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Three and Six Month Renewable Unsecured Subordinated Notes One, Two, Three, Four, Five and Ten Year ... - page 35 / 40





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the indenture or the notes may be waived with the consent of the holders of a majority in principal amount of the then outstanding notes.

Notwithstanding the foregoing, an amendment or waiver will not be effective with respect to the notes held by a holder who has not consented if it has any of the following consequences:

  • reduces the aggregate principal amount of notes whose holders must consent to an amendment, sup- plement or waiver;

  • reduces the principal of or changes the fixed maturity of any note or alters the repurchase or redemp- tion provisions or the price at which we shall offer to repurchase or redeem the note;

  • reduces the rate of or changes the time for payment of interest, including default interest, on any note;

  • waives a default or event of default in the payment of principal or interest on the notes, except a res- cission of acceleration of the notes by the holders of at least a majority in aggregate principal amount of the then outstanding notes and a waiver of the payment default that resulted from such accelera- tion;.

  • makes any note payable in money other than that stated in this prospectus;

  • makes any change in the provisions of the indenture relating to waivers of past defaults or the rights of holders of notes to receive payments of principal of or interest on the notes;

  • makes any change to the subordination provisions of the indenture that has a material adverse effect on holders of notes;

  • modifies or eliminates the right of the estate of a holder or a holder to cause us to repurchase a note upon the death or total permanent disability of a holder; or

  • makes any change in the foregoing amendment and waiver provisions.

Notwithstanding the foregoing, without the consent of any holder of the notes, we and the trustee may amend or supplement the indenture or the notes:

  • to cure any ambiguity, defect or inconsistency;

  • to provide for assumption of our obligations to holders of the notes in the case of a merger, consolida- tion or sale of all or substantially all of our assets;

  • to provide for additional uncertificated or certificated notes;

  • to make any change that does not adversely affect the legal rights under the indenture of any such holder, including but not limited to an increase in the aggregate dollar amount of notes which may be outstanding under the indenture;

  • to modify our policy regarding repurchases elected by a holder of notes prior to maturity and our poli- cy regarding repurchase of the notes prior to maturity upon the death or total permanent disability of any holder of the notes, but such modifications shall not materially adversely affect any then outstand- ing notes; or

  • to comply with requirements of the SEC in order to effect or maintain the qualification of the inden- ture under the Trust Indenture Act.

The Trustee. Wells Fargo Bank, National Association has agreed to be the trustee under the indenture. The inden- ture contains certain limitations on the rights of the trustee, should it become one of our creditors, to obtain payment of claims in certain cases, or to realize on certain property received in respect of any claim as security or otherwise. The trustee will be permitted to engage in other transactions with us.

Subject to certain exceptions, the holders of a majority in principal amount of the then outstanding notes will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the trustee. The indenture provides that in case an event of default specified in the indenture shall occur and not be cured, the trustee will be required, in the exercise of its power, to use the degree of care of a reasonable person in the conduct of his own affairs. Subject to such provisions, the trustee will be under no obligation to exercise any of its rights or


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