any “depository institution,” as defined in Section 3(c)(1) of the Federal Deposit Insurance Act, which holds this Security (or beneficial interest therein) shall be deemed to have agreed by acquiring this Security (or such beneficial interest) to waive any rights to offset all or any portion of the indebtedness represented by this Security (or such beneficial interest) against any indebtedness or other obligations of such institution to the Company.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
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Unless the certificate of authentication hereon has been executed by the Trustee by manual signature of an authorized signatory, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by manual, facsimile or pdf.
| BERKSHIRE HILLS BANCORP, INC. | ||
| By: | ||
| Name: | Subhadeep Basu | |
| Title: | Senior Executive Vice President and Chief Financial Officer |
| Dated: June 30, 2022 |
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| WILMINGTON TRUST, NATIONAL ASSOCIATION, | |||
| as Trustee | |||
| By: | |||
| Authorized Signatory | |||
| Dated: June 30, 2022 | |||
[Signature Page to Global Note]
REVERSE OF SECURITY
This Security is one of a duly authorized issue of 5.50% Fixed-to-Floating Rate Subordinated Notes due 2032 of the Company (the “Securities”), issued and to be issued in one or more series under a Indenture, dated as of June 30, 2022 (the “Base Indenture”), as supplemented by that First Supplemental Indenture, dated as of June 30, 2022 (the “First Supplemental Indenture,” and together with the Base Indenture, the “Indenture”), between the Company and Wilmington Trust, National Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which the Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Trustee, the Company and the Holders of the Securities, and to which Indenture reference is hereby made for a statement of the terms upon which the Securities of this series designated on the face hereof are, and are to be, authenticated and delivered. By the terms of the Indenture, the Securities are issuable in series that may vary as to amount, date of maturity, rate of interest, rank and in any other respect provided in the Indenture.
The Company’s indebtedness evidenced by this Security is subordinate and junior in right of payment to all Senior Debt to the extent provided in the Indenture, and each Holder of this Security, by such Holder’s acceptance of this Security, covenants and agrees to the subordination provided in the Indenture and shall be bound by the provisions of the Indenture. Senior Debt shall continue to be Senior Debt and entitled to the benefits of these subordination provisions irrespective of any amendment, modification, or waiver of any term of the Senior Debt or extension or renewal of the Senior Debt.
Each Holder hereof, by his, her or its acceptance hereof, waives all notice of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Debt, whether now outstanding or hereafter created, incurred, assumed or guaranteed, and waives reliance by each such Holder upon said provisions.
The Indenture contains provisions for defeasance of this Security upon compliance with certain conditions set forth in the Indenture.
If certain Events of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Any Event of Default with respect to this Security may be waived by the Holder hereof, as and if provided in the Indenture.
The Company may, at its option, redeem the Securities of this series, in whole at any time or in part from time to time, at a redemption price equal to 100% of the principal amount of the Securities to be redeemed plus accrued and unpaid interest to, but excluding, the Redemption Date, on any Interest Payment Date on or after July 1, 2027. The Company may also, at its option, redeem the Securities of this series before the Stated Maturity Date, in whole, but not in part, at any time, upon the occurrence of a Tier 2 Capital Event, a Tax Event or if the Company is required to register as an investment company pursuant to the Investment Company Act of 1940, as amended. Any such redemption will be at a redemption price equal to 100% of the principal amount of the Securities to be redeemed plus accrued and unpaid interest to, but excluding, the Redemption Date fixed by the Company.
Notwithstanding any of the foregoing, to the extent then required under or pursuant to applicable regulations of the Federal Reserve, this Security may not be repaid prior to the Stated Maturity Date without the prior written consent of the Federal Reserve. In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof. The provisions of Article XI of the Base Indenture and Article VII of the First Supplemental Indenture shall apply to the redemption of any Securities of this series by the Company.
In the event that any payment on the Securities of this series is subject to withholding of any U.S. federal income tax or other tax or assessment (as a result of a change in law or otherwise), the Company will not pay additional amounts with respect to such tax or assessment.
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No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium (if any) and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company maintained under Section 10.2 of the Base Indenture for such purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Nothing in this Security, express or implied, shall give to any person, other than the Holders of the Securities of this series, the parties hereto and their permitted successors hereunder, any benefit of any legal or equitable right, remedy or claim hereunder.
All notices under this Security shall be in writing and, in the case of the Company, addressed to the Company at 60 State Street, Boston, Massachusetts 02109, Attention: Corporate Secretary, or, in the case of the Trustee, addressed to the Trustee at Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Berkshire Hills Bancorp, Inc. Administrator or to such other address of the Trustee as the Trustee may notify the Holders of the Securities of this series. All notices to the Holder of this Security will be given to the Holder at its address as it appears in the Security Register.
All covenants and agreements by the Company in this Security and the Indenture shall bind the Company’s successors and assigns, including successors by operation of law resulting from a merger or consolidation of the Company, or successors resulting from the transfer of the Company’s assets and liabilities substantially or entirely, to another entity (“Successors”). Any Successor shall expressly assume in writing all the Company’s obligations hereunder prior to becoming a Successor, and upon becoming a Successor, shall perform all the Company’s obligations hereunder and make all payments due hereunder.
In case any provision in this Security shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
EACH OF THE COMPANY, THE TRUSTEE AND EACH HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF, HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS SECURITY, THE INDENTURE, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
This Security shall be governed by and construed in accordance with the laws of the State of New York (including but not limited to N.Y. General Obligations Law Section 5-1401 and any successor statute thereto), without regard to the conflicts of law provisions thereof.
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[FORM OF TRANSFER NOTICE]
To assign this Security, fill in the form below:
| (I) or (we) assign and transfer this Note to: | ||
| (Insert Assignee’s legal name) | ||
| (Insert assignee’s Soc. Sec. or tax I.D. no.) | ||
| (Print or type assignee’s name, address and zip code) |
and irrevocably appoint to transfer this Security on the books of the Company. The agent may substitute another to act for them.
Date:
| Your signature: | |
| (Sign exactly as your name appears on| the face of this Security) |
Signature Guarantee*:
*Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is $100,000,000. The following increases or decreases in the principal amount of this Global Note have been made:
| Date | Amount of decrease in principal amount of this Global Note | Amount of increase in principal amount of this Global Note | Principal amount of this Global Note following such decrease or increase | Signature of authorized signatory of Trustee or Custodian |
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