AMENDED AND RESTATED TRUST AGREEMENT among HARLEYSVILLE NATIONAL CORPORATION, as Depositor WILMINGTON TRUST COMPANY, as Property Trustee WILMINGTON TRUST COMPANY, as Delaware Trustee and THE ADMINISTRATIVE TRUSTEES NAMED HEREIN as Administrative...
Exhibit
10.33
AMENDED
AND RESTATED TRUST AGREEMENT
among
HARLEYSVILLE
NATIONAL CORPORATION,
as
Depositor
WILMINGTON
TRUST COMPANY,
as
Property Trustee
WILMINGTON
TRUST COMPANY,
as
Delaware Trustee
and
THE
ADMINISTRATIVE TRUSTEES NAMED HEREIN
as
Administrative Trustees
________________
Dated
as
of August 22, 2007
HNC
STATUTORY TRUST IV
TABLE
OF CONTENTS
Page
ARTICLE
I. Defined Terms.............................................................................................................................................................1
SECTION
1.1. Definitions..................................................................................................................................................1
ARTICLE
II. The
Trust.....................................................................................................................................................................10
SECTION
2.1. Name.........................................................................................................................................................10
SECTION
2.2. Office of the
Delaware Trustee; Principal Place of
Business..........................................................................10
SECTION
2.3. Initial
Contribution of Trust Property; Fees, Costs and
Expenses..................................................................11
SECTION
2.4. Purposes
of
Trust........................................................................................................................................11
SECTION
2.5. Authorization
to Enter into Certain
Transactions...........................................................................................11
SECTION
2.6. Assets
of
Trust............................................................................................................................................14
SECTION
2.7. Title
to Trust
Property.................................................................................................................................14
ARTICLE
III. Payment
Account; Paying
Agents.............................................................................................................................15
SECTION
3.1. Payment
Account........................................................................................................................................15
SECTION
3.2. Appointment
of Paying
Agents.....................................................................................................................15
ARTICLE
IV. Distributions;
Redemption........................................................................................................................................16
SECTION
4.1. Distributions................................................................................................................................................16
SECTION
4.2. Redemption.................................................................................................................................................17
SECTION
4.3. Subordination
of Common
Securities............................................................................................................20
SECTION
4.4. Payment
Procedures....................................................................................................................................20
SECTION
4.5. Withholding
Tax...........................................................................................................................................21
SECTION
4.6. Tax
Returns and Other
Reports....................................................................................................................21
SECTION
4.7. Payment
of Taxes, Duties, Etc. of the
Trust...................................................................................................22
SECTION
4.8. Payments
under Indenture or Pursuant to
Direct
Actions...............................................................................22
SECTION
4.9. Exchanges....................................................................................................................................................22
SECTION
4.10. Calculation
Agent.........................................................................................................................................22
SECTION
4.11. Certain Accounting
Matters..........................................................................................................................23
ARTICLE
V.
Securities..................................................................................................................................................................24
SECTION
5.1. Initial
Ownership...........................................................................................................................................24
SECTION
5.2. Authorized
Trust
Securities............................................................................................................................24
SECTION 5.3. Issuance
of the Common Securities;
Subscription and Purchase of
Notes.......................................................24
SECTION
5.4. The
Securities
Certificates.............................................................................................................................24
SECTION
5.5. Rights
of
Holders..........................................................................................................................................25
SECTION
5.6. Book-Entry
Preferred
Securities....................................................................................................................25
SECTION 5.7. Registration
of Transfer and Exchange
of Preferred Securities
Certificates.......................................................27
SECTION 5.8. Mutilated,
Destroyed, Lost or Stolen
Securities
Certificates............................................................................29
SECTION
5.9. Persons
Deemed
Holders..............................................................................................................................29
SECTION
5.10. Cancellation..................................................................................................................................................30
SECTION
5.11. Ownership of Common
Securities by
Depositor.............................................................................................30
SECTION
5.12. Restricted
Legends........................................................................................................................................30
SECTION
5.13. Form of Certificate
of
Authentication..............................................................................................................33
i
ARTICLE
VI. Meetings;
Voting; Acts of
Holders..............................................................................................................................34
SECTION
6.1. Notice
of
Meetings.........................................................................................................................................34
SECTION
6.2. Meetings
of Holders of the Preferred
Securities...............................................................................................34
SECTION
6.3. Voting
Rights..................................................................................................................................................34
SECTION
6.4. Proxies,
Etc....................................................................................................................................................34
SECTION
6.5. Holder
Action by Written
Consent..................................................................................................................35
SECTION
6.6. Record
Date for Voting and Other
Purposes...................................................................................................35
SECTION
6.7. Acts
of
Holders..............................................................................................................................................35
SECTION
6.8. Inspection
of
Records.....................................................................................................................................36
SECTION
6.9. Limitations
on Voting
Rights............................................................................................................................36
SECTION
6.10. Acceleration of Maturity;
Rescission of
Annulment; Waivers of Past
Defaults.....................................................37
ARTICLE
VII. Representations
and
Warranties.................................................................................................................................39
SECTION 7.1. Representations
and Warranties of the
Property Trustee and the Delaware
Trustee...........................................39
SECTION
7.2. Representations
and Warranties of
Depositor...................................................................................................40
ARTICLE
VIII. The
Trustees.............................................................................................................................................................41
SECTION
8.1. Number
of
Trustees.........................................................................................................................................41
SECTION
8.2. Property
Trustee
Required...............................................................................................................................41
SECTION
8.3. Delaware
Trustee
Required..............................................................................................................................42
SECTION
8.4. Appointment
of Administrative
Trustees............................................................................................................42
SECTION
8.5. Duties
and
Responsibilities of the
Trustees.........................................................................................................43
SECTION
8.6. Notices
of Defaults and
Extensions....................................................................................................................44
SECTION
8.7. Certain
Rights of Property
Trustee.....................................................................................................................45
SECTION
8.8. Delegation
of
Power..........................................................................................................................................47
SECTION
8.9. May
Hold
Securities..........................................................................................................................................47
SECTION
8.10. Compensation; Reimbursement;
Indemnity.........................................................................................................47
SECTION
8.11. Resignation and Removal; Appointment
of
Successor ........................................................................................48 SECTION
8.12. Acceptance of Appointment
by
Successor.........................................................................................................50
SECTION
8.13. Merger, Conversion, Consolidation
or
Succession to
Business............................................................................50 SECTION
8.14. Not Responsible for Recitals
or
Issuance of
Securities........................................................................................50
SECTION
8.15. Property Trustee May
File Proofs of
Claim........................................................................................................50
SECTION
8.16. Reports to and from
the Property
Trustee..........................................................................................................51
ARTICLE
IX. Termination,
Liquidation and
Merger.............................................................................................................................52
SECTION
9.1. Dissolution
Upon Expiration
Date......................................................................................................................52
SECTION
9.2. Early
Termination..............................................................................................................................................52
SECTION
9.3. Termination.......................................................................................................................................................52
SECTION
9.4. Liquidation........................................................................................................................................................52
SECTION 9.5. Mergers,
Consolidations, Amalgamations
or Replacements of
Trust....................................................................54
ARTICLE
X. Information to
Purchaser.................................................................................................................................................55
SECTION
10.1. Depositor Obligations
to
Purchaser....................................................................................................................55
SECTION
10.2. Property Trustee’s Obligations to
Purchaser.......................................................................................................55
ARTICLE
XI. Miscellaneous
Provisions...............................................................................................................................................56
SECTION
11.1. Limitation
of Rights of
Holders.........................................................................................................................56
SECTION
11.2. Agreed
Tax Treatment of Trust and Trust
Securities.........................................................................................56
SECTION
11.3. Amendment....................................................................................................................................................56
SECTION
11.4. Separability.....................................................................................................................................................58
ii
SECTION
11.5. Governing
Law.................................................................................................................................................58
SECTION
11.6. Successors......................................................................................................................................................
58
SECTION
11.7. Headings..........................................................................................................................................................58
SECTION
11.8. Reports,
Notices and
Demands.........................................................................................................................58
SECTION
11.9. Agreement
Not to
Petition.................................................................................................................................59
Exhibit
A Certificate
of Trust of HNC Statutory Trust IV
Exhibit
B Form
of Common Securities Certificate
Exhibit
C Form
of Preferred Securities Certificate
Exhibit
D Junior
Subordinated Indenture
Exhibit
E Form
of Transferee Certificate to be Executed by Transferees other than
QIBs
Exhibit
F Form
of Transferor Certificate to be Executed by QIBs
Exhibit
G Form
of Financial Officer’s Certificate
Exhibit
H Officers’
Certificate pursuant to Section 8.16(a)
Schedule
A Calculation
of LIBOR
iii
AMENDED
AND RESTATED TRUST AGREEMENT, dated as of August 22, 2007, among (i)
Harleysville National Corporation, a Pennsylvania corporation (including any
successors or permitted assigns, the “Depositor”), (ii) Wilmington Trust
Company, a Delaware banking corporation, as property trustee (in such capacity,
the “Property Trustee”), (iii) Wilmington Trust Company, a Delaware banking
corporation, as Delaware trustee (in such capacity, the “Delaware Trustee”),
(iv) Xxxx X. Xxxxxxxx, an individual, Xxxxxxx X. High, an individual, and Xxxxxx
X. Xxxx, an individual, each of whose address is c/o Harleysville National
Corporation, 000 Xxxx Xx., Xxxxxxxxxxxx, XX 00000, as administrative
trustees (in such capacities, each an “Administrative Trustee” and,
collectively, the “Administrative Trustees” and, together with the Property
Trustee and the Delaware Trustee, the “Trustees”) and (v) the several Holders,
as hereinafter defined.
Witnesseth
Whereas,
the Depositor, the Property Trustee and the Delaware Trustee have heretofore
created a Delaware statutory trust pursuant to the Delaware Statutory Trust
Act
by entering into a Trust Agreement, dated as of August 20, 2007 (the “Original
Trust Agreement”), and by executing and filing with the Secretary of State of
the State of Delaware the Certificate of Trust, substantially in the form
attached as Exhibit A; and
Whereas,
the Depositor and the Trustees desire to amend and restate the Original Trust
Agreement in its entirety as set forth herein to provide for, among other
things, (i) the issuance of the Common Securities by the Trust to the Depositor,
(ii) the issuance and sale of the Preferred Securities by the Trust pursuant
to
the Purchase Agreement and (iii) the acquisition by the Trust from the Depositor
of all of the right, title and interest in and to the Notes;
Now,
Therefore, in consideration of the agreements and obligations set forth herein
and for other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Holders, hereby amends and restates the Original
Trust Agreement in its entirety and agrees as follows:
ARTICLE
I.
Defined
Terms
SECTION
1.1. Definitions.
For
all
purposes of this Trust Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(a) the
terms defined in this Article I have the meanings assigned to them in
this Article I;
(b) the
words “include”, “includes” and “including” shall be deemed to be followed by
the phrase “without limitation”;
(c) all
accounting terms used but not defined herein have the meanings assigned to
them
in accordance with United States generally accepted accounting
principles;
(d) unless
the context otherwise requires, any reference to an “Article”, a “Section”, a
“Schedule” or an “Exhibit” refers to an Article, a Section, a Schedule or an
Exhibit, as the case may be, of or to this Trust Agreement;
(e) the
words “hereby”, “herein”, “hereof” and “hereunder” and other words of similar
import refer to this Trust Agreement as a whole and not to any particular
Article, Section or other subdivision;
(f) a
reference to the singular includes the plural and vice versa; and
(g) the
masculine, feminine or neuter genders used herein shall include the masculine,
feminine and neuter genders.
“Act”
has
the meaning specified in Section 6.7.
“Additional
Interest” has the meaning specified in Section 1.1 of the
Indenture.
“Additional
Interest Amount” means, with respect to Trust Securities of a given Liquidation
Amount and/or a given period, the amount of Additional Interest paid by the
Depositor on a Like Amount of Notes for such period.
“Additional
Taxes” has the meaning specified in Section 1.1 of the
Indenture.
“Additional
Tax Sums” has the meaning specified in Section 10.5 of the
Indenture.
“Administrative
Trustee” means each of the Persons identified as an “Administrative Trustee” in
the preamble to this Trust Agreement, solely in each such Person’s capacity as
Administrative Trustee of the Trust and not in such Person’s individual
capacity, or any successor Administrative Trustee appointed as herein
provided.
“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For the purposes of this definition, “control”
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the
foregoing.
“Applicable
Depositary Procedures” means, with respect to any transfer or transaction
involving a Book-Entry Preferred Security, the rules and procedures of the
Depositary for such Book-Entry Preferred Security, in each case to the extent
applicable to such transaction and as in effect from time to time.
“Bankruptcy
Event” means, with respect to any Person:
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(a) the
entry of a decree or order by a court having jurisdiction in the premises (i)
judging such Person a bankrupt or insolvent, (ii) approving as properly filed
a
petition seeking reorganization, arrangement, adjudication or composition of
or
in respect of such Person under any applicable Bankruptcy Law, (iii) appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of such Person or of any substantial part of its property
or
(iv) ordering the winding up or liquidation of its affairs, and the continuance
of any such decree or order unstayed and in effect for a period of sixty (60)
consecutive days; or
(b) the
institution by such Person of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Bankruptcy Law, or the
consent by it to the filing of any such petition or to the appointment of a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of such Person or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission
by
it in writing of its inability to pay its debts generally as they become due
and
its willingness to be adjudicated a bankrupt or insolvent, or the taking of
corporate action by such Person in furtherance of any such action.
“Bankruptcy
Laws” means all Federal and state bankruptcy, insolvency, reorganization and
other similar laws, including the United States Bankruptcy Code.
“Book-Entry
Preferred Security” means a Preferred Security, the ownership and transfers of
which shall be made through book entries by a Depositary.
“Business
Day” means a day other than (a) a Saturday or Sunday, (b) a day on which banking
institutions in the City of New York are authorized or required by law or
executive order to remain closed or (c) a day on which the Corporate Trust
Office is closed for business.
“Calculation
Agent” has the meaning specified in Section 10.4 of the
Indenture.
“Capital
Disqualification Event” has the meaning specified in Section 1.1 of the
Indenture.
“Closing
Date” has the meaning specified in the Purchase Agreement.
“Code”
means the United States Internal Revenue Code of 1986, as amended.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act or, if at any time after the execution of this
Trust Agreement such Commission is not existing and performing the duties
assigned to it, then the body performing such duties at such time.
“Common
Securities Certificate” means a certificate evidencing ownership of Common
Securities, substantially in the form attached as Exhibit B.
-3-
“Common
Security” means a common security of the Trust, denominated as such and
representing an undivided beneficial interest in the assets of the Trust, having
a Liquidation Amount of $1,000 and having the terms provided therefor in this
Trust Agreement.
“Corporate
Trust Office” means the principal office of the Property Trustee at which any
particular time its corporate trust business shall be administered, which office
at the date of this Trust Agreement is located at Xxxxxx Square North, 0000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Capital Markets.
“Definitive
Preferred Securities Certificates” means Preferred Securities issued in
certificated, fully registered form that are not Global Preferred
Securities.
“Delaware
Statutory Trust Act” means Chapter 38 of Title 12 of the Delaware Code, 12 Del.
Code § 3801 et seq., or any successor statute thereto, in each case as amended
from time to time.
“Delaware
Trustee” means the Person identified as the “Delaware Trustee” in the preamble
to this Trust Agreement, solely in its capacity as Delaware Trustee of the
Trust
and not in its individual capacity, or its successor in interest in such
capacity, or any successor Delaware Trustee appointed as herein
provided.
“Depositary”
means an organization registered as a clearing agency under the Exchange Act
that is designated as Depositary by the Depositor or any successor
thereto. DTC will be the initial Depositary.
“Depositary
Participant” means a broker, dealer, bank, other financial institution or other
Person for whom from time to time the Depositary effects book-entry transfers
and pledges of securities deposited with the Depositary.
“Depositor”
has the meaning specified in the preamble to this Trust Agreement and any
successors and permitted assigns.
“Depositor
Affiliate” has the meaning specified in Section 4.9.
“Distribution
Date” has the meaning specified in Section 4.1(a)(i).
“Distributions”
means amounts payable in respect of the Trust Securities as provided in
Section 4.1.
“DTC”
means The Depository Trust Company or any successor thereto.
“Early
Termination Event” has the meaning specified in Section 9.2.
“Equity
Interests” means any of (a) the partnership interests (general or limited) in a
partnership, (b) the membership interests in a limited liability company or
(c)
the shares or stock interests (both common stock and preferred stock) in a
corporation.
-4-
“Event
of
Default” means any one of the following events (whatever the reason for such
event and 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) the
occurrence of a Note Event of Default; or
(b) default
by the Trust in the payment of any Distribution when it becomes due and payable,
and continuation of such default for a period of thirty (30) days;
or
(c) default
by the Trust in the payment of any Redemption Price of any Trust Security when
it becomes due and payable; or
(d) default
in the performance, or breach, in any material respect of any covenant or
warranty of the Trustees in this Trust Agreement (other than those specified
in
clause (b) or (c) above) and continuation of such default or breach for a period
of thirty (30) days after there has been given, by registered or certified
mail,
to the Trustees and to the Depositor by the Holders of at least twenty five
percent (25%) in aggregate Liquidation Amount of the Outstanding Preferred
Securities a written notice specifying such default or breach and requiring
it
to be remedied and stating that such notice is a “Notice of Default” hereunder;
or
(e) the
occurrence of a Bankruptcy Event with respect to the Property Trustee if a
successor Property Trustee has not been appointed within ninety (90) days
thereof.
“Exchange
Act” means the Securities Exchange Act of 1934, and any successor statute
thereto, in each case as amended from time to time.
“Expiration
Date” has the meaning specified in Section 9.1.
“Extension
Period” has the meaning specified in Section 4.1(a)(ii).
“Federal
Reserve” means the Board of Governors of the Federal Reserve System, the staff
thereof, or a Federal Reserve Bank, acting through delegated authority, in
each
case under the rules, regulations and policies of the Federal Reserve System,
or
if at any time after the execution of this Trust Agreement any such entity
is
not existing and performing the duties now assigned to it , any successor body
performing similar duties or functions.
“Fiscal
Year” shall be the fiscal year of the Trust, which shall be the calendar year,
or such other period as is required by the Code.
“Global
Preferred Security” means a Preferred Securities Certificate evidencing
ownership of Book-Entry Preferred Securities.
“Guarantee
Agreement” means the Guarantee Agreement executed and delivered by the Depositor
and Wilmington Trust Company, as guarantee trustee, contemporaneously with
the
execution and delivery of this Trust Agreement for the benefit of the holders
of
the Preferred Securities, as amended from time to time.
-5-
“Holder”
means a Person in whose name a Trust Security or Trust Securities are registered
in the Securities Register; any such Person shall be a beneficial owner within
the meaning of the Delaware Statutory Trust Act.
“Indemnified
Person” has the meaning specified in Section 8.10(c).
“Indenture”
means the Junior Subordinated Indenture executed and delivered by the Depositor
and the Note Trustee contemporaneously with the execution and delivery of this
Trust Agreement, for the benefit of the holders of the Notes, a copy of which
is
attached hereto as Exhibit D, as amended or supplemented from time to
time.
“Indenture
Redemption Price” has the meaning specified in Section
4.2(c).
“Interest
Payment Date” has the meaning specified in Section 1.1 of the
Indenture.
“Investment
Company Act” means the Investment Company Act of 1940, or any successor statute
thereto, in each case as amended from time to time.
“Investment
Company Event” has the meaning specified in Section 1.1 of the
Indenture.
“LIBOR”
has the meaning specified in Schedule A.
“LIBOR
Business Day” has the meaning specified in Schedule A.
“LIBOR
Determination Date” has the meaning specified in Schedule A.
“Lien”
means any lien, pledge, charge, encumbrance, mortgage, deed of trust, adverse
ownership interest, hypothecation, assignment, security interest or preference,
priority or other security agreement or preferential arrangement of any kind
or
nature whatsoever.
“Like
Amount” means (a) with respect to a redemption of any Trust Securities, Trust
Securities having a Liquidation Amount equal to the principal amount of Notes
to
be contemporaneously redeemed or paid at maturity in accordance with the
Indenture, the proceeds of which will be used to pay the Redemption Price of
such Trust Securities, (b) with respect to a distribution of Notes to Holders
of
Trust Securities in connection with a dissolution of the Trust, Notes having
a
principal amount equal to the Liquidation Amount of the Trust Securities of
the
Holder to whom such Notes are distributed and (c) with respect to any
distribution of Additional Interest Amounts to Holders of Trust Securities,
Notes having a principal amount equal to the Liquidation Amount of the Trust
Securities in respect of which such distribution is made.
“Liquidation
Amount” means the stated amount of $1,000 per Trust Security.
“Liquidation
Date” means the date on which assets are to be distributed to Holders in
accordance with Section 9.4(a) hereunder following dissolution of the
Trust.
“Liquidation
Distribution” has the meaning specified in Section 9.4(d).
-6-
“Majority
in Liquidation Amount of the Preferred Securities” means Preferred Securities
representing more than fifty percent (50%) of the aggregate Liquidation Amount
of all (or a specified group of) then Outstanding Preferred
Securities.
“Note
Event of Default” means any “Event of Default” specified in Section 5.1
of the Indenture.
“Note
Redemption Date” means, with respect to any Notes to be redeemed under the
Indenture, the date fixed for redemption of such Notes under the
Indenture.
“Note
Trustee” means the Person identified as the “Trustee” in the Indenture, solely
in its capacity as Trustee pursuant to the Indenture and not in its individual
capacity, or its successor in interest in such capacity, or any successor
Trustee appointed as provided in the Indenture.
“Notes”
means the Depositor’s Junior Subordinated Notes issued pursuant to the
Indenture.
“Officers’
Certificate” means a certificate signed by the Chief Executive Officer, the
President or an Executive Vice President, and by the Chief Financial Officer,
Treasurer or an Assistant Treasurer, of the Depositor, and delivered to the
Trustees. Any Officers’ Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement (other than the
certificate provided pursuant to Section 8.16(a)) shall
include:
(a)
a
statement by each officer signing the Officers’ Certificate that such officer
has read the covenant or condition and the definitions relating
thereto;
(b)
a
brief statement of the nature and scope of the examination or investigation
undertaken by such officer in rendering the Officers’ Certificate;
(c)
a
statement that such officer has made such examination or investigation as,
in
such officer’s opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d)
a
statement as to whether, in the opinion of such officer, such condition or
covenant has been complied with.
“Operative
Documents” means the Purchase Agreement, the Indenture, the Trust Agreement, the
Guarantee Agreement, the Notes and the Trust Securities.
“Opinion
of Counsel” means a written opinion of counsel, who may be counsel for, or an
employee of, the Depositor or any Affiliate of the Depositor.
“Original
Issue Date” means the date of original issuance of the Trust
Securities.
“Original
Trust Agreement” has the meaning specified in the recitals to this Trust
Agreement.
-7-
“Outstanding”,
when used with respect to any Trust Securities, means, as of the date of
determination, all Trust Securities theretofore executed and delivered under
this Trust Agreement, except:
(a)
Trust
Securities theretofore canceled by the Property Trustee or delivered to the
Property Trustee for cancellation;
(b)
Trust
Securities for which payment or redemption money in the necessary amount has
been theretofore deposited with the Property Trustee or any Paying Agent in
trust for the Holders of such Trust Securities; provided, that if such Trust
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(c)
Trust
Securities that have been paid or in exchange for or in lieu of which other
Trust Securities have been executed and delivered pursuant to the provisions
of
this Trust Agreement, unless proof satisfactory to the Property Trustee is
presented that any such Trust Securities are held by Holders in whose hands
such
Trust Securities are valid, legal and binding obligations of the
Trust;
provided,
that in determining whether the Holders of the requisite Liquidation Amount
of
the Outstanding Preferred Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Preferred
Securities owned by the Depositor, any Trustee or any Affiliate of the Depositor
or of any Trustee shall be disregarded and deemed not to be Outstanding, except
that (i) in determining whether any Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Preferred Securities that such Trustee knows to be so owned shall be so
disregarded and (ii) the foregoing shall not apply at any time when all of
the
Outstanding Preferred Securities are owned by the Depositor, one or more of
the
Trustees and/or any such Affiliate. Preferred Securities so owned that have
been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Administrative Trustees the pledgee’s right so to act
with respect to such Preferred Securities and that the pledgee is not the
Depositor, any Trustee or any Affiliate of the Depositor or of any
Trustee.
“Owner”
means each Person who is the beneficial owner of Book-Entry Preferred Securities
as reflected in the records of the Depositary or, if a Depositary Participant
is
not the beneficial owner, then the beneficial owner as reflected in the records
of the Depositary Participant.
“Paying
Agent” means any Person authorized by the Administrative Trustees to pay
Distributions or other amounts in respect of any Trust Securities on behalf
of
the Trust.
“Payment
Account” means a segregated non-interest-bearing corporate trust account
maintained by the Property Trustee for the benefit of the Holders in which
all
amounts paid in respect of the Notes will be held and from which the Property
Trustee, through the Paying Agent, shall make payments to the Holders in
accordance with Sections 3.1, 4.1 and 4.2.
“Person”
means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, company, limited
liability company, trust,
-8-
unincorporated association
or government, or any agency or political subdivision thereof, or any other
entity of whatever nature.
“Preferred
Security” means a preferred security of the Trust, denominated as such and
representing an undivided beneficial interest in the assets of the Trust, having
a Liquidation Amount of $1,000 and having the terms provided therefor in this
Trust Agreement.
“Preferred
Securities Certificate” means a certificate evidencing ownership of Preferred
Securities, substantially in the form attached as Exhibit C.
“Property
Trustee” means the Person identified as the “Property Trustee” in the preamble
to this Trust Agreement, solely in its capacity as Property Trustee of the
Trust
and not in its individual capacity, or its successor in interest in such
capacity, or any successor Property Trustee appointed as herein
provided.
“Purchase
Agreement” means the Purchase Agreement, dated as of August 22, 2007, executed
and delivered by the Trust, the Depositor and the Purchaser.
“Purchaser”
means Trapeza CDO XIII, Ltd., as purchaser of the Preferred Securities pursuant
to the Purchase Agreement, whose address is x/x Xxxxxx Xxxxxxx Xxxxxxx, X.X.
Xxx
0000 XX, Xxxxxxxxxx House, South Church Street, Xxxxxx Town, Grand Cayman,
Cayman Islands, or any other address previously furnished by the
Purchaser.
“QIB”
means a “qualified institutional buyer” as defined in Rule 144A under the
Securities Act.
“Redemption
Date” means, with respect to any Trust Security to be redeemed, the date fixed
for such redemption by or pursuant to this Trust Agreement; provided, that
each
Note Redemption Date and the stated maturity (or any date of principal repayment
upon early maturity) of the Notes shall be a Redemption Date for a Like Amount
of Trust Securities.
“Redemption
Price” means, with respect to any Trust Security, the Liquidation Amount of such
Trust Security, plus accumulated and unpaid Distributions to the Redemption
Date, plus the related amount of the premium, if any, paid by the Depositor
upon
the concurrent redemption or payment at maturity of a Like Amount of
Notes.
“Reference
Banks” has the meaning specified in Schedule A.
“Responsible
Officer” means, with respect to the Property Trustee, any Senior Vice President,
any Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer or
Assistant Trust Officer or any other officer in the Corporate Trust Office
of
the Property Trustee with direct responsibility for the administration of this
Trust Agreement and also means, with respect to a particular corporate trust
matter, any other officer of the Property Trustee to whom such matter is
referred because of that officer’s knowledge of and familiarity with the
particular subject.
“Securities
Act” means the Securities Act of 1933, and any successor statute thereto, in
each case as amended from time to time.
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“Securities
Certificate” means any one of the Common Securities Certificates or the
Preferred Securities Certificates.
“Securities
Register” and “Securities Registrar” have the respective meanings specified in
Section 5.7.
“Special
Event Redemption Price” has the meaning specified in Section 11.2 of the
Indenture.
“Successor
Securities” has the meaning specified in Section 9.5(a).
“Tax
Event” has the meaning specified in Section 1.1 of the
Indenture.
“Trust”
means the Delaware statutory trust known as “HNC Statutory Trust IV,” which was
created on August 20, 2007, under the Delaware Statutory Trust Act pursuant
to
the Original Trust Agreement and the filing of the Certificate of Trust, and
continued pursuant to this Trust Agreement.
“Trust
Agreement” means this Amended and Restated Trust Agreement, including all
Schedules and Exhibits (other than Exhibit D), as the same may be
modified, amended or supplemented from time to time in accordance with the
applicable provisions hereof.
“Trustees”
means the Administrative Trustees, the Property Trustee and the Delaware
Trustee, each as defined in this Article I.
“Trust
Property” means (a) the Notes, (b) any cash on deposit in, or owing to, the
Payment Account and (c) all proceeds and rights in respect of the foregoing
and
any other property and assets for the time being held or deemed to be held
by
the Property Trustee pursuant to the trusts of this Trust
Agreement.
“Trust
Security” means any one of the Common Securities or the Preferred
Securities.
ARTICLE
II.
The
Trust
SECTION
2.1. Name.
The
trust
continued hereby shall be known as “HNC Statutory Trust IV,” as such name may be
modified from time to time by the Administrative Trustees following written
notice to the Holders of Trust Securities and the other Trustees, in which
name
the Trustees may conduct the business of the Trust, make and execute contracts
and other instruments on behalf of the Trust and xxx and be sued.
SECTION
2.2. Office
of
the Delaware Trustee; Principal Place of Business.
The
address of the Delaware Trustee in the State of Delaware is Xxxxxx Square North,
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate
Capital
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Markets,
or
such other address in the State of Delaware as the Delaware Trustee may
designate by written notice to the Holders, the Depositor, the Property Trustee
and the Administrative Trustees. The principal executive office of the Trust
is
c/o Harleysville National Corporation, 000 Xxxx Xx., Xxxxxxxxxxxx,
XX 00000, Attention: Chief Financial Officer, as such address may be
changed from time to time by the Administrative Trustees following written
notice to the Holders and the other Trustees.
SECTION
2.3. Initial
Contribution of Trust Property; Fees, Costs and Expenses.
The
Property Trustee acknowledges receipt from the Depositor in connection with
the
Original Trust Agreement of the sum of ten dollars ($10), which constituted
the
initial Trust Property. The Depositor shall pay all fees, costs and expenses
of
the Trust (except with respect to the Trust Securities) as they arise or shall,
upon request of any Trustee, promptly reimburse such Trustee for any such fees,
costs and expenses paid by such Trustee. The Depositor shall make no claim
upon
the Trust Property for the payment of such fees, costs or expenses.
SECTION
2.4. Purposes
of Trust.
(a) The
exclusive purposes and functions of the Trust are to (i) issue and sell Trust
Securities and use the proceeds from such sale to acquire the Notes and
(ii) engage in only those activities necessary or incidental thereto.
The Delaware Trustee, the Property Trustee and the Administrative Trustees
are
trustees of the Trust, and have all the rights, powers and duties to the extent
set forth herein. The Trustees hereby acknowledge that they are
trustees of the Trust.
(b) So
long
as this Trust Agreement remains in effect, the Trust (or the Trustees acting
on
behalf of the Trust) shall not undertake any business, activities or transaction
except as expressly provided herein or contemplated hereby. In particular,
the
Trust (or the Trustees acting on behalf of the Trust) shall not (i) acquire
any
investments or engage in any activities not authorized by this Trust Agreement,
(ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise
dispose of any of the Trust Property or interests therein, including to Holders,
except as expressly provided herein, (iii) incur any indebtedness for borrowed
money or issue any other debt, (iv) take or consent to any action that would
result in the placement of a Lien on any of the Trust Property, (v) take or
consent to any action that would reasonably be expected to cause (or, in the
case of the Property Trustee, to the actual knowledge of a Responsible Officer
would cause) the Trust to become taxable as a corporation or classified as
other
than a grantor trust for United States federal income tax purposes, (vi) take
or
consent to any action that would cause (or, in the case of the Property Trustee,
to the actual knowledge of a Responsible Officer would cause) the Notes to
be
treated as other than indebtedness of the Depositor for United States federal
income tax purposes or (vii) take or consent to any action that would cause
(or,
in the case of the Property Trustee, to the actual knowledge of a Responsible
Officer would cause) the Trust to be deemed to be an “investment company”
required to be registered under the Investment Company Act.
SECTION
2.5. Authorization
to Enter into Certain Transactions.
(a) The
Trustees shall conduct the affairs of the Trust in accordance with and subject
to the terms of this Trust Agreement. In accordance with the following
provisions (i) and (ii), the
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Trustees
shall have the authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to the Trustees, under this Trust
Agreement, and to perform all acts in furtherance thereof, including the
following:
(i) As
among
the Trustees, each Administrative Trustee shall severally have the power,
authority and authorization to act on behalf of the Trust with respect to the
following matters:
(A) the
issuance and sale of the Trust Securities;
(B) to
cause
the Trust to enter into, and to execute, deliver and perform on behalf of the
Trust, such agreements, documents, instruments, certificates and other writings
as may be necessary or desirable in connection with the purposes and function
of
the Trust, including, without limitation, a common securities subscription
agreement and a junior subordinated note subscription agreement and to cause
the
Trust to perform under the Purchase Agreement;
(C) assisting
in the sale of the Preferred Securities in one or more transactions exempt
from
registration under the Securities Act, and in compliance with applicable state
securities or blue sky laws;
(D) assisting
in the sending of notices (other than notices of default) and other information
regarding the Trust Securities and the Notes to the Holders in accordance with
this Trust Agreement;
(E) the
appointment of a successor Paying Agent and Calculation Agent in accordance
with
this Trust Agreement;
(F) execution
and delivery of the Trust Securities on behalf of the Trust in accordance with
this Trust Agreement;
(G) execution
and delivery of closing certificates, if any, pursuant to the Purchase
Agreement;
(H) preparation
and filing of all applicable tax returns and tax information reports that are
required to be filed on behalf of the Trust;
(I) establishing
a record date with respect to all actions to be taken hereunder that require
a
record date to be established, except as provided in Section
6.10(a);
(J) unless
otherwise required by the Delaware Statutory Trust Act, to execute on behalf
of
the Trust (either acting alone or together with the other Administrative
Trustees) any documents and other writings that such Administrative Trustee
has
the power to execute pursuant to this Trust Agreement; and
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(K) the
taking of any action incidental to the foregoing as such Administrative Trustee
may from time to time determine is necessary or advisable to give effect to
the
terms of this Trust Agreement.
(ii) As
among
the Trustees, the Property Trustee shall have the power, authority and
authorization to act on behalf of the Trust with respect to the following
matters:
(A) the
receipt and holding of legal title of the Notes;
(B) the
establishment of the Payment Account;
(C) the
receipt of interest, principal and any other payments made in respect of the
Notes and the holding of such amounts in the Payment Account;
(D) the
distribution through the Paying Agent of amounts distributable to the Holders
in
respect of the Trust Securities;
(E) the
exercise of all of the rights, powers and privileges of a holder of the Notes
in
accordance with the terms of this Trust Agreement;
(F) the
sending of notices of default and other information regarding the Trust
Securities and the Notes to the Holders in accordance with this Trust
Agreement;
(G) the
distribution of the Trust Property in accordance with the terms of this Trust
Agreement;
(H) to
the
extent provided in this Trust Agreement, the winding up of the affairs of and
liquidation of the Trust and the preparation, execution and filing of the
certificate of cancellation of the Trust with the Secretary of State of the
State of Delaware;
(I) application
for a taxpayer identification number for the Trust;
(J) the
authentication of the Preferred Securities as provided in this Trust Agreement;
and
(K) the
taking of any action incidental to the foregoing as the Property Trustee may
from time to time determine is necessary or advisable to give effect to the
terms of this Trust Agreement and protect and conserve the Trust Property for
the benefit of the Holders (without consideration of the effect of any such
action on any particular Holder).
(b) In
connection with the issue and sale of the Preferred Securities, the Depositor
shall have the right and responsibility to assist the Trust with respect to,
or
effect on behalf of the Trust, the following (and any actions taken by the
Depositor in furtherance of the following prior to the date of this Trust
Agreement are hereby ratified and confirmed in all respects):
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(i) the
negotiation of the terms of, and the execution and delivery of, the Purchase
Agreement providing for the sale of the Preferred Securities in one or more
transactions exempt from registration under the Securities Act, and in
compliance with applicable state securities or blue sky laws; and
(ii) the
taking of any other actions necessary or desirable to carry out any of the
foregoing activities.
(c) Notwithstanding
anything herein to the contrary, the Administrative Trustees are authorized
and
directed to conduct the affairs of the Trust and to operate the Trust so that
the Trust will not be taxable as a corporation or classified as other than
a
grantor trust for United States federal income tax purposes, so that the Notes
will be treated as indebtedness of the Depositor for United States federal
income tax purposes and so that the Trust will not be deemed to be an
“investment company” required to be registered under the Investment Company Act.
In this connection, each Administrative Trustee is authorized to take any
action, not inconsistent with applicable law, the Certificate of Trust or this
Trust Agreement, that such Administrative Trustee determines in his or her
discretion to be necessary or desirable for such purposes, as long as such
action does not adversely affect in any material respect the interests of the
Holders of the Outstanding Preferred Securities. In no event shall
the Administrative Trustees be liable to the Trust or the Holders for any
failure to comply with this Section 2.5 to the extent that such failure
results solely from a change in law or regulation or in the interpretation
thereof.
(d) Any
action taken by a Trustee in accordance with its powers shall constitute the
act
of and serve to bind the Trust. In dealing with any Trustee acting on
behalf of the Trust, no Person shall be required to inquire into the authority
of such Trustee to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of any Trustee as
set
forth in this Trust Agreement.
SECTION
2.6. Assets
of
Trust.
The
assets of the Trust shall consist of the Trust Property.
SECTION
2.7. Title
to
Trust Property.
(a) Legal
title to all Trust Property shall be vested at all times in the Property Trustee
and shall be held and administered by the Property Trustee in trust for the
benefit of the Trust and the Holders in accordance with this Trust
Agreement.
(b) The
Holders shall not have any right or title to the Trust Property other than
the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement.
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ARTICLE
III.
Payment
Account; Paying Agents
SECTION
3.1. Payment
Account.
(a) On
or
prior to the Closing Date, the Property Trustee shall establish the Payment
Account. The Property Trustee and the Paying Agent shall have exclusive control
and sole right of withdrawal with respect to the Payment Account for the purpose
of making deposits in and withdrawals from the Payment Account in accordance
with this Trust Agreement. All monies and other property deposited or held
from
time to time in the Payment Account shall be held by the Property Trustee in
the
Payment Account for the exclusive benefit of the Holders and for Distribution
as
herein provided.
(b) The
Property Trustee shall deposit in the Payment Account, promptly upon receipt,
all payments of principal of or interest on, and any other payments with respect
to, the Notes. Amounts held in the Payment Account shall not be invested by
the
Property Trustee pending distribution thereof.
SECTION
3.2. Appointment
of Paying Agents.
The
Property Trustee is appointed as the initial Paying Agent and hereby accepts
such appointment. The Paying Agent shall make Distributions to Holders from
the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account solely for the
purpose of making the Distributions referred to above. The Administrative
Trustees may revoke such power and remove the Paying Agent in their sole
discretion. Any Person acting as Paying Agent shall be permitted to resign
as
Paying Agent upon thirty (30) days’ prior written notice to the Administrative
Trustees and the Property Trustee. If the Property Trustee shall no longer
be
the Paying Agent or a successor Paying Agent shall resign or its authority
to
act be revoked, the Administrative Trustees shall appoint a successor (which
shall be a bank or trust company) to act as Paying Agent. Such
successor Paying Agent appointed by the Administrative Trustees shall execute
and deliver to the Trustees an instrument in which such successor Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
will hold all sums, if any, held by it for payment to the Holders in trust
for
the benefit of the Holders entitled thereto until such sums shall be paid to
such Holders. The Paying Agent shall return all unclaimed funds to the Property
Trustee and upon removal of a Paying Agent such Paying Agent shall also return
all funds in its possession to the Property Trustee. The provisions of
Article VIII shall apply to the Property Trustee also in its role as
Paying Agent, for so long as the Property Trustee shall act as Paying Agent
and,
to the extent applicable, to any other Paying Agent appointed hereunder. Any
reference in this Trust Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise.
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ARTICLE
IV.
Distributions;
Redemption
SECTION
4.1. Distributions.
(a) The
Trust
Securities represent undivided beneficial interests in the Trust Property,
and
Distributions (including any Additional Interest Amounts) will be made on the
Trust Securities at the rate and on the dates that payments of interest
(including any Additional Interest) are made on the Notes.
Accordingly:
(i) Distributions
on the Trust Securities shall be cumulative, and shall accumulate whether or
not
there are funds of the Trust available for the payment of Distributions.
Distributions shall accumulate from August 22, 2007, and, except as provided
in
clause (ii) below, shall be payable quarterly in arrears on January 30,
April 30, July 30 and October 30 of each year, commencing on October 30,
2007. If any date on which a Distribution is otherwise payable on the
Trust Securities is not a Business Day, then the payment of such Distribution
shall be made on the next succeeding Business Day (and no interest shall accrue
in respect of the amounts whose payment is so delayed for the period
from and after each such date until the next succeeding Business Day), except
that, if such Business Day falls in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case,
with the same force and effect as if made on such date (each date on which
Distributions are payable in accordance with this Section 4.1(a)(i), a
“Distribution Date”);
(ii) in
the
event (and to the extent) that the Depositor exercises its right under the
Indenture to defer the payment of interest on the Notes, Distributions on the
Trust Securities shall be deferred. Under the Indenture, so long as
no Note Event of Default pursuant to paragraphs (c), (e),
(f), (g) or (h) of Section 5.1 of the Indenture has
occurred and is continuing, the Depositor shall have the right, at any time
and
from time to time during the term of the Notes, to defer the payment of interest
on the Notes for a period of up to twenty (20) consecutive quarterly interest
payment periods (each such extended interest payment period, an “Extension
Period”), during which Extension Period no interest on the Notes shall be due
and payable (except any Additional Tax Sums that may be due and
payable). No interest on the Notes shall be due and payable during an
Extension Period, except at the end thereof, but each installment of interest
that would otherwise have been due and payable during such Extension Period
shall bear Additional Interest (to the extent payment of such interest would
be
legally enforceable) at a fixed rate per annum equal to 6.35% through the
Interest Payment Date in October 2012 and a variable rate per annum, reset
quarterly, equal to LIBOR plus 1.28%, thereafter, compounded quarterly, from
the
dates on which amounts would have otherwise been due and payable until paid
or
until funds for the payment thereof have been made available for
payment. If Distributions are deferred, the deferred Distributions
(including Additional Interest Amounts) shall be paid on the date that the
related Extension Period terminates, to Holders of the Trust Securities as
they
appear on the books and records of the Trust on the record date immediately
preceding such termination date.
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(iii) Distributions
shall accumulate in respect of the Trust Securities at a fixed rate per annum
equal to 6.35% of the Liquidation Amount of the Trust Securities through the
Distribution Date in October 2012 and a variable rate per annum, reset
quarterly, equal to LIBOR plus 1.28%, of the Liquidation Amount of the Trust
Securities thereafter, such rate being the rate of interest payable on the
Notes. LIBOR shall be determined by the Calculation Agent in accordance with
Schedule A. The amount of Distributions payable for any Distribution
period shall be computed and paid on the basis of a 360-day year and the actual
number of days elapsed in the relevant Distribution period. The
amount of Distributions payable for any period shall include any Additional
Interest Amounts in respect of such period; and
(iv) Distributions
on the Trust Securities shall be made by the Paying Agent from the Payment
Account and shall be payable on each Distribution Date only to the extent that
the Trust has funds then on hand and available in the Payment Account for the
payment of such Distributions.
(b) Distributions
on the Trust Securities with respect to a Distribution Date shall be payable
to
the Holders thereof as they appear on the Securities Register for the Trust
Securities at the close of business on the relevant record date, which shall
be
at the close of business on the fifteenth day (whether or not a Business Day)
preceding the relevant Distribution Date. Distributions payable on
any Trust Securities that are not punctually paid on any Distribution Date
as a
result of the Depositor having failed to make an interest payment under the
Notes will cease to be payable to the Person in whose name such Trust Securities
are registered on the relevant record date, and such defaulted Distributions
and
any Additional Interest Amounts will instead be payable to the Person in whose
name such Trust Securities are registered on the special record date, or other
specified date for determining Holders entitled to such defaulted Distribution
and Additional Interest Amount, established in the same manner, and on the
same
date, as such is established with respect to the Notes under the
Indenture.
SECTION
4.2. Redemption.
(a) On
each
Note Redemption Date and on the stated maturity (or any date of principal
repayment upon early maturity) of the Notes and on each other date on (or in
respect of) which any principal on the Notes is repaid, the Trust will be
required to redeem a Like Amount of Trust Securities at the Redemption
Price.
(b) Notice
of
redemption shall be given by the Property Trustee by first-class mail, postage
prepaid, mailed not less than thirty (30) nor more than sixty (60) days prior
to
the Redemption Date to each Holder of Trust Securities to be redeemed, at such
Holder’s address appearing in the Securities Register. All notices of redemption
shall state:
(i) the
Redemption Date;
(ii) the
Redemption Price or, if the Redemption Price cannot be calculated prior to
the
time the notice is required to be sent, the estimate of the Redemption Price
provided pursuant to the Indenture, as calculated by the Depositor, together
with a statement that it is an estimate and that the actual Redemption Price
will be calculated
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by
the
Calculation Agent on the fifth Business Day prior to the Redemption Date (and
if
an estimate is provided, a further notice shall be sent of the actual Redemption
Price on the date that such Redemption Price is calculated);
(iii) if
less
than all the Outstanding Trust Securities are to be redeemed, the identification
(and, in the case of partial redemption, the respective Liquidation Amounts)
and
Liquidation Amounts of the particular Trust Securities to be
redeemed;
(iv) that
on
the Redemption Date, the Redemption Price will become due and payable upon
each
such Trust Security, or portion thereof, to be redeemed and that Distributions
thereon will cease to accumulate on such Trust Security or such portion, as
the
case may be, on and after said date, except as provided in Section
4.2(d);
(v) the
place
or places where the Trust Securities are to be surrendered for the payment
of
the Redemption Price; and
(vi) such
other provisions as the Property Trustee deems relevant.
(c) The
Trust
Securities (or portion thereof) redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption or payment at maturity of Notes. Redemptions of the Trust Securities
(or portion thereof) shall be made and the Redemption Price shall be payable
on
each Redemption Date only to the extent that the Trust has funds then on hand
and available in the Payment Account for the payment of such Redemption
Price. Under the Indenture, the Notes may be redeemed by the
Depositor on any Interest Payment Date, at the Depositor’s option, on or after
October 30, 2012, in whole or in part, from time to time at a redemption price
equal to one hundred percent (100%) of the principal amount thereof, together,
in the case of any such redemption, with accrued interest, including any
Additional Interest, to but excluding the date fixed for redemption (the
“Indenture Redemption Price”); provided, that the Depositor shall have received
the prior approval of the Federal Reserve if then required. The Notes
may also be redeemed by the Depositor, at its option, at any time, in whole
but
not in part, upon the occurrence of a Capital Disqualification Event, an
Investment Company Event or a Tax Event at the Special Event Redemption Price
(as set forth in the Indenture); provided, that the Depositor shall have
received the prior approval of the Federal Reserve if then
required.
(d) If
the
Property Trustee gives a notice of redemption in respect of any Preferred
Securities, then by 10:00 A.M., New York City time, on the Redemption Date,
the
Depositor shall deposit sufficient funds with the Property Trustee to pay the
Redemption Price. If such deposit has been made by such time, then by
12:00 noon, New York City time, on the Redemption Date, the Property Trustee
will, with respect to Book-Entry Preferred Securities, irrevocably deposit
with
the Depositary for such Book-Entry Preferred Securities, to the extent available
therefor, funds sufficient to pay the applicable Redemption Price and will
give
such Depositary irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Preferred Securities. With respect to Preferred
Securities that are not Book-Entry Preferred Securities, the Property Trustee
will irrevocably deposit with the Paying Agent, to the extent available
therefor, funds sufficient to pay the applicable Redemption Price and will
give
the Paying Agent irrevocable instructions and authority to pay the Redemption
Price to the Holders
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of
the
Preferred Securities upon surrender of their Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities (or portion thereof) called for
redemption shall be payable to the Holders of such Trust Securities as they
appear on the Securities Register on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then upon the date of such deposit, all rights of Holders
holding Trust Securities (or portion thereof) so called for redemption will
cease, except the right of such Holders to receive the Redemption Price and
any
Distribution payable in respect of the Trust Securities on or prior to the
Redemption Date, but without interest, and, in the case of a partial redemption,
the right of such Holders to receive a new Trust Security or Securities of
authorized denominations, in aggregate Liquidation Amount equal to the
unredeemed portion of such Trust Security or Securities, and such Securities
(or
portion thereof) called for redemption will cease to be Outstanding. In the
event that any date on which any Redemption Price is payable is not a Business
Day, then payment of the Redemption Price payable on such date will be made
on
the next succeeding Business Day (and no interest shall accrue in respect of
the
amounts whose payment is so delayed for the period from and after each such
date
until the next succeeding Business Day), except that, if such Business Day
falls
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case, with the same force and effect
as if made on such date. In the event that payment of the Redemption Price
in
respect of any Trust Securities (or portion thereof) called for redemption
is
improperly withheld or refused and not paid either by the Trust or by the
Depositor pursuant to the Guarantee Agreement, Distributions on such Trust
Securities (or portion thereof) will continue to accumulate, as set forth in
Section 4.1, from the Redemption Date originally established by the Trust
for such Trust Securities (or portion thereof) to the date such Redemption
Price
is actually paid, in which case the actual payment date will be the date fixed
for redemption for purposes of calculating the Redemption Price.
(e) Subject
to Section 4.3(a), if less than all the Outstanding Trust Securities are
to be redeemed on a Redemption Date, then the aggregate Liquidation Amount
of
Trust Securities to be redeemed shall be allocated pro rata to the Common
Securities and the Preferred Securities based upon the relative aggregate
Liquidation Amounts of the Common Securities and the Preferred
Securities. The Preferred Securities to be redeemed shall be selected
on a pro rata basis based upon their respective Liquidation Amounts not more
than sixty (60) days prior to the Redemption Date by the Property Trustee from
the Outstanding Preferred Securities not previously called for redemption;
provided, however, that with respect to Holders that would be required to hold
less than one hundred (100) but more than zero (0) Trust Securities as a result
of such redemption, the Trust shall redeem Trust Securities of each such Holder
so that after such redemption such Holder shall hold either one hundred (100)
Trust Securities or such Holder no longer holds any Trust Securities, and shall
use such method (including, without limitation, by lot) as the Trust shall
deem
fair and appropriate; and provided, further, that so long as the Preferred
Securities are Book-Entry Preferred Securities, such selection shall be made
in
accordance with the Applicable Depositary Procedures for the Preferred
Securities by such Depositary. The Property Trustee shall promptly notify the
Securities Registrar in writing of the Preferred Securities (or portion thereof)
selected for redemption and, in the case of any Preferred Securities selected
for partial redemption, the Liquidation Amount thereof to be redeemed. For
all
purposes of this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Preferred Securities shall relate,
in
the case of any Preferred
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Securities
redeemed or to be redeemed only in part, to the portion of the aggregate
Liquidation Amount of Preferred Securities that has been or is to be
redeemed.
(f) The
Trust
in issuing the Trust Securities may use “CUSIP” numbers (if then generally in
use), and, if so, the Property Trustee shall indicate the “CUSIP” numbers of the
Trust Securities in notices of redemption and related materials as a convenience
to Holders; provided, that any such notice may state that no representation
is
made as to the correctness of such numbers either as printed on the Trust
Securities or as contained in any notice of redemption and related
materials.
SECTION
4.3. Subordination
of Common Securities.
(a) Payment
of Distributions (including any Additional Interest Amounts) on, the Redemption
Price of and the Liquidation Distribution in respect of, the Trust Securities,
as applicable, shall be made, pro rata among the Common Securities and the
Preferred Securities based on the Liquidation Amount of the respective Trust
Securities; provided, that if on any Distribution Date, Redemption Date or
Liquidation Date an Event of Default shall have occurred and be continuing,
no
payment of any Distribution (including any Additional Interest Amounts) on,
Redemption Price of or Liquidation Distribution in respect of, any Common
Security, and no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless payment in full
in
cash of all accumulated and unpaid Distributions (including any Additional
Interest Amounts) on all Outstanding Preferred Securities for all Distribution
periods terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all Outstanding
Preferred Securities then called for redemption, or in the case of payment
of
the Liquidation Distribution the full amount of such Liquidation Distribution
on
all Outstanding Preferred Securities, shall have been made or provided for,
and
all funds immediately available to the Property Trustee shall first be applied
to the payment in full in cash of all Distributions (including any Additional
Interest Amounts) on, or the Redemption Price of or the Liquidation Distribution
in respect of, the Preferred Securities then due and payable.
(b) In
the
case of the occurrence of any Event of Default, the Holders of the Common
Securities shall have no right to act with respect to any such Event of Default
under this Trust Agreement until all such Events of Default with respect to
the
Preferred Securities have been cured, waived or otherwise eliminated. Until all
such Events of Default under this Trust Agreement with respect to the Preferred
Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Preferred Securities
and not on behalf of the Holders of the Common Securities, and only the Holders
of all the Preferred Securities will have the right to direct the Property
Trustee to act on their behalf.
SECTION
4.4. Payment
Procedures.
Payments
of Distributions (including any Additional Interest Amounts), the Redemption
Price, Liquidation Amount or any other amounts in respect of the Preferred
Securities shall be made by wire transfer at such place and to such account
at a
banking institution in the United States as may be designated in writing at
least ten (10) Business Days prior to the date for payment by the Person
entitled thereto unless proper written transfer instructions have not been
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received
by the relevant record date, in which case such payments shall be made by check
mailed to the address of such Person as such address shall appear in the
Securities Register. If any Preferred Securities are held by a
Depositary, such Distributions thereon shall be made to the Depositary in
immediately available funds. Payments in respect of the Common Securities shall
be made in such manner as shall be mutually agreed between the Property Trustee
and the Holder of all the Common Securities.
SECTION
4.5. Withholding
Tax.
The
Trust
and the Administrative Trustees shall comply with all withholding and backup
withholding tax requirements under United States federal, state and local
law. The Administrative Trustees on behalf of the Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding and backup
withholding tax with respect to each Holder and any representations and forms
as
shall reasonably be requested by the Administrative Trustees on behalf of the
Trust to assist it in determining the extent of, and in fulfilling, its
withholding and backup withholding tax obligations. The
Administrative Trustees shall file required forms with applicable jurisdictions
and, unless an exemption from withholding and backup withholding tax is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required
to withhold and pay over any amounts to any jurisdiction with respect to
Distributions or allocations to any Holder, the amount withheld shall be deemed
to be a Distribution in the amount of the withholding to the
Holder. In the event of any claimed overwithholding, Holders shall be
limited to an action against the applicable jurisdiction. If the
amount required to be withheld was not withheld from actual Distributions made,
the Administrative Trustees on behalf of the Trust may reduce subsequent
Distributions by the amount of such required withholding.
SECTION
4.6. Tax
Returns and Other Reports.
(a) The
Administrative Trustees shall prepare (or cause to be prepared) at the principal
office of the Trust in the United States, as defined for purposes of Treasury
Regulations section 301.7701-7, at the Depositor’s expense, and file, all United
States federal, state and local tax and information returns and reports required
to be filed by or in respect of the Trust. The Administrative
Trustees shall prepare at the principal office of the Trust in the United
States, as defined for purposes of Treasury Regulations section 301.7701-7,
and
furnish (or cause to be prepared and furnished), by January 31 in each taxable
year of the Trust to each Holder all Internal Revenue Service forms and returns
required to be provided by the Trust. The Administrative Trustees shall provide
the Depositor and the Property Trustee with a copy of all such returns and
reports promptly after such filing or furnishing.
(b) So
long
as the Property Trustee is the holder of the Notes, the Administrative Trustees
shall furnish to the Property Trustee (i) the Depositor’s reports on Federal
Reserve form FR Y-9C, FR Y-9LP and FR Y-6 promptly following their filing with
the Federal Reserve, or (ii) if the Depositor is no longer required to file
the
reports set forth in (i) above, such other similar reports as the Depositor
may
be required to file at such time with the Depositor’s primary federal banking
regulator promptly following their filing with such banking
regulator.
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SECTION
4.7. Payment
of Taxes, Duties, Etc. of the Trust.
Upon
receipt under the Notes of Additional Tax Sums and upon the written direction
of
the Administrative Trustees, the Property Trustee shall promptly pay, solely
out
of monies on deposit pursuant to this Trust Agreement, any Additional Taxes
imposed on the Trust by the United States or any other taxing
authority.
SECTION
4.8. Payments
under Indenture or Pursuant to Direct Actions.
Any
amount payable hereunder to any Holder of Preferred Securities shall be reduced
by the amount of any corresponding payment such Holder (or any Owner with
respect thereto) has directly received pursuant to Section 5.8 of the
Indenture or Section 6.10(b) of this Trust Agreement.
SECTION
4.9. Exchanges.
(a) If
at any
time the Depositor or any of its Affiliates (in either case, a “Depositor
Affiliate”) is the Owner or Holder of any Preferred Securities, such Depositor
Affiliate shall have the right to deliver to the Property Trustee all or such
portion of its Preferred Securities as it elects and, subject to compliance
with
Sections 2.2 and 3.5 of the Indenture, receive, in exchange
therefor, a Like Amount of Notes. Such election (i) shall be
exercisable effective on any Distribution Date by such Depositor Affiliate
delivering to the Property Trustee a written notice of such election specifying
the Liquidation Amount of Preferred Securities with respect to which such
election is being made and the Distribution Date on which such exchange shall
occur, which Distribution Date shall be not less than ten (10) Business Days
after the date of receipt by the Property Trustee of such election notice and
(ii) shall be conditioned upon such Depositor Affiliate having delivered or
caused to be delivered to the Property Trustee or its designee the Preferred
Securities that are the subject of such election by 10:00 A.M. New York time,
on
the Distribution Date on which such exchange is to occur. After the
exchange, such Preferred Securities will be canceled and will no longer be
deemed to be Outstanding and all rights of the Depositor Affiliate with respect
to such Preferred Securities will cease.
(b) In
the
case of an exchange described in Section 4.9(a), the Property Trustee on
behalf of the Trust will, on the date of such exchange, exchange Notes having
a
principal amount equal to a proportional amount of the aggregate Liquidation
Amount of the Outstanding Common Securities, based on the ratio of the aggregate
Liquidation Amount of the Preferred Securities exchanged pursuant to Section
4.9(a) divided by the aggregate Liquidation Amount of the Preferred
Securities Outstanding immediately prior to such exchange, for such proportional
amount of Common Securities held by the Depositor (which contemporaneously
shall
be canceled and no longer be deemed to be Outstanding); provided, that the
Depositor delivers or causes to be delivered to the Property Trustee or its
designee the required amount of Common Securities to be exchanged by 10:00
A.M.
New York time, on the Distribution Date on which such exchange is to
occur.
SECTION
4.10. Calculation
Agent.
(a) The
Property Trustee shall initially, and, subject to the immediately following
sentence, for so long as it holds any of the Notes, be the Calculation Agent
for
purposes of
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determining
LIBOR for each Distribution Date. The Calculation Agent may be
removed by the Administrative Trustees at any time. If the
Calculation Agent is unable or unwilling to act as such or is removed by the
Administrative Trustees, the Administrative Trustees will promptly appoint
as a
replacement Calculation Agent the London office of a leading bank which is
engaged in transactions in three-month U.S. dollar deposits in Europe and which
does not control or is not controlled by or under common control with the
Administrative Trustees or their Affiliates. The Calculation Agent
may not resign its duties without a successor having been duly
appointed.
(b) The
Calculation Agent shall be required to agree that, as soon as possible after
11:00 a.m. (London time) on each LIBOR Determination Date, but in no event
later
than 11:00 a.m. (London time) on the Business Day immediately following each
LIBOR Determination Date, the Calculation Agent will calculate the interest
rate
and dollar amount (rounded to the nearest cent, with half a cent being rounded
upwards) for the related Distribution Date, and will communicate such rate
and
amount to the Depositor, the Property Trustee, each Paying Agent and the
Depositary. The Calculation Agent will also specify to the Administrative
Trustees the quotations upon which the foregoing rates and amounts are based
and, in any event, the Calculation Agent shall notify the Administrative
Trustees before 5:00 p.m. (London time) on each LIBOR Determination Date that
either: (i) it has determined or is in the process of determining the
foregoing rates and amounts or (ii) it has not determined and is not in the
process of determining the foregoing rates and amounts, together with its
reasons therefor. The Calculation Agent’s determination of the
foregoing rates and amounts for any Distribution Date will (in the absence
of
manifest error) be final and binding upon all parties. For the sole
purpose of calculating the interest rate for the Trust Securities, “Business
Day” shall be defined as any day on which dealings in deposits in Dollars are
transacted in the London interbank market.
SECTION
4.11. Certain
Accounting Matters.
(a) At
all
times during the existence of the Trust, the Administrative Trustees shall
keep,
or cause to be kept at the principal office of the Trust in the United States,
as defined for purposes of Treasury Regulations section 301.7701-7, full books
of account, records and supporting documents, which shall reflect in reasonable
detail each transaction of the Trust. The books of account shall be
maintained on the accrual method of accounting, in accordance with generally
accepted accounting principles, consistently applied.
(b) The
Administrative Trustees shall either (i) if the Depositor is then subject to
such reporting requirements, cause each Form 10-K and Form 10-Q prepared by
the
Depositor and filed with the Commission in accordance with the Exchange Act
to
be delivered to each Holder, with a copy to the Property Trustee, within thirty
(30) days after the filing thereof or (ii) cause to be prepared at the principal
office of the Trust in the United States, as defined for purposes of Treasury
Regulations section 301.7701-7, and delivered to each of the Holders, with
a
copy to the Property Trustee, within ninety (90) days after the end of each
Fiscal Year, annual financial statements of the Trust, including a balance
sheet
of the Trust as of the end of such Fiscal Year, and the related statements
of
income or loss.
(c) The
Trust
shall maintain one or more bank accounts in the United States, as defined for
purposes of Treasury Regulations section 301.7701-7, in the name and for the
sole
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benefit
of the Trust; provided, however, that all payments of funds in
respect of the Notes held by the Property Trustee shall be made directly to
the
Payment Account and no other funds of the Trust shall be deposited in the
Payment Account. The sole signatories for such accounts (including
the Payment Account) shall be designated by the Property Trustee.
ARTICLE
V.
Securities
SECTION
5.1. Initial
Ownership.
Upon
the
creation of the Trust and the contribution by the Depositor referred to in
Section 2.3 and until the issuance of the Trust Securities, and at any
time during which no Trust Securities are Outstanding, the Depositor shall
be
the sole beneficial owner of the Trust.
SECTION
5.2. Authorized
Trust Securities.
The
Trust
shall be authorized to issue one series of Preferred Securities having an
aggregate Liquidation Amount of $22,500,000 and one series of Common Securities
having an aggregate Liquidation Amount of $696,000.
SECTION
5.3. Issuance
of the Common Securities; Subscription and Purchase of Notes.
On
the
Closing Date, an Administrative Trustee, on behalf of the Trust, shall execute
and deliver to the Depositor Common Securities Certificates, registered in
the
name of the Depositor, evidencing an aggregate of 696 Common Securities having
an aggregate Liquidation Amount of $696,000, against receipt by the Trust of
the
aggregate purchase price of such Common Securities of $696,000.
Contemporaneously therewith and with the sale by the Trust to the Holders of
an
aggregate of 22,500 Preferred Securities having an aggregate Liquidation Amount
of $22,500,000, an Administrative Trustee, on behalf of the Trust, shall
subscribe for and purchase from the Depositor Notes, to be registered in the
name of the Property Trustee on behalf of the Trust and having an aggregate
principal amount equal to $23,196,000, and, in satisfaction of the purchase
price for such Notes, the Property Trustee, on behalf of the Trust, shall
deliver to the Depositor the sum of $23,196,000 (being the aggregate amount
paid
by the Holders for the Preferred Securities and the amount paid by the Depositor
for the Common Securities).
SECTION
5.4. The
Securities Certificates.
(a) The
Preferred Securities Certificates shall be issued in minimum denominations
of
$100,000 Liquidation Amount and integral multiples of $1,000 in excess thereof,
and the Common Securities Certificates shall be issued in minimum denominations
of $10,000 Liquidation Amount and integral multiples of $1,000 in excess
thereof. The Securities Certificates shall be executed on behalf of
the Trust by manual or facsimile signature of at least one Administrative
Trustee. Securities Certificates bearing the signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign such Securities Certificates on behalf of the Trust shall
be
validly issued and entitled to the benefits of this Trust
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Agreement,
notwithstanding that such individuals or any of them shall have ceased to be
so
authorized prior to the delivery of such Securities Certificates or did not
have
such authority at the date of delivery of such Securities
Certificates.
(b) On
the
Closing Date, upon the written order of an authorized officer of the Depositor,
the Administrative Trustees shall cause Securities Certificates to be executed
on behalf of the Trust and delivered, without further corporate action by the
Depositor, in authorized denominations.
(c) Preferred
Securities issued on the Closing Date to QIBs shall be issued as directed by
the
Purchaser on or prior to the Closing Date, either (i) in the form of one or
more
Global Preferred Securities or (ii) in the form of one or more Definitive
Preferred Securities Certificates. Global Preferred Securities shall
be, except as provided in Section 5.6, Book-Entry Preferred
Securities registered in the name of the Depositary, or its nominee and
deposited with the Depositary or the Property Trustee as custodian for the
Depositary for credit by the Depositary to the respective accounts of the
Depositary Participants thereof (or such other accounts as they may
direct). The Preferred Securities issued to a Person other than a QIB
shall be issued in the form of Definitive Preferred Securities
Certificates.
(d) A
Preferred Security shall not be valid until authenticated by the manual
signature of a Responsible Officer of the Property Trustee. Such
signature shall be conclusive evidence that the Preferred Security has been
authenticated under this Trust Agreement. Upon written order of the
Trust signed by one Administrative Trustee, the Property Trustee shall
authenticate and deliver one or more Preferred Security Certificates evidencing
the Preferred Securities for original issue. The Property Trustee may
appoint an authenticating agent that is a U.S. Person acceptable to the Trust
to
authenticate the Preferred Securities. A Common Security need not be
so authenticated and shall be valid upon execution by one or more Administrative
Trustees. The form of this certificate of authentication can be found
in Section 5.13.
(e) Upon
issuance of the Trust Securities as provided in this Trust Agreement, the Trust
Securities so issued shall be deemed to be validly issued, fully paid and
nonassessable, and each Holder thereof shall be entitled to the benefits
provided by this Trust Agreement.
SECTION
5.5. Rights
of
Holders.
The
Trust
Securities shall have no, and the issuance of the Trust Securities is not
subject to, preemptive or similar rights and when issued and delivered to
Holders against payment of the purchase price therefor will be fully paid and
non-assessable by the Trust. Except as provided in Section
5.11(b), the Holders of the Trust Securities, in their capacities as such,
shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
SECTION
5.6. Book-Entry
Preferred Securities.
(a) A
Global
Preferred Security may be exchanged, in whole or in part, for Definitive
Preferred Securities Certificates registered in the names of the Owners only
if
such exchange complies with Section 5.7 and (i) the Depositary advises
the Administrative Trustees and the Property Trustee in writing that the
Depositary is no longer willing or able properly to discharge
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its
responsibilities with respect to the Global Preferred Security, and no qualified
successor is appointed by the Administrative Trustees within ninety (90) days
of
receipt of such notice, (ii) the Depositary ceases to be a clearing agency
registered under the Exchange Act and the Administrative Trustees fail to
appoint a qualified successor within ninety (90) days of obtaining knowledge
of
such event, (iii) the Administrative Trustees at their option advise the
Property Trustee in writing that the Trust elects to terminate the book-entry
system through the Depositary or (iv) a Note Event of Default has occurred
and
is continuing. Upon the occurrence of any event specified in clause (i), (ii),
(iii) or (iv) above, the Administrative Trustees shall notify the Depositary
and
instruct the Depositary to notify all Owners of Book-Entry Preferred Securities,
the Delaware Trustee and the Property Trustee of the occurrence of such event
and of the availability of the Definitive Preferred Securities Certificates
to
Owners of the Preferred Securities requesting the same. Upon the issuance of
Definitive Preferred Securities Certificates, the Trustees shall recognize
the
Holders of the Definitive Preferred Securities Certificates as
Holders. Notwithstanding the foregoing, if an Owner of a beneficial
interest in a Global Preferred Security wishes at any time to transfer an
interest in such Global Preferred Security to a Person other than a QIB, such
transfer shall be effected, subject to the Applicable Depositary Procedures,
in
accordance with the provisions of this Section 5.6 and Section
5.7, and the transferee shall receive a Definitive Preferred Securities
Certificate in connection with such transfer. A holder of a
Definitive Preferred Securities Certificate that is a QIB may, upon request,
and
in accordance with the provisions of this Section 5.6 and Section
5.7, exchange such Definitive Preferred Securities Certificate for a
beneficial interest in a Global Preferred Security.
(b) If
any
Global Preferred Security is to be exchanged for Definitive Preferred Securities
Certificates or canceled in part, or if any Definitive Preferred Securities
Certificate is to be exchanged in whole or in part for any Global Preferred
Security, then either (i) such Global Preferred Security shall be so surrendered
for exchange or cancellation as provided in this Article V or (ii)
the aggregate Liquidation Amount represented by such Global Preferred Security
shall be reduced, subject to Section 5.4, or increased by an amount equal
to the Liquidation Amount represented by that portion of the Global Preferred
Security to be so exchanged or canceled, or equal to the Liquidation Amount
represented by such Definitive Preferred Securities Certificates to be so
exchanged for any Global Preferred Security, as the case may be, by means of
an
appropriate adjustment made on the records of the Securities Registrar,
whereupon the Property Trustee, in accordance with the Applicable Depositary
Procedures, shall instruct the Depositary or its authorized representative
to
make a corresponding adjustment to its records. Upon any such surrender to
the
Administrative Trustees or the Securities Registrar of any Global Preferred
Security or Securities by the Depositary, accompanied by registration
instructions, the Administrative Trustees, or any one of them, shall execute
the
Definitive Preferred Securities Certificates in accordance with the instructions
of the Depositary, and the Property Trustee, upon receipt thereof, shall
authenticate and deliver such Definitive Preferred Securities
Certificates. None of the Securities Registrar or the Trustees shall
be liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be fully protected in relying on, such
instructions.
(c) Every
Securities Certificate executed and delivered upon registration of transfer
of,
or in exchange for or in lieu of, a Global Preferred Security or any portion
thereof shall be executed and delivered in the form of, and shall be, a Global
Preferred Security, unless such
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Securities
Certificate is registered in the name of a Person other than the Depositary
for
such Global Preferred Security or a nominee thereof.
(d) The
Depositary or its nominee, as registered owner of a Global Preferred Security,
shall be the Holder of such Global Preferred Security for all purposes under
this Trust Agreement and the Global Preferred Security, and Owners with respect
to a Global Preferred Security shall hold such interests pursuant to the
Applicable Depositary Procedures. The Securities Registrar and the Trustees
shall be entitled to deal with the Depositary for all purposes of this Trust
Agreement relating to the Global Preferred Securities (including the payment
of
the Liquidation Amount of and Distributions on the Book-Entry Preferred
Securities represented thereby and the giving of instructions or directions
by
Owners of Book-Entry Preferred Securities represented thereby and the giving
of
notices) as the sole Holder of the Book-Entry Preferred Securities represented
thereby and shall have no obligations to the Owners thereof. None of
the Trustees nor the Securities Registrar shall have any liability in respect
of
any transfers effected by the Depositary.
(e) The
rights of the Owners of the Book-Entry Preferred Securities shall be exercised
only through the Depositary and shall be limited to those established by law,
the Applicable Depositary Procedures and agreements between such Owners and
the
Depositary and/or the Depositary Participants; provided, that, solely for the
purpose of determining whether the Holders of the requisite amount of Preferred
Securities have voted on any matter provided for in this Trust Agreement, to
the
extent that Preferred Securities are represented by a Global Preferred Security,
the Trustees may conclusively rely on, and shall be fully protected in relying
on, any written instrument (including a proxy) delivered to the Property Trustee
by the Depositary setting forth the Owners’ votes or assigning the right to vote
on any matter to any other Persons either in whole or in part. To the
extent that Preferred Securities are represented by a Global Preferred Security,
the Depositary will make book-entry transfers among the Depositary Participants
and receive and transmit payments on the Preferred Securities that are
represented by a Global Preferred Security to such Depositary Participants,
and
none of the Depositor or the Trustees shall have any responsibility or
obligation with respect thereto.
(f) To
the
extent that a notice or other communication to the Holders is required under
this Trust Agreement, for so long as Preferred Securities are represented by
a
Global Preferred Security, the Trustees shall give all such notices and
communications to the Depositary, and shall have no obligations to the
Owners.
SECTION
5.7. Registration
of Transfer and Exchange of Preferred Securities Certificates.
(a) The
Property Trustee shall keep or cause to be kept, at the Corporate Trust Office,
a register or registers (the “Securities Register”) in which the registrar and
transfer agent with respect to the Trust Securities (the “Securities
Registrar”), subject to such reasonable regulations as it may prescribe, shall
provide for the registration of Preferred Securities Certificates and Common
Securities Certificates and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Property Trustee shall at all
times also be the Securities Registrar. The provisions of Article
VIII shall apply to the Property Trustee in its role as Securities
Registrar.
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(b) Subject
to Section 5.7(d), upon surrender for registration of transfer of any
Preferred Securities Certificate at the office or agency maintained pursuant
to
Section 5.7(f), the Administrative Trustees or any one of them shall
execute by manual or facsimile signature and deliver to the Property Trustee,
and upon receipt thereof the Property Trustee shall authenticate and deliver,
in
the name of the designated transferee or transferees, one or more new Preferred
Securities Certificates in authorized denominations of a like aggregate
Liquidation Amount as may be required by this Trust Agreement dated the date
of
execution by such Administrative Trustee or Trustees. At the option
of a Holder, Preferred Securities Certificates may be exchanged for other
Preferred Securities Certificates in authorized denominations and of a like
aggregate Liquidation Amount upon surrender of the Preferred Securities
Certificate to be exchanged at the office or agency maintained pursuant to
Section 5.7(f). Whenever any Preferred Securities
Certificates are so surrendered for exchange, the Administrative Trustees or
any
one of them shall execute by manual or facsimile signature and deliver to the
Property Trustee, and upon receipt thereof the Property Trustee shall
authenticate and deliver, the Preferred Securities Certificates that the Holder
making the exchange is entitled to receive.
(c) The
Securities Registrar shall not be required, (i) to issue, register the transfer
of or exchange any Preferred Security during a period beginning at the opening
of business fifteen (15) days before the day of selection for redemption of
such
Preferred Securities pursuant to Article IV and ending at the close of
business on the day of mailing of the notice of redemption or (ii) to register
the transfer of or exchange any Preferred Security so selected for redemption
in
whole or in part, except, in the case of any such Preferred Security to be
redeemed in part, any portion thereof not to be redeemed.
(d) Every
Preferred Securities Certificate presented or surrendered for registration
of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Securities Registrar duly
executed by the Holder or such Holder’s attorney duly authorized in writing and
(i) if such Preferred Securities Certificate is being transferred otherwise
than
to a QIB, accompanied by a certificate of the transferee substantially in the
form set forth as Exhibit E hereto or (ii) if such Preferred Securities
Certificate is being transferred to a QIB, accompanied by a certificate of
the
transferor substantially in the form set forth as Exhibit F
hereto.
(e) No
service charge shall be made for any registration of transfer or exchange of
Preferred Securities Certificates, but the Property Trustee on behalf of the
Trust may require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer or exchange of
Preferred Securities Certificates.
(f) The
Administrative Trustees shall designate an office or offices or agency or
agencies where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange, and initially designate the Corporate
Trust Office as its office and agency for such purposes. The Administrative
Trustees shall give prompt written notice to the Depositor, the Property Trustee
and to the Holders of any change in the location of any such office or
agency.
(g) With
respect to Preferred Securities issued to QIBs in the form of one or more
Definitive Preferred Securities Certificates as provided in Section 5.4(c),
and
any subsequent transfers thereof, the Depositor and the Trust shall use all
commercially reasonable efforts to
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make
such
Preferred Securities eligible for clearance and settlement as Book-Entry
Preferred Securities through the facilities of the Depositary and listed for
trading through the PORTAL Market, and will execute, deliver and comply with
all
representations made to, and agreements with, the Depositary and the PORTAL
Market in connection therewith.
SECTION
5.8. Mutilated,
Destroyed, Lost or Stolen Securities Certificates.
(a) If
any
mutilated Securities Certificate shall be surrendered to the Securities
Registrar together with such security or indemnity as may be required by the
Securities Registrar and the Administrative Trustees to save each of them
harmless, the Administrative Trustees, or any one of them, on behalf of the
Trust, shall execute and make available for delivery and, with respect to
Preferred Securities, the Property Trustee shall authenticate, in exchange
therefor a new Securities Certificate of like class, tenor and
denomination.
(b) If
the
Securities Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Securities Certificate and there shall be
delivered to the Securities Registrar and the Administrative Trustees such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice that such Securities Certificate shall have been
acquired by a bona fide purchaser, the Administrative Trustees, or any
one of them, on behalf of the Trust, shall execute and make available for
delivery, and, with respect to Preferred Securities, the Property Trustee shall
authenticate, in exchange for or in lieu of any such destroyed, lost or stolen
Securities Certificate, a new Securities Certificate of like class, tenor and
denomination.
(c) In
connection with the issuance of any new Securities Certificate under this
Section 5.8, the Administrative Trustees or the Securities Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
(d) Any
duplicate Securities Certificate issued pursuant to this Section 5.8
shall constitute conclusive evidence of an undivided beneficial interest in
the
assets of the Trust corresponding to that evidenced by the mutilated, lost,
stolen or destroyed Securities Certificate, as if originally issued, whether
or
not the lost, stolen or destroyed Securities Certificate shall be found at
any
time.
(e) If
any
such mutilated, destroyed, lost or stolen Securities Certificate has become
or
is about to become due and payable, the Depositor in its discretion may, instead
of issuing a new Trust Security, pay such Trust Security.
(f) The
provisions of this Section 5.8 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
of
mutilated, destroyed, lost or stolen Securities Certificates.
SECTION
5.9. Persons
Deemed Holders.
The
Trustees and the Securities Registrar shall each treat the Person in whose
name
any Securities Certificate shall be registered in the Securities Register as
the
owner of the Trust Securities evidenced by such Securities Certificate for
the
purpose of receiving Distributions and
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for
all other purposes whatsoever, and none of the Trustees and the Securities
Registrar shall be bound by any notice to the contrary.
SECTION
5.10. Cancellation.
All
Preferred Securities Certificates surrendered for registration of transfer
or
exchange or for payment shall, if surrendered to any Person other than the
Property Trustee, be delivered to the Property Trustee, and any such Preferred
Securities Certificates and Preferred Securities Certificates surrendered
directly to the Property Trustee for any such purpose shall be promptly canceled
by it. The Administrative Trustees may at any time deliver to the
Property Trustee for cancellation any Preferred Securities Certificates
previously delivered hereunder that the Administrative Trustees may have
acquired in any manner whatsoever, and all Preferred Securities Certificates
so
delivered shall be promptly canceled by the Property Trustee. No
Preferred Securities Certificates shall be executed and delivered in lieu of
or
in exchange for any Preferred Securities Certificates canceled as provided
in
this Section 5.10, except as expressly permitted by this Trust
Agreement. All canceled Preferred Securities Certificates shall be
disposed of by the Property Trustee in accordance with its customary practices
and the Property Trustee shall deliver to the Administrative Trustees a
certificate of such disposition.
SECTION
5.11. Ownership
of Common Securities by Depositor.
(a) On
the
Closing Date, the Depositor shall acquire, and thereafter shall retain,
beneficial and record ownership of the Common Securities. Neither the Depositor
nor any successor Holder of the Common Securities may transfer less than all
the
Common Securities, and the Depositor or any such successor Holder may transfer
the Common Securities only (i) in connection with a consolidation or merger
of
the Depositor into another Person, or any conveyance, transfer or lease by
the
Depositor of its properties and assets substantially as an entirety to any
Person (in which event such Common Securities will be transferred to such
surviving entity, transferee or lessee, as the case may be), pursuant to
Section 8.1 of the Indenture or (ii) to the Depositor or an Affiliate of
the Depositor, in each such case in compliance with applicable law (including
the Securities Act, and applicable state securities and blue sky laws). To
the
fullest extent permitted by law, any attempted transfer of the Common Securities
other than as set forth in the immediately preceding sentence shall be void.
The
Administrative Trustees shall cause each Common Securities Certificate issued
to
the Depositor to contain a legend stating substantially “THIS CERTIFICATE IS NOT
TRANSFERABLE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE
TRUST AGREEMENT.”
(b) Any
Holder of the Common Securities shall be liable for the debts and obligations
of
the Trust in the manner and to the extent set forth herein with respect to
the
Depositor and agrees that it shall be subject to all liabilities to which the
Depositor may be subject and, prior to becoming such a Holder, shall deliver
to
the Administrative Trustees an instrument of assumption satisfactory to such
Trustees.
SECTION
5.12. Restricted
Legends.
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(a) Each
Preferred Security Certificate shall bear a legend in substantially the
following form:
“[IF
THIS SECURITY IS A GLOBAL SECURITY INSERT: THIS PREFERRED SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”) OR A
NOMINEE OF DTC. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE
ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT, AND NO TRANSFER
OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED SECURITY
AS
A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER
NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS
THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
TO
HNC STATUTORY TRUST IV OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR
PAYMENT, AND ANY PREFERRED SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
THE
PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND SUCH PREFERRED SECURITIES OR ANY INTEREST
THEREIN, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF ANY PREFERRED SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF
THE
PREFERRED SECURITIES MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES
ACT.
THE
HOLDER OF THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR
THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT (A) SUCH PREFERRED SECURITIES
MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO THE TRUST, (II)
TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING
THE
REQUIREMENTS OF
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RULE
144A, OR (III) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF
SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT
IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF AN
“ACCREDITED INVESTOR,” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT, FOR INVESTMENT PURPOSES AND NOT WITH
A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
AND,
IN THE CASE OF (III), SUBJECT TO THE RIGHT OF THE TRUST AND THE DEPOSITOR TO
REQUIRE AN OPINION OF COUNSEL ADDRESSING COMPLIANCE WITH THE U.S. SECURITIES
LAWS, AND OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND (B) THE HOLDER
WILL
NOTIFY ANY PURCHASER OF ANY PREFERRED SECURITIES FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE
PREFERRED SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING
AN AGGREGATE LIQUIDATION AMOUNT OF NOT LESS THAN $100,000. TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY ATTEMPTED TRANSFER OF PREFERRED SECURITIES,
OR ANY INTEREST THEREIN, IN A BLOCK HAVING AN AGGREGATE LIQUIDATION
AMOUNT OF LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL
BE
DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT
TO BE
THE HOLDER OF SUCH PREFERRED SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT
LIMITED TO, THE RECEIPT OF LIQUIDATION AMOUNT OF OR DISTRIBUTIONS ON SUCH
PREFERRED SECURITIES, OR ANY INTEREST THEREIN, AND SUCH PURPORTED TRANSFEREE
SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH PREFERRED
SECURITIES.
THE
HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE
HEREOF OR THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN
EMPLOYEE BENEFIT PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR
ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF
1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE “CODE”) (EACH A “PLAN”), OR AN ENTITY WHOSE UNDERLYING
ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT IN THE ENTITY,
AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR HOLD THIS
PREFERRED SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER
IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER SECTION 408(b)(17) OF ERISA,
U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60,
91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE
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AND
HOLDING OF THIS SECURITY, OR ANY INTEREST THEREIN, ARE NOT PROHIBITED BY SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE AND
HOLDING. ANY PURCHASER OR HOLDER OF THE PREFERRED SECURITIES OR ANY INTEREST
THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF
THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN TO WHICH TITLE
I OF ERISA OR SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON
ACTING ON BEHALF OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON
OR ENTITY USING THE “PLAN ASSETS” OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN TO
FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE OR HOLDING WILL NOT RESULT IN
A
PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
FOR WHICH FULL EXEMPTIVE RELIEF IS NOT AVAILABLE UNDER AN APPLICABLE STATUTORY
OR ADMINISTRATIVE EXEMPTION.
THIS
OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY
AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE
CORPORATION.”
(b) The
above
legend shall not be removed from any of the Preferred Securities Certificates
unless there is delivered to the Property Trustee and the Depositor satisfactory
evidence, which may include an Opinion of Counsel, as may be reasonably required
to ensure that any future transfers thereof may be made without restriction
under or violation of the provisions of the Securities Act and other applicable
law. Upon provision of such satisfactory evidence, one or more of the
Administrative Trustees on behalf of the Trust shall execute and deliver to
the
Property Trustee, and the Property Trustee shall authenticate and deliver,
at
the written direction of the Administrative Trustees and the Depositor,
Preferred Securities Certificates that do not bear the legend.
SECTION
5.13. Form
of
Certificate of Authentication.
The
Property Trustee’s certificate of authentication shall be in substantially the
following form:
This
represents Preferred Securities referred to in the within-mentioned Trust
Agreement.
|
Dated:
|
WILMINGTON
TRUST COMPANY, not in its individual capacity, but solely as Property
Trustee
By: ________________________________
Authorized
officer
|
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ARTICLE
VI.
Meetings;
Voting; Acts of Holders
SECTION
6.1. Notice
of
Meetings.
Notice
of
all meetings of the Holders of the Preferred Securities, stating the time,
place
and purpose of the meeting, shall be given by the Property Trustee pursuant
to
Section 11.8 to each Holder of Preferred Securities, at such Holder’s
registered address, at least fifteen (15) days and not more than ninety (90)
days before the meeting. At any such meeting, any business properly before
the
meeting may be so considered whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further
notice.
SECTION
6.2. Meetings
of Holders of the Preferred Securities.
(a) No
annual
meeting of Holders is required to be held. The Property Trustee, however, shall
call a meeting of the Holders of the Preferred Securities to vote on any matter
upon the written request of the Holders of at least twenty five percent (25%)
in
aggregate Liquidation Amount of the Outstanding Preferred Securities and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of the Holders of the Preferred Securities to vote
on
any matters as to which such Holders are entitled to vote.
(b) The
Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, present in person or by proxy, shall constitute a quorum at any
meeting of the Holders of the Preferred Securities.
(c) If
a
quorum is present at a meeting, an affirmative vote by the Holders present,
in
person or by proxy, holding Preferred Securities representing at least a
Majority in Liquidation Amount of the Preferred Securities held by the Holders
present, either in person or by proxy, at such meeting shall constitute the
action of the Holders of the Preferred Securities, unless this Trust Agreement
requires a lesser or greater number of affirmative votes.
SECTION
6.3. Voting
Rights.
Holders
shall be entitled to one vote for each $10,000 of Liquidation Amount represented
by their Outstanding Trust Securities in respect of any matter as to which
such
Holders are entitled to vote.
SECTION
6.4. Proxies,
Etc.
At
any
meeting of Holders, any Holder entitled to vote thereat may vote by proxy,
provided, that no proxy shall be voted at any meeting unless it shall have
been
placed on file with the Administrative Trustees, or with such other officer
or
agent of the Trust as the Administrative Trustees may direct, for verification
prior to the time at which such vote shall be taken. Pursuant to a resolution
of
the Property Trustee, proxies may be solicited in the name of the Property
Trustee or one or more officers of the Property Trustee. Only Holders of record
shall be entitled to vote. When Trust Securities are held jointly by several
Persons, any one of them may vote at any meeting in person or by proxy in
respect of such Trust Securities, but if
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more
than
one of them shall be present at such meeting in person or by proxy, and such
joint owners or their proxies so present disagree as to any vote to be cast,
such vote shall not be received in respect of such Trust Securities. A proxy
purporting to be executed by or on behalf of a Holder shall be deemed valid
unless challenged at or prior to its exercise, and the burden of proving
invalidity shall rest on the challenger. No proxy shall be valid more than
three
years after its date of execution.
SECTION
6.5. Holder
Action by Written Consent.
Any
action that may be taken by Holders at a meeting may be taken without a meeting
and without prior notice if Holders holding at least a Majority in Liquidation
Amount of all Preferred Securities entitled to vote in respect of such action
(or such lesser or greater proportion thereof as shall be required by any other
provision of this Trust Agreement) shall consent to the action in writing;
provided, that notice of such action is promptly provided to the Holders of
Preferred Securities that did not consent to such action. Any action
that may be taken by the Holders of all the Common Securities may be taken
without a meeting and without prior notice if such Holders shall consent to
the
action in writing.
SECTION
6.6. Record
Date for Voting and Other Purposes.
Except
as
provided in Section 6.10(a), for the purposes of determining the Holders
who are entitled to notice of and to vote at any meeting or to act by written
consent, or to participate in any distribution on the Trust Securities in
respect of which a record date is not otherwise provided for in this Trust
Agreement, or for the purpose of any other action, the Administrative Trustees
may from time to time fix a date, not more than ninety (90) days prior to the
date of any meeting of Holders or the payment of a Distribution or other action,
as the case may be, as a record date for the determination of the identity
of
the Holders of record for such purposes.
SECTION
6.7. Acts
of
Holders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Trust Agreement to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
thereof duly appointed in writing; and, except as otherwise expressly provided
herein, such action shall become effective when such instrument or instruments
are delivered to an Administrative Trustee. Such instrument or instruments
(and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the “Act” of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall
be sufficient for any purpose of this Trust Agreement and conclusive in favor
of
the Trustees, if made in the manner provided in this Section
6.7.
(b) The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by a certificate
of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than such signer’s
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individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of such signer’s authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner that any Trustee receiving the same deems
sufficient.
(c) The
ownership of Trust Securities shall be proved by the Securities
Register.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
Act
of the Holder of any Trust Security shall bind every future Holder of the same
Trust Security and the Holder of every Trust Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in
respect of anything done, omitted or suffered to be done by the Trustees, the
Administrative Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
(e) Without
limiting the foregoing, a Holder entitled hereunder to take any action hereunder
with regard to any particular Trust Security may do so with regard to all or
any
part of the Liquidation Amount of such Trust Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such Liquidation Amount.
(f) If
any
dispute shall arise among the Holders or the Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, notice, consent, waiver or other Act of such Holder or Trustee under
this Article VI, then the determination of such matter by the Property
Trustee shall be conclusive with respect to such matter.
SECTION
6.8. Inspection
of Records.
Upon
reasonable written notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection by any Holder
during normal business hours for any purpose reasonably related to such Holder’s
interest as a Holder.
SECTION
6.9. Limitations
on Voting Rights.
(a) Except
as
expressly provided in this Trust Agreement and in the Indenture and as otherwise
required by law, no Holder of Preferred Securities shall have any right to
vote
or in any manner otherwise control the administration, operation and management
of the Trust or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Securities Certificates, be
construed so as to constitute the Holders from time to time as partners or
members of an association.
(b) So
long
as any Notes are held by the Property Trustee on behalf of the Trust, the
Property Trustee shall not (i) direct the time, method and place of conducting
any proceeding for any remedy available to the Note Trustee, or exercise any
trust or power conferred on the Property Trustee with respect to the Notes,
(ii)
waive any past default that may be waived under Section 5.13 of the
Indenture, (iii) exercise any right to rescind or annul a declaration that
the
principal of all the Notes shall be due and payable or (iv) consent to any
amendment, modification or termination of the Indenture or the Notes, where
such
consent shall be required,
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without,
in each case, obtaining the prior approval of the Holders of at least a Majority
in Liquidation Amount of the Preferred Securities; provided, that where a
consent under the Indenture would require the consent of each holder of Notes
(or each Holder of Preferred Securities) affected thereby, no such consent
shall
be given by the Property Trustee without the prior written consent of each
Holder of Preferred Securities. The Property Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of the Preferred
Securities, except by a subsequent vote of the Holders of the Preferred
Securities. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Property Trustee shall, at the expense of the Depositor, obtain
an
Opinion of Counsel experienced in such matters to the effect that such action
shall not cause the Trust to be taxable as a corporation or classified as other
than a grantor trust for United States federal income tax purposes.
(c) If
any
proposed amendment to the Trust Agreement provides for, or the Trustees
otherwise propose to effect, (i) any action that would adversely affect in
any
material respect the powers, preferences or special rights of the Preferred
Securities, whether by way of amendment to the Trust Agreement or otherwise
or
(ii) the dissolution, winding-up or termination of the Trust, other than
pursuant to the terms of this Trust Agreement, then the Holders of Outstanding
Preferred Securities as a class will be entitled to vote on such amendment
or
proposal and such amendment or proposal shall not be effective except with
the
approval of the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities. Notwithstanding any other provision of this Trust
Agreement, no amendment to this Trust Agreement may be made if, as a result
of
such amendment, it would cause the Trust to be taxable as a corporation or
classified as other than a grantor trust for United States federal income tax
purposes.
SECTION
6.10. Acceleration
of Maturity; Rescission of Annulment; Waivers of Past Defaults.
(a) For
so
long as any Preferred Securities remain Outstanding, if, upon a Note Event
of
Default pursuant to paragraphs (c), (e), (f), (g) or
(h) of Section 5.1 of the Indenture, the Note
Trustee fails or the
holders of not less than twenty five percent (25%) in principal amount of the
outstanding Notes fail to declare the principal of all of the Notes to be
immediately due and payable, the Holders of at least twenty-five percent (25%)
in Liquidation Amount of the Preferred Securities then Outstanding shall have
the right to make such declaration by a notice in writing to the Property
Trustee, the Depositor and the Note Trustee. At any time after a
declaration of acceleration with respect to the Notes has been made and before
a
judgment or decree for payment of the money due has been obtained by the Note
Trustee as provided in the Indenture, the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities, by written notice to the
Property Trustee, the Depositor and the Note Trustee, may rescind and annul
such
declaration and its consequences if:
(i) the
Depositor has paid or deposited with the Note Trustee a sum sufficient to
pay:
(A) all
overdue installments of interest on all of the Notes;
(B) any
accrued Additional Interest on all of the Notes;
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(C) the
principal of and premium, if any, on any Notes that have become due otherwise
than by such declaration of acceleration and interest and Additional Interest
thereon at the rate borne by the Notes; and
(D) all
sums
paid or advanced by the Note Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of the Note Trustee, the
Property Trustee and their agents and counsel; and
(ii) all
Note
Events of Default, other than the non-payment of the principal of the Notes
that
has become due solely by such acceleration, have been cured or waived as
provided in Section 5.13 of the Indenture.
Upon
receipt by the Property Trustee of written notice requesting such an
acceleration, or rescission and annulment thereof, by Holders of any part of
the
Preferred Securities, a record date shall be established for determining Holders
of Outstanding Preferred Securities entitled to join in such notice, which
record date shall be at the close of business on the day the Property Trustee
receives such notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice,
whether or not such Holders remain Holders after such record date; provided,
that, unless such declaration of acceleration, or rescission and annulment,
as
the case may be, shall have become effective by virtue of the requisite
percentage having joined in such notice prior to the day that is ninety (90)
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing
in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such ninety (90)-day period, a new written notice of
declaration of acceleration, or rescission and annulment thereof, as the case
may be, that is identical to a written notice that has been canceled pursuant
to
the proviso to the preceding sentence, in which event a new record date shall
be
established pursuant to the provisions of this Section
6.10(a).
(b) For
so
long as any Preferred Securities remain Outstanding, to the fullest extent
permitted by law and subject to the terms of this Trust Agreement and the
Indenture, upon a Note Event of Default specified in paragraph (a), (b) or
(c)
of Section 5.1 of the Indenture, any Holder of Preferred Securities shall
have the right to institute a proceeding directly against the Depositor,
pursuant to Section 5.8 of the Indenture, for enforcement of payment to
such Holder of any amounts payable in respect of Notes having an aggregate
principal amount equal to the aggregate Liquidation Amount of the Preferred
Securities of such Holder. Except as set forth in
Section 6.10(a) and this Section 6.10(b), the Holders of
Preferred Securities shall have no right to exercise directly any right or
remedy available to the holders of, or in respect of, the Notes.
(c) Notwithstanding
paragraphs (a) and (b) of this Section 6.10, the Holders of at least a
Majority in Liquidation Amount of the Preferred Securities may, on behalf of
the
Holders of all the Preferred Securities, waive any Note Event of Default, except
any Note Event of Default arising from the failure to pay any principal of
or
premium, if any, or interest on (including any Additional Interest) the Notes
(unless such Note Event of Default has been cured and a sum sufficient to pay
all matured installments of interest and all principal and premium, if any,
on
all Notes due otherwise than by acceleration has been deposited with the Note
Trustee) or a Note Event of Default in respect of a covenant or provision that
under the Indenture cannot
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be
modified or amended without the consent of the holder of each outstanding
Note. Upon any such waiver, such Note Event of Default shall cease to
exist and any Note Event of Default arising therefrom shall be deemed to have
been cured for every purpose of the Indenture; but no such waiver shall affect
any subsequent Note Event of Default or impair any right consequent
thereon.
(d) Notwithstanding
paragraphs (a) and (b) of this Section 6.10 and subject to paragraph (c),
the Holders of at least a Majority in Liquidation Amount of the Preferred
Securities may, on behalf of the Holders of all the Preferred Securities, waive
any Event of Default and its consequences. Upon such waiver, any such
Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Trust
Agreement, but no such waiver shall extend to any subsequent or other Event
of
Default or impair any right consequent thereon.
(e) The
Holders of a Majority in Liquidation Amount of the Preferred Securities shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee in respect of this Trust
Agreement or the Notes or exercising any trust or power conferred upon the
Property Trustee under this Trust Agreement; provided, that, subject to
Sections 8.5 and 8.7, the Property Trustee shall have the right to
decline to follow any such direction if the Property Trustee being advised
by
counsel determines that the action so directed may not lawfully be taken, or
if
the Property Trustee in good faith shall, by an officer or officers of the
Property Trustee, determine that the proceedings so directed would be illegal
or
involve it in personal liability or be unduly prejudicial to the rights of
Holders not party to such direction, and provided, further, that nothing in
this
Trust Agreement shall impair the right of the Property Trustee to take any
action deemed proper by the Property Trustee and which is not inconsistent
with
such direction.
ARTICLE
VII.
Representations
and Warranties
SECTION
7.1. Representations
and Warranties of the Property Trustee and the Delaware Trustee.
The
Property Trustee and the Delaware Trustee, each severally on behalf of and
as to
itself, hereby represents and warrants for the benefit of the Depositor and
the
Holders that:
(a) the
Property Trustee is a Delaware banking corporation with trust powers, duly
organized, validly existing and in good standing under the laws of the State
of
Delaware;
(b) the
Property Trustee has full corporate power, authority and legal right to execute,
deliver and perform its obligations under this Trust Agreement and has taken
all
necessary action to authorize the execution, delivery and performance by it
of
this Trust Agreement;
(c) the
Delaware Trustee is a Delaware banking corporation, duly organized with trust
powers, validly existing and in good standing under the laws of the State of
Delaware and with its principal place of business in the State of
Delaware;
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(d) the
Delaware Trustee has full corporate power, authority and legal right to execute,
deliver and perform its obligations under this Trust Agreement and has taken
all
necessary action to authorize the execution, delivery and performance by it
of
this Trust Agreement;
(e) this
Trust Agreement has been duly authorized, executed and delivered by the Property
Trustee and the Delaware Trustee and constitutes the legal, valid and binding
agreement of each of the Property Trustee and the Delaware Trustee enforceable
against each of them in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally
and to general principles of equity and the discretion of the court (regardless
of whether considered in a proceeding in equity or at law);
(f) the
execution, delivery and performance of this Trust Agreement have been duly
authorized by all necessary corporate or other action on the part of the
Property Trustee and the Delaware Trustee and do not require any approval of
stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Charter or By-laws
of the Property Trustee or the Delaware Trustee or (ii) violate any applicable
law, governmental rule or regulation of the United States or the State of
Delaware, as the case may be, governing the banking and trust powers of the
Property Trustee or the Delaware Trustee or any order, judgment or decree
applicable to the Property Trustee or the Delaware Trustee;
(g) neither
the authorization, execution or delivery by the Property Trustee or the Delaware
Trustee of this Trust Agreement nor the consummation of any of the transactions
by the Property Trustee or the Delaware Trustee contemplated herein requires
the
consent or approval of, the giving of notice to, the registration with or the
taking of any other action with respect to any governmental authority or agency
under any existing law of the United States or the State of Delaware governing
the banking and trust powers of the Property Trustee or the Delaware Trustee,
as
the case may be; and
(h) to
the
best of each of the Property Trustee’s and the Delaware Trustee’s knowledge,
there are no proceedings pending or threatened against or affecting the Property
Trustee or the Delaware Trustee in any court or before any governmental
authority, agency or arbitration board or tribunal that, individually or in
the
aggregate, would materially and adversely affect the Trust or would question
the
right, power and authority of the Property Trustee or the Delaware Trustee,
as
the case may be, to enter into or perform its obligations as one of the Trustees
under this Trust Agreement.
SECTION
7.2. Representations
and Warranties of Depositor.
The
Depositor hereby represents and warrants for the benefit of the Holders
that:
(a) the
Depositor is a corporation duly organized, validly existing and in good standing
under the laws of its state of incorporation;
(b) the
Depositor has full corporate power, authority and legal right to execute,
deliver and perform its obligations under this Trust Agreement and has taken
all
necessary action to authorize the execution, delivery and performance by it
of
this Trust Agreement;
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(c) this
Trust Agreement has been duly authorized, executed and delivered by the
Depositor and constitutes the legal, valid and binding agreement of the
Depositor enforceable against the Depositor in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and to general principles of equity and the
discretion of the court (regardless of whether considered in a proceeding in
equity or at law);
(d) the
Securities Certificates issued at the Closing Date on behalf of the Trust have
been duly authorized and will have been duly and validly executed, issued and
delivered by the applicable Trustees pursuant to the terms and provisions of,
and in accordance with the requirements of, this Trust Agreement and the Holders
will be, as of such date, entitled to the benefits of this Trust
Agreement;
(e) the
execution, delivery and performance of this Trust Agreement have been duly
authorized by all necessary corporate or other action on the part of the
Depositor and do not require any approval of stockholders of the Depositor
and
such execution, delivery and performance will not (i) violate the articles
or
certificate of incorporation or by-laws (or other organizational documents)
of
the Depositor or (ii) violate any applicable law, governmental rule or
regulation governing the Depositor or any material portion of its property
or
any order, judgment or decree applicable to the Depositor or any material
portion of its property;
(f) neither
the authorization, execution or delivery by the Depositor of this Trust
Agreement nor the consummation of any of the transactions by the Depositor
contemplated herein requires the consent or approval of, the giving of notice
to, the registration with or the taking of any other action with respect to
any
governmental authority or agency under any existing law governing the Depositor
or any material portion of its property; and
(g) there
are
no proceedings pending or, to the best of the Depositor’s knowledge, threatened
against or affecting the Depositor or any material portion of its property
in
any court or before any governmental authority, agency or arbitration board
or
tribunal that, individually or in the aggregate, would materially and adversely
affect the Trust or would question the right, power and authority of the
Depositor, as the case may be, to enter into or perform its obligations under
this Trust Agreement.
ARTICLE
VIII.
The
Trustees
SECTION
8.1. Number
of
Trustees.
The
number of Trustees shall be five (5), provided, that the Property Trustee and
the Delaware Trustee may be the same Person, in which case the number of
Trustees shall be four (4). The number of Trustees may be increased
or decreased by Act of the Holder of the Common Securities subject to
Sections 8.2, 8.3, and 8.4. The death,
resignation, retirement, removal, bankruptcy, incompetence or incapacity to
perform the duties of a Trustee shall not operate to annul, dissolve or
terminate the Trust.
SECTION
8.2. Property
Trustee Required.
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There
shall at all times be a Property Trustee hereunder with respect to the Trust
Securities. The Property Trustee shall be a corporation organized and doing
business under the laws of the United States or of any state thereof, authorized
to exercise corporate trust powers, having a combined capital and surplus of
at
least fifty million dollars ($50,000,000), subject to supervision or examination
by federal or state authority and having an office within the United
States. If any such Person publishes reports of condition at least
annually pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section 8.2, the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If
at any time the Property Trustee shall cease to be eligible in accordance with
the provisions of this Section 8.2, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article
VIII.
SECTION
8.3. Delaware
Trustee Required.
(a) If
required by the Delaware Statutory Trust Act, there shall at all times be a
Delaware Trustee with respect to the Trust Securities. The Delaware Trustee
shall either be (i) a natural person who is at least 21 years of age and a
resident of the State of Delaware or (ii) a legal entity that has its principal
place of business in the State of Delaware, otherwise meets the requirements
of
applicable Delaware law and shall act through one or more persons authorized
to
bind such entity. If at any time the Delaware Trustee shall cease to
be eligible in accordance with the provisions of this Section 8.3, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article VIII.
(b) The
Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities, of the Property
Trustee or the Administrative Trustees set forth herein. The Delaware Trustee
shall be one of the trustees of the Trust for the sole and limited purpose
of
fulfilling the requirements of Section 3807 of the Delaware Statutory Trust
Act
and for taking such actions as are required to be taken by a Delaware trustee
under the Delaware Statutory Trust Act. The duties (including
fiduciary duties), liabilities and obligations of the Delaware Trustee shall
be
limited to (a) accepting legal process served on the Trust in the State of
Delaware and (b) the execution of any certificates required to be filed with
the
Secretary of State of the State of Delaware that the Delaware Trustee is
required to execute under Section 3811 of the Delaware Statutory Trust Act
and
there shall be no other duties (including fiduciary duties) or obligations,
express or implied, at law or in equity, of the Delaware Trustee.
SECTION
8.4. Appointment
of Administrative Trustees.
(a) There
shall at all times be one or more Administrative Trustees hereunder with respect
to the Trust Securities. Each Administrative Trustee shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more persons authorized to bind that entity. Each of the
individuals identified as an “Administrative Trustee” in the preamble of this
Trust Agreement hereby accepts his or her appointment as such.
(b) Except
where a requirement for action by a specific number of Administrative Trustees
is expressly set forth in this Trust Agreement, any act required or permitted
to
be taken
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by,
and
any power of the Administrative Trustees may be exercised by, or with the
consent of, any one such Administrative Trustee. Whenever a vacancy
in the number of Administrative Trustees shall occur, until such vacancy is
filled by the appointment of an Administrative Trustee in accordance with
Section 8.11, the Administrative Trustees in office, regardless of their
number (and notwithstanding any other provision of this Trust Agreement), shall
have all the powers granted to the Administrative Trustees and shall discharge
all the duties imposed upon the Administrative Trustees by this Trust
Agreement.
SECTION
8.5. Duties
and Responsibilities of the Trustees.
(a) The
rights, immunities, duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and there shall be no other duties (including
fiduciary duties) or obligations, express or implied, at law or in equity,
of
the Trustees; provided, however, that if an Event of Default known to the
Property Trustee has occurred and is continuing, the Property Trustee shall,
prior to the receipt of directions, if any, from the Holders of at least a
Majority in Liquidation Amount of the Preferred Securities, exercise such of
the
rights and powers vested in it by this Trust Agreement, and use the same degree
of care and skill in its exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person’s own
affairs. Notwithstanding the foregoing, no provision of this Trust
Agreement shall require any of the Trustees to expend or risk its own funds
or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its or their rights or powers, if it
or
they shall have reasonable grounds for believing that repayment of such funds
or
adequate indemnity against such risk or liability is not reasonably assured
to
it. Whether or not herein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section
8.5. To the extent that, at law or in equity, a Trustee has duties
(including fiduciary duties) to the Trust or to the Holders, such Trustee’s
duties may be restricted or eliminated by the provisions in this Trust
Agreement, except that this Trust Agreement may not eliminate the implied
contractual covenant of good faith and fair dealing. A Trustee shall
not be liable to the Trust or a Holder or another Person that is party to or
is
otherwise bound by this Trust Agreement for breach of fiduciary duty if the
Trustee has relied in good faith on the provisions of this Trust
Agreement. The provisions of this Trust Agreement, to the extent that
they limit or eliminate the liabilities of the Trustees otherwise existing
at
law or in equity, are agreed by the Depositor and the Holders to replace such
other liabilities of the Trustees, except that no provision of this Trust
Agreement may limit or eliminate liability for any act or omission that
constitutes a bad faith violation of the implied contractual covenant of good
faith and fair dealing.
(b) All
payments made by the Property Trustee or a Paying Agent in respect of the Trust
Securities shall be made only from the revenue and proceeds from the Trust
Property and only to the extent that there shall be sufficient revenue or
proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Holder, by
its
acceptance of a Trust Security, agrees that it will look solely to the revenue
and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees are not personally
liable to it for any amount distributable in respect of any Trust Security
or
for any other liability in respect of any Trust
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Security.
This Section 8.5(b) does not limit the liability of the Trustees
expressly set forth elsewhere in this Trust Agreement.
(c) No
provisions of this Trust Agreement shall be construed to relieve the Property
Trustee from liability with respect to matters that are within the authority
of
the Property Trustee under this Trust Agreement for its own negligent action,
negligent failure to act or willful misconduct, except that:
(i) the
Property Trustee shall not be liable for any error or judgment made in good
faith by an authorized officer of the Property Trustee, unless it shall be
proved that the Property Trustee was negligent in ascertaining the pertinent
facts;
(ii) the
Property Trustee shall not be liable with respect to any action taken or omitted
to be taken by it in good faith in accordance with the direction of the Holders
of at least a Majority in Liquidation Amount of the Preferred Securities
relating to the time, method and place of conducting any proceeding for any
remedy available to the Property Trustee hereunder or under the Indenture,
or
exercising any trust or power conferred upon the Property Trustee under this
Trust Agreement;
(iii) the
Property Trustee’s sole duty with respect to the custody, safe keeping and
physical preservation of the Notes and the Payment Account shall be to deal
with
such Property in a similar manner as the Property Trustee deals with similar
property for its own account, subject to the protections and limitations on
liability afforded to the Property Trustee under this Trust
Agreement;
(iv) the
Property Trustee shall not be liable for any interest on any money received
by
it; and money held by the Property Trustee need not be segregated from other
funds held by it except in relation to the Payment Account maintained by the
Property Trustee pursuant to Section 3.1 and except to the extent
otherwise required by law; and
(v) the
Property Trustee shall not be responsible for monitoring the compliance by
the
Administrative Trustees or the Depositor with their respective duties under
this
Trust Agreement, nor shall the Property Trustee be liable for the default or
misconduct of any other Trustee or the Depositor.
SECTION
8.6. Notices
of Defaults and Extensions.
(a) Within
ninety (90) days after the occurrence of a default actually known to the
Property Trustee, the Property Trustee shall transmit notice of such default
to
the Holders, the Administrative Trustees and the Depositor, unless such default
shall have been cured or waived; provided, that, except in the case of a default
in the payment of the principal of or any premium or interest (including any
Additional Interest) on any Trust Security, the Property Trustee shall be fully
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Property Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders of the Trust
Securities. For the purpose of this Section 8.6, the term
“default” means any event that is, or after notice or lapse of time or both
would become, an Event of Default.
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(b) Within
three (3) Business Days after the receipt of written notice of the Depositor’s
exercise of its right to defer the payment of interest on the Notes pursuant
to
the Indenture, the Property Trustee shall transmit, in the manner and to the
extent provided in Section 11.8, notice of such exercise to the Holders
and the Administrative Trustees, unless such exercise shall have been
revoked.
(c) The
Property Trustee shall not be deemed to have knowledge of any default or Event
of Default unless the Property Trustee shall have received written notice
thereof from the Depositor, any Administrative Trustee or any Holder or unless
a
Responsible Officer of the Property Trustee shall have obtained actual knowledge
of such default or Event of Default.
(d) The
Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received with respect to the Notes.
SECTION
8.7. Certain
Rights of Property Trustee.
Subject
to the provisions of Section 8.5:
(a) the
Property Trustee may conclusively rely and shall be protected in acting or
refraining from acting in good faith and in accordance with the terms hereof
upon any resolution, Opinion of Counsel, certificate, written representation
of
a Holder or transferee, certificate of auditors or any other resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, appraisal, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) if
(i) in
performing its duties under this Trust Agreement the Property Trustee is
required to decide between alternative courses of action, (ii) in construing
any
of the provisions of this Trust Agreement the Property Trustee finds a provision
ambiguous or inconsistent with any other provisions contained herein or (iii)
the Property Trustee is unsure of the application of any provision of this
Trust
Agreement, then, except as to any matter as to which the Holders of the
Preferred Securities are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting the Depositor’s written instruction as to the course of action to be
taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take,
or
to refrain from taking, by the Depositor; provided, that if the Property Trustee
does not receive such instructions of the Depositor within ten (10) Business
Days after it has delivered such notice or such reasonably shorter period of
time set forth in such notice, the Property Trustee may, but shall be under
no
duty to, take such action, or refrain from taking such action, as the Property
Trustee shall deem advisable and in the best interests of the Holders, in which
event the Property Trustee shall have no liability except for its own
negligence, bad faith or willful misconduct;
(c) any
direction or act of the Depositor contemplated by this Trust Agreement shall
be
sufficiently evidenced by an Officers’ Certificate unless otherwise expressly
provided herein;
(d) any
direction or act of an Administrative Trustee contemplated by this Trust
Agreement shall be sufficiently evidenced by a certificate executed by such
Administrative Trustee and setting forth such direction or act;
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(e) the
Property Trustee shall have no duty to see to any recording, filing or
registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any re-recording,
re-filing or re-registration thereof;
(f) the
Property Trustee may consult with counsel (which counsel may be counsel to
the
Property Trustee, the Depositor or any of its Affiliates, and may include any
of
its employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(g) the
Property Trustee shall be under no obligation to exercise any of the rights
or
powers vested in it by this Trust Agreement at the request or direction of
any
of the Holders pursuant to this Trust Agreement, unless such Holders shall
have
offered to the Property Trustee reasonable security or indemnity against the
costs, expenses (including reasonable attorneys’ fees and expenses) and
liabilities that might be incurred by it in compliance with such request or
direction, including reasonable advances as may be requested by the Property
Trustee;
(h) the
Property 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, approval, bond, debenture,
note or other evidence of indebtedness or other paper or document, unless
requested in writing to do so by one or more Holders, but the Property Trustee
may make such further inquiry or investigation into such facts or matters as
it
may see fit, and, if the Property Trustee shall determine to make such inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Depositor, personally or by agent or attorney;
(i) the
Property Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through its agents, attorneys,
custodians or nominees and the Property Trustee shall not be responsible for
any
negligence or misconduct on the part of any such agent, attorney, custodian
or
nominee appointed with due care by it hereunder;
(j) whenever
in the administration of this Trust Agreement the Property Trustee shall deem
it
desirable to receive instructions with respect to enforcing any remedy or right
hereunder, the Property Trustee (i) may request instructions from the Holders
(which instructions may only be given by the Holders of the same proportion
in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under this Trust Agreement in respect of such remedy, right
or
action), (ii) may refrain from enforcing such remedy or right or taking such
other action until such instructions are received and (iii) shall be protected
in acting in accordance with such instructions;
(k) except
as
otherwise expressly provided by this Trust Agreement, the Property Trustee
shall
not be under any obligation to take any action that is discretionary under
the
provisions of this Trust Agreement;
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(l) without
prejudice to any other rights available to the Property Trustee under applicable
law, when the Property Trustee incurs expenses or renders services in connection
with a Bankruptcy Event, such expenses (including legal fees and expenses of
its
agents and counsel) and the compensation for such services are intended to
constitute expenses of administration under any Bankruptcy Law or law relating
to creditors rights generally; and
(m) whenever
in the administration of this Trust Agreement the Property Trustee shall deem
it
desirable that a matter be proved or established prior to taking, suffering
or
omitting any action hereunder, the Property Trustee (unless other evidence
be
herein specifically prescribed) may, in the absence of bad faith on its part,
request and rely on an Officers’ Certificate which, upon receipt of such
request, shall be promptly delivered by the Depositor.
No
provision of this Trust Agreement shall be deemed to impose any duty or
obligation on any Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it, in any jurisdiction in
which it shall be illegal, or in which such Person shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts,
or to exercise any such right, power, duty or obligation.
SECTION
8.8. Delegation
of Power.
Any
Trustee may, by power of attorney or otherwise delegate to any other Person
its,
his or her power for the purpose of executing any documents contemplated in
Section 2.5. The Trustees shall have power to delegate from
time to time to such of their number or to the Depositor the doing of such
things and the execution of such instruments either in the name of the Trust
or
the names of the Trustees or otherwise as the Trustees may deem expedient,
to
the extent such delegation is not prohibited by applicable law or contrary
to
the provisions of this Trust Agreement.
SECTION
8.9. May
Hold
Securities.
Any
Trustee or any other agent of any Trustee or the Trust, in its individual or
any
other capacity, may become the owner or pledgee of Trust Securities and except
as provided in the definition of the term “Outstanding” in Article I, may
otherwise deal with the Trust with the same rights it would have if it were
not
a Trustee or such other agent.
SECTION
8.10. Compensation;
Reimbursement; Indemnity.
The
Depositor agrees:
(a) to
pay to
the Trustees from time to time such reasonable compensation for all services
rendered by them hereunder as may be agreed by the Depositor and the Trustees
from time to time (which compensation shall not be limited by any provision
of
law in regard to the compensation of a trustee of an express
trust);
(b) to
reimburse the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the expenses
and disbursements of their
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agents
and counsel), except any such expense, disbursement or advance as may be
attributable to their gross negligence, bad faith or willful misconduct;
and
(c) to
the
fullest extent permitted by applicable law, to indemnify and hold harmless
(i)
each Trustee (including in its individual capacity), (ii) any Affiliate of
any
Trustee, (iii) any officer, director, shareholder, employee, representative
or
agent of any Trustee or any Affiliate of any Trustee and (iv) any employee
or
agent of the Trust (referred to herein as an “Indemnified Person”) from and
against any loss, damage, liability, tax (other than income, franchise or other
taxes imposed on amounts paid pursuant to Section 8.10(a) or (b)
hereof), penalty, expense or claim of any kind or nature whatsoever incurred
without negligence, bad faith or willful misconduct on its part, arising out
of
or in connection with the acceptance or administration of the Trust hereunder,
including the advancement of funds to cover the reasonable costs and expenses
of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
The
Trust
shall have no payment, reimbursement or indemnity obligations to the Trustees
under this Section 8.10. The provisions of this Section
8.10 shall survive the termination of this Trust Agreement and the earlier
removal or resignation of any Trustee.
No
Trustee may claim any Lien on any Trust Property whether before or after
termination of the Trust as a result of any amount due pursuant to this
Section 8.10.
To
the
fullest extent permitted by law, in no event shall the Property Trustee and
the
Delaware Trustee be liable for any indirect, special, punitive or consequential
loss or damage of any kind whatsoever, including, but not limited to, lost
profits, even if the Trustee has been advised of the likelihood of such loss
or
damage and regardless of the form of action.
In
no
event shall the Property Trustee and the Delaware Trustee be liable for any
failure or delay in the performance of its obligations hereunder because of
circumstances beyond its control, including, but not limited to, acts of God,
flood, war (whether declared or undeclared), terrorism, fire, riot, embargo,
government action, including any laws, ordinances, regulations, governmental
action or the like which delay, restrict or prohibit the providing of the
services contemplated by this Trust Agreement.
SECTION
8.11. Resignation
and Removal; Appointment of Successor.
(a) No
resignation or removal of any Trustee and no appointment of a successor Trustee
pursuant to this Article VIII shall become effective until the acceptance
of appointment by the successor Trustee in accordance with the applicable
requirements of Section 8.12.
(b) A
Trustee
may resign at any time by giving written notice thereof to the Depositor and,
in
the case of the Property Trustee and the Delaware Trustee, to the
Holders.
(c) Unless
an
Event of Default shall have occurred and be continuing, the Property Trustee
or
the Delaware Trustee, or both of them, may be removed (with or without cause)
at
any time by Act of the Holder of Common Securities. If an Event of
Default shall have occurred and be continuing, the Property Trustee or the
Delaware Trustee, or both of them, may be removed (with or without cause) at
such time by Act of the Holders of at least a Majority in Liquidation
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Amount
of
the Preferred Securities, delivered to the removed Trustee (in its individual
capacity and on behalf of the Trust). An Administrative Trustee may
be removed (with or without cause) only by Act of the Holder of the Common
Securities at any time.
(d) If
any
Trustee shall resign, be removed or become incapable of acting as Trustee,
or if
a vacancy shall occur in the office of any Trustee for any reason, at a time
when no Event of Default shall have occurred and be continuing, the Holder
of
the Common Securities, by Act of the Holder of the Common Securities, shall
promptly appoint a successor Trustee or Trustees, and such successor Trustee
and
the retiring Trustee shall comply with the applicable requirements of Section
8.12. If the Property Trustee or the Delaware Trustee shall
resign, be removed or become incapable of continuing to act as the Property
Trustee or the Delaware Trustee, as the case may be, at a time when an Event
of
Default shall have occurred and be continuing, the Holders of the Preferred
Securities, by Act of the Holders of a Majority in Liquidation Amount of the
Preferred Securities, shall promptly appoint a successor Property Trustee or
Delaware Trustee, and such successor Property Trustee or Delaware Trustee and
the retiring Property Trustee or Delaware Trustee shall comply with the
applicable requirements of Section 8.12. If an Administrative
Trustee shall resign, be removed or become incapable of acting as Administrative
Trustee, at a time when an Event of Default shall have occurred and be
continuing, the Holder of the Common Securities by Act of the Holder of Common
Securities shall promptly appoint a successor Administrative Trustee and such
successor Administrative Trustee and the retiring Administrative Trustee shall
comply with the applicable requirements of Section 8.12. If no
successor Trustee shall have been so appointed by the Holder of the Common
Securities or Holders of the Preferred Securities, as the case may be, and
accepted appointment in the manner required by Section 8.12 within thirty
(30) days after the giving of a notice of resignation by a Trustee, the removal
of a Trustee, or a Trustee becoming incapable of acting as such Trustee, any
Holder who has been a Holder of Preferred Securities for at least six (6) months
may, on behalf of himself and all others similarly situated, and any resigning
Trustee may, in each case, at the expense of the Depositor, petition any court
of competent jurisdiction for the appointment of a successor
Trustee.
(e) The
Depositor shall give notice of each resignation and each removal of the Property
Trustee or the Delaware Trustee and each appointment of a successor Property
Trustee or Delaware Trustee to all Holders in the manner provided in Section
11.8. Each notice shall include the name of the successor
Property Trustee or Delaware Trustee and the address of its Corporate Trust
Office if it is the Property Trustee.
(f) Notwithstanding
the foregoing or any other provision of this Trust Agreement, in the event
any
Administrative Trustee or a Delaware Trustee who is a natural person dies or
becomes, in the opinion of the Holder of Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity
may
be filled by (i) the unanimous act of the remaining Administrative Trustees
if
there are at least two of them or (ii) otherwise by the Holder of the Common
Securities (with the successor in each case being a Person who satisfies the
eligibility requirement for Administrative Trustees or Delaware Trustee, as
the
case may be, set forth in Sections 8.3 and 8.4).
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(g) Upon
the
appointment of a successor Delaware Trustee, such successor Delaware Trustee
shall file a Certificate of Amendment to the Certificate of Trust in accordance
with Section 3810 of the Delaware Statutory Trust Act.
SECTION
8.12. Acceptance
of Appointment by Successor.
(a) In
case
of the appointment hereunder of a successor Trustee, each successor Trustee
shall execute and deliver to the Depositor and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request
of
the Trust or any successor Trustee such retiring Trustee shall, upon payment
of
its charges, duly assign, transfer and deliver to such successor Trustee all
Trust Property, all proceeds thereof and money held by such retiring Trustee
hereunder with respect to the Trust Securities and the Trust.
(b) Upon
request of any such successor Trustee, the Trust (or the retiring Trustee if
requested by the Depositor) shall execute any and all instruments for more
fully
and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in the preceding paragraph.
(c) No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article VIII.
SECTION
8.13. Merger,
Conversion, Consolidation or Succession to Business.
Any
Person into which the Property Trustee or the Delaware Trustee may be merged
or
converted or with which it may be consolidated, or any Person resulting from
any
merger, conversion or consolidation to which such Trustee shall be a party,
or
any Person succeeding to all or substantially all the corporate trust business
of such Trustee, shall be the successor of such Trustee hereunder, without
the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided, that such Person shall be otherwise qualified and
eligible under this Article VIII.
SECTION
8.14. Not
Responsible for Recitals or Issuance of Securities.
The
recitals contained herein and in the Securities Certificates shall be taken
as
the statements of the Trust and the Depositor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no
representations as to the title to, or value or condition of, the property
of
the Trust or any part thereof, nor as to the validity or sufficiency of this
Trust Agreement, the Notes or the Trust Securities. The Trustees
shall not be accountable for the use or application by the Depositor of the
proceeds of the Notes.
SECTION
8.15. Property
Trustee May File Proofs of Claim.
(a) In
case
of any Bankruptcy Event (or event that with the passage of time would become
a
Bankruptcy Event) relative to the Trust or any other obligor upon the Trust
Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee
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(irrespective
of whether any Distributions on the Trust Securities shall then be due and
payable and irrespective of whether the Property Trustee shall have made any
demand on the Trust for the payment of any past due Distributions) shall be
entitled and empowered, to the fullest extent permitted by law, by intervention
in such proceeding or otherwise:
(i) to
file
and prove a claim for the whole amount of any Distributions owing and unpaid
in
respect of the Trust Securities and to file such other papers or documents
as
may be necessary or advisable in order to have the claims of the Property
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel)
and
of the Holders allowed in such judicial proceeding; and
(ii) to
collect and receive any monies or other property payable or deliverable on
any
such claims and to distribute the same;
and
any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such proceeding is hereby authorized by each Holder
to
make such payments to the Property Trustee and, in the event the Property
Trustee shall consent to the making of such payments directly to the Holders,
to
pay to the Property Trustee first any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee,
its
agents and counsel, and any other amounts due the Property Trustee.
(b) Nothing
herein contained shall be deemed to authorize the Property Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or compensation affecting the Trust
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION
8.16. Reports
to and from the Property Trustee.
(a) The
Depositor and the Administrative Trustees shall deliver to the Property Trustee,
not later than one hundred and twenty (120) days after the end of each fiscal
year of the Depositor ending after the date hereof, an Officers’ Certificate
(substantially in the form attached hereto as Exhibit H) covering the
preceding fiscal year, stating whether or not to the knowledge of the signers
thereof the Depositor, the Administrative Trustees or the Trust are in default
in the performance or observance of any of the terms, provisions and conditions
of this Trust Agreement (without regard to any period of grace or requirement
of
notice provided hereunder) and, if the Depositor, the Administrative Trustees
or
the Trust shall be in default, specifying all such defaults and the nature
and
status thereof of which they have knowledge.
(b) The
Depositor shall furnish to (i) the Property Trustee, (ii) the Purchaser, (iii)
any Owner of the Preferred Securities reasonably identified to the Depositor
or
the Trust (which identification may be made either by such Owner or by the
Purchaser) and (iv) any designee of (i), (ii) or (iii) above, a duly completed
and executed certificate in the form attached hereto as Exhibit G,
including the financial statements referenced in such Exhibit, which certificate
and financial statements shall be so furnished by the Depositor not later than
forty five (45) days after
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the
end of each of the first three fiscal quarters of each fiscal year of the
Depositor and not later than ninety (90) days after the end of each fiscal
year
of the Depositor.
(c) The
Property Trustee shall receive all reports, certificates and information, which
it is entitled to obtain under each of the Operative Documents, and deliver
to
the Purchaser or its designee as identified in writing to the Property Trustee,
copies of all such reports, certificates or information promptly upon receipt
thereof.
ARTICLE
IX.
Termination,
Liquidation and Merger
SECTION
9.1. Dissolution
Upon Expiration Date.
Unless
earlier dissolved, the Trust shall automatically dissolve on October 30, 2038
(the “Expiration Date”), and the Trust Property shall be liquidated in
accordance with Section 9.4.
SECTION
9.2. Early
Termination.
The
first
to occur of any of the following events is an “Early Termination Event”, upon
the occurrence of which the Trust shall be dissolved:
(a) the
occurrence of a Bankruptcy Event in respect of, or the dissolution or
liquidation of, the Depositor, in its capacity as the Holder of the Common
Securities, unless the Depositor shall have transferred the Common Securities
as
provided by Section 5.11, in which case this provision shall refer
instead to any such successor Holder of the Common Securities;
(b) the
written direction to the Property Trustee from the Holder of the Common
Securities at any time to dissolve the Trust and, after satisfaction of any
liabilities of the Trust as required by applicable law, to distribute the Notes
to Holders in exchange for the Preferred Securities (which direction is optional
and wholly within the discretion of the Holder of the Common Securities),
provided, that the Holder of the Common Securities shall have received the
prior
approval of the Federal Reserve if then required;
(c) the
redemption of all of the Preferred Securities in connection with the payment
at
maturity or redemption of all the Notes; and
(d) the
entry
of an order for dissolution of the Trust by a court of competent
jurisdiction.
SECTION
9.3. Termination.
The
respective obligations and responsibilities of the Trustees and the Trust shall
terminate upon the latest to occur of the following: (a) the distribution by
the
Property Trustee to Holders of all amounts required to be distributed hereunder
upon the liquidation of the Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2;
(b) the satisfaction of any expenses owed by the Trust; and (c) the discharge
of
all
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administrative
duties of the Administrative Trustees, including the performance of any tax
reporting obligations with respect to the Trust or the Holders.
SECTION
9.4. Liquidation.
(a) If
an
Early Termination Event specified in Section 9.2(a), (b) or
(d) occurs or upon the Expiration Date, the Trust shall
be liquidated by
the Property Trustee as expeditiously as the Property Trustee shall determine
to
be possible by distributing, after satisfaction of liabilities to creditors
of
the Trust as provided by applicable law, to each Holder a Like Amount of Notes,
subject to Section 9.4(d). Notice of liquidation shall be given by the
Property Trustee not less than thirty (30) nor more than sixty (60) days prior
to the Liquidation Date to each Holder of Trust Securities at such Holder’s
address appearing in the Securities Register. All such notices of liquidation
shall:
(i) state
the
Liquidation Date;
(ii) state
that from and after the Liquidation Date, the Trust Securities will no longer
be
deemed to be Outstanding and (subject to Section 9.4(d)) any Securities
Certificates not surrendered for exchange will be deemed to represent a Like
Amount of Notes; and
(iii) provide
such information with respect to the mechanics by which Holders may exchange
Securities Certificates for Notes, or if Section 9.4(d) applies, receive
a Liquidation Distribution, as the Property Trustee shall deem
appropriate.
(b) Except
where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Trust and distribution of the Notes to Holders, the Property
Trustee, either itself acting as exchange agent or through the appointment
of a
separate exchange agent, shall establish a record date for such distribution
(which shall not be more than forty-five (45) days prior to the Liquidation
Date
nor prior to the date on which notice of such liquidation is given to the
Holders) and establish such procedures as it shall deem appropriate to effect
the distribution of Notes in exchange for the Outstanding Securities
Certificates.
(c) Except
where Section 9.2(c) or 9.4(d) applies, after the Liquidation
Date, (i) the Trust Securities will no longer be deemed to be Outstanding,
(ii)
certificates representing a Like Amount of Notes will be issued to Holders
of
Securities Certificates, upon surrender of such Certificates to the exchange
agent for exchange, (iii) the Depositor shall use its best efforts to have
the
Notes listed on the New York Stock Exchange or on such other exchange,
interdealer quotation system or self-regulatory organization on which the
Preferred Securities are then listed, if any, (iv) Securities Certificates
not
so surrendered for exchange will be deemed to represent a Like Amount of Notes
bearing accrued and unpaid interest in an amount equal to the accumulated and
unpaid Distributions on such Securities Certificates until such certificates
are
so surrendered (and until such certificates are so surrendered, no payments
of
interest or principal will be made to Holders of Securities Certificates with
respect to such Notes) and (v) all rights of Holders holding Trust Securities
will cease, except the right of such Holders to receive Notes upon surrender
of
Securities Certificates.
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(d) Notwithstanding
the other provisions of this Section 9.4, if distribution of the Notes in
the manner provided herein is determined by the Property Trustee not to be
permitted or practical, the Trust Property shall be liquidated, and the Trust
shall be wound up by the Property Trustee in such manner as the Property Trustee
determines. In such event, Holders will be entitled to receive out of
the assets of the Trust available for distribution to Holders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the Liquidation Amount per Trust Security plus
accumulated and unpaid Distributions thereon to the date of payment (such amount
being the “Liquidation Distribution”). If, upon any such winding up the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The Holder of the Common Securities will be entitled
to receive Liquidation Distributions upon any such winding up pro rata (based
upon Liquidation Amounts) with Holders of all Trust Securities, except that,
if
an Event of Default has occurred and is continuing, the Preferred Securities
shall have a priority over the Common Securities as provided in Section
4.3.
SECTION
9.5. Mergers,
Consolidations, Amalgamations or Replacements of Trust.
The
Trust
may not merge with or into, consolidate, amalgamate, or be replaced by, or
convey, transfer or lease its properties and assets substantially as an entirety
to, any Person except pursuant to this Article IX. At the request of the
Holders of the Common Securities, without the consent of the Holders of the
Preferred Securities, the Trust may merge with or into, consolidate, amalgamate,
or be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under the laws of
any
State; provided, that:
(a) such
successor entity either (i) expressly assumes all of the obligations of the
Trust under this Trust Agreement with respect to the Preferred Securities or
(ii) substitutes for the Preferred Securities other securities having
substantially the same terms as the Preferred Securities (such other Securities,
the “Successor Securities”) so long as the Successor Securities have the same
priority as the Preferred Securities with respect to distributions and payments
upon liquidation, redemption and otherwise;
(b) a
trustee
of such successor entity possessing substantially the same powers and duties
as
the Property Trustee is appointed to hold the Notes;
(c) if
the
Preferred Securities or the Notes are rated, such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Preferred Securities or the Notes (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization that
then assigns a rating to the Preferred Securities or the Notes;
(d) the
Preferred Securities are listed, or any Successor Securities will be listed
upon
notice of issuance, on any national securities exchange or interdealer quotation
system on which the Preferred Securities are then listed, if any;
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(e) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the Holders
of the Preferred Securities (including any Successor Securities) in any material
respect;
(f) such
successor entity has a purpose substantially identical to that of the
Trust;
(g) prior
to
such merger, consolidation, amalgamation, replacement, conveyance, transfer
or
lease, the Depositor has received an Opinion of Counsel to the effect that
(i)
such merger, consolidation, amalgamation, replacement, conveyance, transfer
or
lease does not adversely affect the rights, preferences and privileges of the
Holders of the Preferred Securities (including any Successor Securities) in
any
material respect; (ii) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity will be required to register as an “investment company” under the
Investment Company Act and (iii) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Trust (or the
successor entity) will continue to be classified as a grantor trust for U.S.
federal income tax purposes; and
(h) the
Depositor or its permitted transferee owns all of the common securities of
such
successor entity and guarantees the obligations of such successor entity under
the Successor Securities at least to the extent provided by the Guarantee
Agreement.
Notwithstanding
the foregoing, the Trust shall not, except with the consent of Holders of all
of
the Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to any other Person or permit any other entity to consolidate,
amalgamate, merge with or into, or replace, the Trust if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause
the
Trust or the successor entity to be taxable as a corporation or classified
as
other than a grantor trust for United States federal income tax purposes or
cause the Notes to be treated as other than indebtedness of the Depositor for
United States federal income tax purposes.
ARTICLE
X.
Information
to Purchaser
SECTION
10.1. Depositor
Obligations to Purchaser.
Notwithstanding
any other provision herein, the Depositor shall furnish to (a) the Purchaser,
(b) any Owner of the Preferred Securities reasonably identified to the Depositor
or the Trust (which identification may be made either by such Owner or by the
Purchaser) and (c) any designee of (a) or (b) above, copies of all
correspondence, notices, forms, filings, reports and other documents required
to
be provided by the Depositor, whether acting through an Administrative Trustee
or otherwise, to the Property Trustee or Delaware Trustee under this Trust
Agreement.
SECTION
10.2. Property
Trustee’s Obligations to Purchaser.
Notwithstanding
any other provision herein, the Property Trustee shall furnish to the Purchaser,
or its designee, as identified in writing to the Property Trustee, copies of
all
(i)
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correspondence,
notices, forms, filings, reports and other documents received by the Property
Trustee or Delaware Trustee from the Depositor, whether acting through an
Administrative Trustee or otherwise, under this Trust Agreement, and (ii) all
correspondence, notices, forms, filings, reports and other documents required
to
be provided to the Depositor or a Holder by the Property Trustee or Delaware
Trustee under this Trust Agreement.
ARTICLE
XI.
Miscellaneous
Provisions
SECTION
11.1. Limitation
of Rights of Holders.
Except
as
set forth in Section 9.2, the death, bankruptcy, termination, dissolution
or incapacity of any Person having an interest, beneficial or otherwise, in
Trust Securities shall not operate to terminate this Trust Agreement, nor annul,
dissolve or terminate the Trust nor entitle the legal representatives or heirs
of such Person or any Holder for such Person, to claim an accounting, take
any
action or bring any proceeding in any court for a partition or winding up of
the
arrangements contemplated hereby, nor otherwise affect the rights, obligations
and liabilities of the parties hereto or any of them.
SECTION
11.2. Agreed
Tax Treatment of Trust and Trust Securities.
The
parties hereto and, by its acceptance or acquisition of a Trust Security or
a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, such Trust Security intend and agree to treat the Trust
as a grantor trust for United States federal, state and local tax purposes,
and
to treat the Trust Securities (including all payments and proceeds with respect
to such Trust Securities) as undivided beneficial ownership interests in the
Trust Property (and payments and proceeds therefrom, respectively) for United
States federal, state and local tax purposes and to treat the Notes as
indebtedness of the Depositor for United States federal, state and local tax
purposes. The provisions of this Trust Agreement shall be interpreted
to further this intention and agreement of the parties.
SECTION
11.3. Amendment.
(a) This
Trust Agreement may be amended from time to time by the Property Trustee, the
Administrative Trustees and the Holder of all the Common Securities, without
the
consent of any Holder of the Preferred Securities, (i) to cure any ambiguity,
correct or supplement any provision herein that may be defective or inconsistent
with any other provision herein, or to make or amend any other provisions with
respect to matters or questions arising under this Trust Agreement, which shall
not be inconsistent with the other provisions of this Trust Agreement, (ii)
to
modify, eliminate or add to any provisions of this Trust Agreement to such
extent as shall be necessary to ensure that the Trust will neither be taxable
as
a corporation nor be classified as other than a grantor trust for United States
federal income tax purposes at all times that any Trust Securities are
Outstanding or to ensure that the Notes are treated as indebtedness of the
Depositor for United States federal income tax purposes, or to ensure that
the
Trust will not be required to register as an “investment company” under the
Investment
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Company
Act or (iii) to add to the covenants, restrictions or obligations of the
Depositor; provided, that in the case of clauses (i), (ii) or (iii), such action
shall not adversely affect in any material respect the interests of any
Holder.
(b) Except
as
provided in Section 11.3(c), any provision of this Trust Agreement may be
amended by the Property Trustee, the Administrative Trustees and the Holder
of
all of the Common Securities and with (i) the consent of Holders of at least
a
Majority in Liquidation Amount of the Preferred Securities and (ii) receipt
by
the Trustees of an Opinion of Counsel to the effect that such amendment or
the
exercise of any power granted to the Trustees in accordance with such amendment
will not cause the Trust to be taxable as a corporation or classified as other
than a grantor trust for United States federal income tax purposes or affect
the
treatment of the Notes as indebtedness of the Depositor for United States
federal income tax purposes or affect the Trust’s exemption from status (or from
any requirement to register) as an “investment company” under the Investment
Company Act.
(c) Notwithstanding
any other provision of this Trust Agreement, without the consent of each Holder,
this Trust Agreement may not be amended to (i) change the accrual rate, amount,
currency or timing of any Distribution on or the redemption price of the Trust
Securities or otherwise adversely affect the amount of any Distribution or
other
payment required to be made in respect of the Trust Securities as of a specified
date, (ii) restrict or impair the right of a Holder to institute suit for the
enforcement of any such payment on or after such date, (iii) reduce the
percentage of aggregate Liquidation Amount of Outstanding Preferred Securities,
the consent of whose Holders is required for any such amendment, or the consent
of whose Holders is required for any waiver of compliance with any provision
of
this Trust Agreement or of defaults hereunder and their consequences provided
for in this Trust Agreement; (iv) impair or adversely affect the rights and
interests of the Holders in the Trust Property, or permit the creation of any
Lien on any portion of the Trust Property; or (v) modify the definition of
“Outstanding,” in this Section 11.3(c), Sections 4.1, 4.2,
4.3, 6.10(e) or Article IX.
(d) Notwithstanding
any other provision of this Trust Agreement, no Trustee shall enter into or
consent to any amendment to this Trust Agreement that would cause the Trust
to
be taxable as a corporation or to be classified as other than a grantor trust
for United States federal income tax purposes or that would cause the Notes
to
fail or cease to be treated as indebtedness of the Depositor for United States
federal income tax purposes or that would cause the Trust to fail or cease
to
qualify for the exemption from status (or from any requirement to register)
as
an “investment company” under the Investment Company Act.
(e) If
any
amendment to this Trust Agreement is made, the Administrative Trustees or the
Property Trustee shall promptly provide to the Depositor and the Note Trustee
a
copy of such amendment.
(f) No
Trustee shall be required to enter into any amendment to this Trust Agreement
that affects its own rights, duties or immunities under this Trust
Agreement. The Trustees shall be entitled to receive an Opinion of
Counsel and an Officers’ Certificate stating that any amendment to this Trust
Agreement is in compliance with this Trust Agreement and all conditions
precedent herein provided for relating to such action have been
met.
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(g) No
amendment or modification to this Trust Agreement that adversely affects in
any
material respect the rights, duties, liabilities, indemnities or immunities
of
the Delaware Trustee hereunder shall be permitted without the prior written
consent of the Delaware Trustee.
SECTION
11.4. Separability.
If
any
provision in this Trust Agreement or in the Securities Certificates 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,
and there shall be deemed substituted for the provision at issue a valid, legal
and enforceable provision as similar as possible to the provision at
issue.
SECTION
11.5. Governing
Law.
THIS
TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS, THE
TRUST, THE DEPOSITOR AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND
THE TRUST SECURITIES SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO ITS CONFLICTS
OF LAWS PROVISIONS.
SECTION
11.6. Successors.
This
Trust Agreement shall be binding upon and shall inure to the benefit of any
successor to the Depositor, the Trust and any Trustee, including any successor
by operation of law. Except in connection with a transaction involving the
Depositor that is permitted under Article VIII of the Indenture and
pursuant to which the assignee agrees in writing to perform the Depositor’s
obligations hereunder, the Depositor shall not assign its obligations
hereunder.
SECTION
11.7. Headings.
The
Article and Section headings are for convenience only and shall not affect
the
construction of this Trust Agreement.
SECTION
11.8. Reports,
Notices and Demands.
(a) Any
report, notice, demand or other communication that by any provision of this
Trust Agreement is required or permitted to be given or served to or upon any
Holder or the Depositor may be given or served in writing delivered in person,
or by reputable, overnight courier, by telecopy or by deposit thereof,
first-class postage prepaid, in the United States mail, addressed, (a) in the
case of a Holder of Preferred Securities, to such Holder as such Holder’s name
and address may appear on the Securities Register; and (b) in the case of the
Holder of all the Common Securities or the Depositor, to Harleysville National
Corporation, 000 Xxxx Xx., Xxxxxxxxxxxx, XX 00000, Attention: Chief
Financial Officer, or to such other address as may be specified in a written
notice by the Holder of all the Common Securities or the Depositor, as the
case
may be, to the Property Trustee. Such report, notice, demand or other
communication to or upon a Holder or the Depositor shall be deemed to have
been
given when received in person, within one (1) Business Day following delivery
by
overnight courier, when telecopied with
-58-
receipt
confirmed, or within three (3) Business Days following delivery by mail, except
that if a notice or other document is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such notice or other
document shall be deemed to have been delivered on the date of such refusal
or
inability to deliver.
(b) Any
notice, demand or other communication that by any provision of this Trust
Agreement is required or permitted to be given or served to or upon the Property
Trustee, the Delaware Trustee, the Administrative Trustees or the Trust shall
be
given in writing by deposit thereof, first-class postage prepaid, in the U.S.
mail, personal delivery or facsimile transmission, addressed to such Person
as
follows: (a) with respect to the Property Trustee and the Delaware Trustee,
to
Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Capital Markets, facsimile
no. (000) 000-0000; (b) with respect to the Administrative Trustees, to them
at
the address above for notices to the Depositor, marked “Attention:
Administrative Trustees of HNC Statutory Trust IV,” and (c) with respect to the
Trust, to its principal executive office specified in Section 2.2, with a
copy to the Property Trustee. Such notice, demand or other communication to
or
upon the Trust, the Property Trustee or the Administrative Trustees shall be
deemed to have been sufficiently given or made only upon actual receipt of
the
writing by the Trust, the Property Trustee or the Administrative
Trustees.
SECTION
11.9. Agreement
Not to Petition.
Each
of
the Trustees and the Depositor agree for the benefit of the Holders that, until
at least one year and one day after the Trust has been terminated in accordance
with Article IX, they shall not file, or join in the filing of, a
petition against the Trust under any Bankruptcy Law or otherwise join in the
commencement of any proceeding against the Trust under any Bankruptcy Law.
If
the Depositor takes action in violation of this Section 11.9, the
Property Trustee agrees, for the benefit of Holders, that at the expense of
the
Depositor, it shall file an answer with the applicable bankruptcy court or
otherwise properly contest the filing of such petition by the Depositor against
the Trust or the commencement of such action and raise the defense that the
Depositor has agreed in writing not to take such action and should be estopped
and precluded therefrom and such other defenses, if any, as counsel for the
Property Trustee or the Trust may assert.
This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument. Delivery of an
executed signature page of this Amended and Restated Trust Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
-59-
IN
WITNESS WHEREOF, the parties hereto have executed this Amended and Restated
Trust Agreement as of the day and year first above written.
|
Harleysville
National Corporation,
as
Depositor
By: /s/
Xxxx X. Xxxxxxxx
Name: Xxxx
X. Xxxxxxxx
Title: Chief
Executive Officer and President
|
|
|
Wilmington
Trust Company, as Property Trustee
By: /s/
W. Xxxxxx Xxxxxx, II
Name: W. Xxxxxx Xxxxxx, II
Title: Assistant Vice
President
|
Wilmington
Trust Company, as Delaware Trustee
By: /s/
W. Xxxxxx Xxxxxx, II
Name: W.
Xxxxxx Xxxxxx, II
Title: Assistant
Vice President
|
|
/s/
Xxxx X. Xxxxxxxx
Administrative
Trustee
Name:
Xxxx X.
Xxxxxxxx
|
/s/
Xxxxxxx X. High
Administrative
Trustee
Name:
Xxxxxxx X.
High
|
|
/s/
Xxxxxx X. Xxxx
Administrative
Trustee
Name:
Xxxxxx X.
Xxxx
|
[SIGNATURE
PAGE – AMENDED AND RESTATED TRUST AGREEMENT]
Exhibit
A
CERTIFICATE
OF TRUST
OF
HNC
STATUTORY TRUST IV
This
Certificate of Trust of HNC Statutory Trust IV (the “Trust”) is being
duly executed and filed on behalf of the Trust by the undersigned, as trustees,
to form a statutory trust under the Delaware Statutory Trust Act (12 Del.
C. §3801 etseq.) (the “Act”).
1. Name. The
name of the statutory trust formed by this Certificate of Trust
is: HNC Statutory Trust IV.
2. Delaware
Trustee. The name and business address of the trustee of the
Trust with its principal place of business in the State of Delaware are
Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Capital
Markets.
3. Effective
Date. This Certificate of Trust shall be effective upon its
filing with the Secretary of State of the State of Delaware.
IN
WITNESS WHEREOF, the undersigned have duly executed this Certificate of Trust
in
accordance with Section 3811(a)(1) of the Act.
Wilmington
Trust Company, not in its individual capacity, but solely as Property
Trustee
By:
Name: W.
Xxxxxx Xxxxxx, II
Title: Assistant
Vice President
Wilmington
Trust Company, not in its individual capacity, but solely as Delaware
Trustee
By:
Name: W.
Xxxxxx Xxxxxx, II
Title: Assistant
Vice President
A-1
Exhibit
B
[FORM
OF
COMMON SECURITIES CERTIFICATE]
THIS
COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS
AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT
TO AN EXEMPTION FROM REGISTRATION. THIS CERTIFICATE IS NOT
TRANSFERABLE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE
TRUST AGREEMENT.
|
Certificate
Number C-1
|
696
Common Securities
|
Certificate
Evidencing Common Securities
of
HNC
Statutory Trust IV
Common
Securities
(liquidation
amount $1,000 per Common Security)
HNC
Statutory Trust IV, a statutory trust created under the laws of the State of
Delaware (the “Trust”), hereby certifies that Harleysville National Corporation
(the “Holder”) is the registered owner of 696 common securities of the Trust
representing undivided common beneficial interests in the assets of the Trust
and designated the HNC Statutory Trust IV Common Securities (liquidation amount
$1,000 per Common Security) (the “Common Securities”). Except in accordance with
Section 5.11 of the Trust Agreement (as defined below), the Common
Securities are not transferable and, to the fullest extent permitted by law,
any
attempted transfer hereof other than in accordance therewith shall be void.
The
designations, rights, privileges, restrictions, preferences and other terms
and
provisions of the Common Securities are set forth in, and this certificate
and
the Common Securities represented hereby are issued and shall in all respects
be
subject to the terms and provisions of, the Amended and Restated Trust Agreement
of the Trust, dated as of August 22, 2007, as the same may be amended from
time
to time (the “Trust Agreement”), among Harleysville National Corporation, as
Depositor, Wilmington Trust Company, as Property Trustee, Wilmington Trust
Company, as Delaware Trustee, the Administrative Trustees named therein and
the
Holders, from time to time, of Trust Securities. The Trust will furnish a copy
of the Trust Agreement to the Holder without charge upon written request to
the
Trust at its principal place of business or registered office.
Upon
receipt of this certificate, the Holder is bound by the Trust Agreement and
is
entitled to the benefits thereunder.
B-1
This
Common Securities Certificate shall be governed by and construed in accordance
with the laws of the State of Delaware.
Terms
used but not defined herein have the meanings set forth in the Trust
Agreement.
In
Witness Whereof, one of the Administrative Trustees of the Trust has executed
on
behalf of the Trust this certificate this 22nd day of
August.
HNC
Statutory Trust IV
By:
Name: Xxxx
X.
Xxxxxxxx
Administrative
Trustee
B-2
Exhibit
C
[FORM
OF
PREFERRED SECURITIES CERTIFICATE]
[IF
THIS SECURITY IS A GLOBAL SECURITY INSERT: THIS PREFERRED SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”) OR A
NOMINEE OF DTC. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE
ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT, AND NO TRANSFER
OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED SECURITY
AS
A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER
NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS
THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
TO
HNC STATUTORY TRUST IV OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR
PAYMENT, AND ANY PREFERRED SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
THE
PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED
IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND SUCH PREFERRED SECURITIES OR ANY INTEREST
THEREIN MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF
ANY PREFERRED SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF THE PREFERRED
SECURITIES MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF
THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.
THE
HOLDER OF THE PREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR
THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT (A) SUCH PREFERRED SECURITIES
MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO THE TRUST, (II)
TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER”
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING
THE
REQUIREMENTS OF RULE 144A, OR (III) TO AN INSTITUTIONAL “ACCREDITED INVESTOR”
WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER
THE SECURITIES ACT THAT IS ACQUIRING THE
C-1
SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,” WITHIN THE
MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER
OR
SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
IN
EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND, IN THE CASE OF (III),
SUBJECT TO THE RIGHT OF THE TRUST AND THE DEPOSITOR TO REQUIRE AN OPINION OF
COUNSEL ADDRESSING COMPLIANCE WITH THE U.S. SECURITIES LAWS, AND OTHER
INFORMATION SATISFACTORY TO EACH OF THEM AND (B) THE HOLDER WILL NOTIFY ANY
PURCHASER OF ANY PREFERRED SECURITIES FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.
THE
PREFERRED SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING
AN AGGREGATE LIQUIDATION AMOUNT OF NOT LESS THAN $100,000. TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY ATTEMPTED TRANSFER OF PREFERRED SECURITIES
OR ANY INTEREST THEREIN IN A BLOCK HAVING AN AGGREGATE LIQUIDATION AMOUNT OF
LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED
TO
BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE
HOLDER OF SUCH PREFERRED SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED
TO, THE RECEIPT OF LIQUIDATION AMOUNT OF OR DISTRIBUTIONS ON SUCH PREFERRED
SECURITIES OR ANY INTEREST THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL BE
DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH PREFERRED SECURITIES.
THE
HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE
HEREOF OR THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN
EMPLOYEE BENEFIT PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR
ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF
1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE “CODE”) (EACH A “PLAN”), OR AN ENTITY WHOSE UNDERLYING
ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT IN THE ENTITY,
AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR HOLD THIS
PREFERRED SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER
IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER SECTION 408(b)(17) OF ERISA,
U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60,
91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING
OF THIS SECURITY, OR ANY INTEREST THEREIN, ARE NOT PROHIBITED BY SECTION 406
OF
ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE AND HOLDING.
ANY
PURCHASER OR HOLDER OF THE PREFERRED SECURITIES OR ANY INTEREST THEREIN WILL
BE
DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER
(i)
IT IS NOT AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN TO WHICH TITLE I OF ERISA
OR
SECTION 4975 OF
C-2
THE
CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH
EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE “PLAN
ASSETS” OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR
(ii) SUCH PURCHASE OR HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH FULL EXEMPTIVE RELIEF
IS NOT AVAILABLE UNDER AN APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.
THIS
OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY
AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE
CORPORATION.
C-3
|
Certificate
Number P-1
|
22,500
Preferred Securities
$22,500,000
Aggregate Liquidation Amount
|
CUSIP
NO.
433684
AA5
Certificate
Evidencing Preferred Securities
of
HNC
Statutory Trust IV
Preferred
Securities
(liquidation
amount $1,000 per Preferred Security)
HNC
Statutory Trust IV, a statutory trust created under the laws of the State of
Delaware (the “Trust”), hereby certifies that Cede & Co. (the “Holder”) is
the registered owner of 22,500 Preferred Securities, or such other number of
Preferred Securities represented hereby as may be set forth in the records
of
the Securities Registrar hereinafter referred to in accordance with the Trust
Agreement (as defined below), of the Trust representing an undivided preferred
beneficial interest in the assets of the Trust and designated the HNC Statutory
Trust IV Preferred Securities (liquidation amount $1,000 per Preferred Security)
(the “Preferred Securities”). The Preferred Securities are transferable on the
books and records of the Trust, in person or by a duly authorized attorney,
upon
surrender of this certificate duly endorsed and in proper form for transfer
as
provided in Section 5.7 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms
and
provisions of the Preferred Securities are set forth in, and this certificate
and the Preferred Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust, dated as of August 22, 2007, as the same may
be
amended from time to time (the “Trust Agreement”), among Harleysville National
Corporation, a Pennsylvania corporation, as Depositor, Wilmington Trust Company,
as Property Trustee, Wilmington Trust Company, as Delaware Trustee, the
Administrative Trustees named therein and the Holders, from time to time, of
Trust Securities. The Holder is entitled to the benefits of the Guarantee
Agreement entered into by Harleysville National Corporation and Wilmington
Trust
Company, as Guarantee Trustee, dated as of August 22, 2007, as the same may
be
amended from time to time (the “Guarantee Agreement”), to the extent provided
therein. The Trust will furnish a copy of each of the Trust Agreement and the
Guarantee Agreement to the Holder without charge upon written request to the
Property Trustee at its principal place of business or registered
office.
Upon
receipt of this certificate, the Holder is bound by the Trust Agreement and
is
entitled to the benefits thereunder.
C-4
This
Preferred Securities Certificate shall be governed by and construed in
accordance with the laws of the State of Delaware.
All
capitalized terms used but not defined in this Preferred Securities Certificate
are used with the meanings specified in the Trust Agreement, including the
Schedules and Exhibits thereto.
In
Witness Whereof, one of the Administrative Trustees of the Trust has executed
on
behalf of the Trust this certificate this 22nd day of
August,
2007.
HNC
Statutory Trust
IV
By:
Name: Xxxx
X. Xxxxxxxx
Administrative
Trustee
This
represents Preferred Securities referred to in the within-mentioned Trust
Agreement.
|
Dated: August
22, 2007
|
Wilmington
Trust Company, not in its individual capacity, but solely as Property
Trustee
By: ____________________________
Authorized
officer
|
C-5
[FORM
OF
REVERSE OF SECURITY]
The
Trust
promises to pay Distributions from August 22, 2007, or from the most recent
Distribution Date to which Distributions have been paid or duly provided for,
quarterly (subject to deferral as set forth herein) in arrears on January 30,
April 30, July 30 and October 30 of each year, commencing on October 30, 2007,
at a fixed rate per annum equal to 6.35% of the Liquidation Amount of the
Preferred Securities represented by this Preferred Securities Certificate
through the Distribution Date in October 2012 and a variable rate per annum,
reset quarterly, equal to LIBOR plus 1.28% of the Liquidation Amount of the
Preferred Securities represented by this Preferred Securities Certificate,
thereafter, together with any Additional Interest Amounts, in respect to such
period.
Distributions
on the Trust Securities shall be made by the Paying Agent from the Payment
Account and shall be payable on each Distribution Date only to the extent that
the Trust has funds then on hand and available in the Payment Account for the
payment of such Distributions.
In
the
event (and to the extent) that the Depositor exercises its right under the
Indenture to defer the payment of interest on the Notes, Distributions on the
Preferred Securities shall be deferred.
Under
the
Indenture, so long as no Note Event of Default pursuant to paragraphs
(c), (e), (f), (g) or (h) of Section
5.1 of the Indenture has occurred and is continuing, the Depositor shall
have the right, at any time and from time to time during the term of the Notes,
to defer the payment of interest on the Notes for a period of up to twenty
(20)
consecutive quarterly interest payment periods (each such extended interest
payment period, an “Extension Period”), during which Extension Period no
interest shall be due and payable (except any Additional Tax Sums that may
be
due and payable). No interest on the Notes shall be due and payable
during an Extension Period, except at the end thereof, but each installment
of
interest that would otherwise have been due and payable during such Extension
Period shall bear Additional Interest (to the extent payment of such interest
would be legally enforceable) at a fixed rate per annum equal to 6.35% through
the Interest Payment Date in October 2012, and a variable rate per annum, reset
quarterly, equal to LIBOR plus 1.28% thereafter, compounded quarterly, from
the
dates on which amounts would have otherwise been due and payable until paid
or
until funds for the payment thereof have been made available for
payment. If Distributions are deferred, the deferred Distributions
(including Additional Interest Amounts) shall be paid on the date that the
related Extension Period terminates to Holders (as defined in the Trust
Agreement) of the Trust Securities as they appear on the books and records
of
the Trust on the record date immediately preceding such termination
date.
Distributions
on the Securities must be paid on the dates payable (after giving effect to
any
Extension Period) to the extent that the Trust has funds available for the
payment of such Distributions in the Payment Account of the
Trust. The Trust’s funds available for Distribution to the Holders of
the Preferred Securities will be limited to payments received from the
Depositor. The payment of Distributions out of moneys held by the
Trust is guaranteed by the Depositor pursuant to the Guarantee
Agreement.
C-6
During
any such Extension Period, the Depositor shall not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Depositor’s Equity Interests,
(ii) vote in favor of or permit or otherwise allow any of its Subsidiaries
(as
defined in the Indenture) to declare or pay any dividends or distributions
on,
or redeem, purchase, acquire or make a liquidation payment with respect to
or
otherwise retire, any of such Subsidiary’s Equity Interests entitling the
holders thereof to a stated rate of return other than dividends or distributions
on Equity Interests issued by any Subsidiary solely payable to the Depositor
or
any Subsidiary thereof (for the avoidance of doubt, whether such Equity
Interests are perpetual or otherwise), or (iii) make any payment of principal
of
or any interest or premium on or repay, repurchase or redeem any debt securities
of the Depositor that rank pari passu in all respects with or junior in interest
to the Notes (other than (a) repurchases, redemptions or other acquisitions
of
Equity Interests of the Depositor in connection with (1) any employment
contract, benefit plan or other similar arrangement with or for the benefit
of
any one or more employees, officers, directors or consultants, (2) a dividend
reinvestment or stockholder stock purchase or similar plan with respect to
any
Equity Interests or (3) the issuance of Equity Interests of the Depositor (or
securities convertible into or exercisable for such Equity Interests) as
consideration in an acquisition transaction entered into prior to the applicable
Extension Period, (b) as a result of an exchange or conversion of any class
or
series of the Depositor’s Equity Interests (or any Equity Interests of a
Subsidiary of the Depositor) for any class or series of the Depositor’s Equity
Interests or of any class or series of the Depositor’s indebtedness for any
class or series of the Depositor’s Equity Interests, (c) the purchase of
fractional interests in Equity Interests of the Depositor pursuant to the
conversion or exchange provisions of such Equity Interests or the security
being
converted or exchanged, (d) any declaration of a dividend in connection with
any
Rights Plan (as defined in the Indenture), the issuance of rights, Equity
Interests or other property under any Rights Plan, or the redemption or
repurchase of rights pursuant thereto or (e) any dividend in the form of Equity
Interests, warrants, options or other rights where the dividend Equity Interests
or the Equity Interests issuable upon exercise of such warrants, options or
other rights are the same Equity Interests as those on which the dividend is
being paid or rank pari passu with or junior to such Equity
Interests).
On
each
Note Redemption Date, on the stated maturity (or any date of principal repayment
upon early maturity) of the Notes and on each other date on (or in respect
of)
which any principal on the Notes is repaid, the Trust will be required to redeem
a Like Amount of Trust Securities at the Redemption Price. Under the
Indenture, the Notes may be redeemed by the Depositor on any Interest Payment
Date, at the Depositor’s option, on or after October 30, 2012, in whole or in
part from time to time at a redemption price equal to one hundred percent (100%)
of the principal amount thereof or the redeemed portion thereof, as applicable,
together, in the case of any such redemption, with accrued interest, including
any Additional Interest, to but excluding the date fixed for redemption;
provided, that the Depositor shall have received the prior approval of the
Federal Reserve if then required. The Notes may also be redeemed by
the Depositor, at its option, at any time, in whole but not in part, upon the
occurrence of a Capital Disqualification Event, an Investment Company Event
or a
Tax Event at the Special Event Redemption Price; provided, that the Depositor
shall have received the prior approval of the Federal Reserve if then
required.
C-7
The
Trust
Securities redeemed on each Redemption Date shall be redeemed at the Redemption
Price with the proceeds from the contemporaneous redemption or payment at
maturity of Notes. Redemptions of the Trust Securities (or portion thereof)
shall be made and the Redemption Price shall be payable on each Redemption
Date
only to the extent that the Trust has funds then on hand and available in the
Payment Account for the payment of such Redemption Price.
Payments
of Distributions (including any Additional Interest Amounts), the Redemption
Price, Liquidation Amount or any other amounts in respect of the Preferred
Securities shall be made by wire transfer at such place and to such account
at a
banking institution in the United States as may be designated in writing at
least ten (10) Business Days prior to the date for payment by the Person
entitled thereto unless proper written transfer instructions have not been
received by the relevant record date, in which case such payments shall be
made
by check mailed to the address of such Person as such address shall appear
in
the Security Register. If any Preferred Securities are held by a
Depositary, such Distributions shall be made to the Depositary in immediately
available funds.
The
indebtedness evidenced by the Notes is, to the extent provided in the Indenture,
subordinate and junior in right of payment to the prior payment in full of
all
Senior Debt (as defined in the Indenture), and this Security is issued subject
to the provisions of the Indenture with respect thereto.
C-8
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned assigns and transfers this Preferred Securities
Certificate to:
(Insert
assignee’s social security or tax identification number)
(Insert
address and zip code of assignee)
and
irrevocably appoints
agent
to
transfer this Preferred Securities Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date:
Signature:
(Sign
exactly as your name appears on
the other side of this Preferred Securities Certificate)
The
signature(s) should be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership
in
an approved signature guarantee medallion program), pursuant to S.E.C. Rule
17Ad-15.
C-9
Exhibit
D
Junior
Subordinated Indenture
D-1
Exhibit
E
FORM
OF
TRANSFEREE CERTIFICATE
TO
BE
EXECUTED BY TRANSFEREES OTHER THAN QIBS
__________,
[ ]
Harleysville
National Corporation
HNC
Statutory Trust IV
000
Xxxx
Xx.
Xxxxxxxxxxxx,
XX 00000
Re: Purchase
of $1,000 stated liquidation amount of PreferredSecurities (the “Preferred
Securities”) of HNC Statutory Trust IV
Ladies
and Gentlemen:
In
connection with our purchase of the Preferred Securities we confirm
that:
1. We
understand that the Preferred Securities (the “Preferred Securities”) of HNC
Statutory Trust IV (the “Trust”) (including the guarantee (the “Guarantee”) of
Harleysville National Corporation (the “Company”) executed in connection
therewith) and the Junior Subordinated Notes due 2037 of the Company (the
“Subordinated Notes”) (the Preferred Securities, the Guarantee and the
Subordinated Notes together being referred to herein as the “Offered
Securities”), have not been registered under the Securities Act of 1933, as
amended (the “Securities Act”), and may not be offered or sold except as
permitted in the following sentence. We agree on our own behalf and on behalf
of
any investor account for which we are purchasing the Offered Securities that,
if
we decide to offer, sell or otherwise transfer any such Offered Securities,
(i)
such offer, sale or transfer will be made only (a) to the Trust, (b) to a person
we reasonably believe is a “qualified institutional buyer” (a “QIB”) (as defined
in Rule 144A under the Securities Act) in a transaction meeting the requirements
of Rule 144A, or (c) to an institutional “accredited investor” within the
meaning of subparagraph (a) (1), (2), (3) or (7) of Rule 501 under the
Securities Act that is acquiring Offered Securities for its own account, or
for
the account of such an “accredited investor,” for investment purposes and not
with a view to, or for offer or sale in connection with, any distribution
thereof in violation of the Securities Act, in each case in accordance with
any
applicable securities laws of any state of the United States or any other
applicable jurisdiction and, in the case of (c), subject to the right of the
Trust and the depositor to require an opinion of counsel and other information
satisfactory to each of them. If any resale or other transfer of the
Offered Securities is proposed to be made pursuant to clause (c) above, the
transferor shall deliver a letter from the transferee substantially in the
form
of this letter to the Property Trustee as Transfer Agent, which shall provide
as
applicable, among other things, that the transferee is an “accredited investor”
within the meaning of subparagraph (a) (1), (2), (3) or (7) of Rule 501 under
the Securities Act that is acquiring such Securities for investment purposes
and
not for distribution in violation of the Securities Act. We acknowledge on
our
behalf and on behalf of any investor account for which we are purchasing
Securities that the Trust and the Company reserve the right prior to any offer,
sale or other transfer pursuant to clause (c) to require the delivery of any
opinion of counsel, certifications and/or other information satisfactory to
the
Trust and the Company. We understand that the certificates for
E-1
any
Offered Security that we receive will bear a legend substantially to the effect
of the foregoing.
2. We
are an “accredited investor” within the meaning of subparagraph (a) (1), (2),
(3) or (7) of Rule 501 under the Securities Act purchasing for our own account
or for the account of such an “accredited investor,” and we are acquiring the
Offered Securities for investment purposes and not with view to, or for offer
or
sale in connection with, any distribution in violation of the Securities Act,
and we have such knowledge and experience in financial and business matters
as
to be capable of evaluating the merits and risks of our investment in the
Offered Securities, and we and any account for which we are acting are each
able
to bear the economic risks of our or its investment.
3. We
are acquiring the Offered Securities purchased by us for our own account (or
for
one or more accounts as to each of which we exercise sole investment discretion
and have authority to make, and do make, the statements contained in this
letter) and not with a view to any distribution of the Offered Securities,
subject, nevertheless, to the understanding that the disposition of our property
will at all times be and remain within our control.
4. In
the event that we purchase any Preferred Securities or any Subordinated Notes,
we will acquire such Preferred Securities having an aggregate stated liquidation
amount of not less than $100,000 or such Subordinated Notes having an aggregate
principal amount not less than $100,000, for our own account and for each
separate account for which we are acting.
5. We
acknowledge that either (A) we are not and are not acting as a fiduciary of
or
on behalf of an employee benefit, individual retirement account or other plan
or
arrangement subject to Title I of the Employee Retirement Income Security Act
of
1974, as amended (“ERISA”), or Section 4975 of the Internal Revenue Code of
1986, as amended (the “Code”) (each a “Plan”), or an entity whose underlying
assets include “plan assets” by reason of any Plan’s investment in the entity,
and are not purchasing the Offered Securities on behalf of or with “plan assets”
by reason of any Plan’s investment in the entity; (B) we are eligible for the
exemptive relief available under Section 408(b)(17) of ERISA, one or more of
the
following prohibited transaction class exemptions (“PTCEs”) issued by the U.S.
Department of Labor: PTCE 96-23, 95-60, 91-38, 90-1 or 84-14 or
another applicable exemption; or (C) our purchase and holding of this security,
or any interest therein, is not prohibited by Section 406 of ERISA or Section
4975 of the Code with respect to such purchase or holding.
6. We
acknowledge that the Trust and the Company and others will rely upon the truth
and accuracy of the foregoing acknowledgments, representations, warranties
and
agreements and agree that if any of the acknowledgments, representations,
warranties and agreements deemed to have been made by our purchase of the
Offered Securities are no longer accurate, we shall promptly notify the
Company. If we are acquiring any Offered Securities as a fiduciary or
agent for one or more investor accounts, we represent that we have sole
discretion with respect to each such investor account and that we have full
power to make the foregoing acknowledgments, representations and agreement
on
behalf of each such investor account.
E-2
(Name
of
Purchaser)
By:
Date:
Upon
transfer, the Offered Securities would be registered in the name of the new
beneficial owner as follows.
Name:
Address:
Taxpayer
ID
Number:
E-3
Exhibit
F
FORM
OF
TRANSFEROR CERTIFICATE
TO
BE
EXECUTED FOR QIBs
__________,
[ ]
Harleysville
National Corporation
HNC
Statutory Trust IV
000
Xxxx
Xx.
Xxxxxxxxxxxx,
XX 00000
Re: Purchase
of $1,000 stated liquidation amount of
Preferred
Securities (the “Preferred
Securities”)
of
HNC Statutory Trust
IV
Reference
is hereby made to the Amended and Restated Trust Agreement of HNC Statutory
Trust IV, dated as of August 22, 2007 (the “Trust Agreement”), among Xxxx X.
Xxxxxxxx, Xxxxxxx X. High and Xxxxxx X. Xxxx, as Administrative Trustees,
Wilmington Trust Company, as Delaware Trustee, Wilmington Trust Company, as
Property Trustee, Harleysville National Corporation, as Depositor, and the
holders from time to time of undivided beneficial interests in the assets of
HNC
Statutory Trust IV. Capitalized terms used but not defined herein
shall have the meanings given them in the Trust Agreement.
This
letter relates to $________________________ aggregate liquidation amount of
Preferred Securities which are held in the name of _____________ (the
“Transferor”).
In
accordance with Article V of the Trust Agreement, the Transferor hereby
certifies that such Preferred Securities are being transferred in accordance
with (i) the transfer restrictions set forth in the Preferred Securities and
(ii) Rule 144A under the Securities Act (“Rule 144A”), to a transferee that the
Transferor reasonably believes is purchasing the Preferred Securities for its
own account or an account with respect to which the transferee exercises sole
investment discretion and the transferee and any such account is a “qualified
institutional buyer” within the meaning of Rule 144A, in a transaction meeting
the requirements of Rule 144A and in accordance with applicable securities
laws
of any state of the United States or any other jurisdiction.
You
are
entitled to rely upon this letter and are irrevocably authorized to produce
this
letter or a copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered
hereby.
(Name
of
Transferor)
By:
Name:
Title:
Date:
F-1
Exhibit
G
FORM
OF
FINANCIAL OFFICER’S CERTIFICATE
The
undersigned, the [Chief Financial Officer] [Treasurer] [Assistant Treasurer]
of
Harleysville National Corporation (the “Company”), hereby certifies, pursuant to
Section 8.16(b) of the Amended and Restated Trust Agreement, dated as of August
22, 2007, among the Company, Wilmington Trust Company, as property trustee,
Wilmington Trust Company, as Delaware trustee, and the administrative trustees
named therein, that, as of _______, 20__, the Company had the following ratios
and balances:
BANK
HOLDING COMPANY
As
of
[Quarterly Financial Dates]
|
Tier
1 Risk Weighted Assets
|
%
|
|
Ratio
of Double Leverage
|
%
|
|
Non-Performing
Assets to Loans and OREO
|
%
|
|
Tangible
Common Equity as a Percentage of Tangible Assets
|
%
|
|
Ratio
of Reserves to Non-Performing Loans
|
%
|
|
Ratio
of Net Charge-Offs to Loans
|
%
|
|
Return
on Average Assets (annualized)
|
%
|
|
Net
Interest Margin (annualized)
|
%
|
|
Efficiency
Ratio
|
%
|
|
Ratio
of Loans to Assets
|
%
|
|
Ratio
of Loans to Deposits
|
%
|
|
Double
Leverage (exclude trust preferred as equity)
|
%
|
|
Total
Assets
|
$
|
|
Year
to Date Income
|
$
|
*
A table
describing the quarterly report calculation procedures is attached.
[FOR
FISCAL YEAR END: Attached hereto are the audited consolidated financial
statements (including the balance sheet, income statement and statement of
cash
flows, and notes thereto, together with the report of the independent
accountants thereon) of the Company and its consolidated subsidiaries for the
three years ended _______, 20___.]
[FOR
FISCAL QUARTER END: Attached hereto are the unaudited consolidated and
consolidating financial statements (including the balance sheet and income
statement) of the Company and its consolidated subsidiaries for the fiscal
quarter and [six/nine] month period ended _______, 20___.]
The
financial statements fairly present in all material respects, in accordance
with
U.S. generally accepted accounting principles (“GAAP”), the financial position
of the Company and its
G-1
consolidated
subsidiaries, and the results of operations and changes in financial condition
as of the date, and for the [___ quarter interim] [annual] period ended _______,
20__, and such financial statements have been prepared in accordance with GAAP
consistently applied throughout the period involved (except as otherwise noted
therein).
IN
WITNESS WHEREOF, the undersigned has executed this Financial Officer’s
Certificate as of this _____ day of _____________, 20__
Name:
Title:
Harleysville
National Corporation
000
Xxxx
Xx.
Xxxxxxxxxxxx,
XX 00000
(000)
000-0000
G-2
Financial
Definitions
Bank
Holding Company
|
Report
Item
|
Corresponding
FRY-9C or LP Line Items with Line Item corresponding
Schedules
|
Description
of Calculation
|
|
Tier
1 Risk
Weighted
Assets
|
BHCK7206
Schedule
HC-R
|
Tier
1 Risk Ratio: Core Capital (Tier 1)/ Risk-Adjusted
Assets
|
|
Ratio
of Double Leverage
|
(BHCP0365)/(BCHCP3210)
Schedule
PC in the LP
|
Total
equity investments in subsidiaries divided by the total equity capital.
This field is calculated at the parent company level. “Subsidiaries”
include bank, bank holding company, and non-bank
subsidiaries.
|
|
Non-Performing
Assets to Loans and OREO
|
(BHCK5525-BHCK3506+BHCK5526-BHCK3507+BHCK2744/(BHCK2122+BHCK2744)
Schedules HC-C, HC-M & HC-N
|
Total
Nonperforming Assets (NPLs+Foreclosed Real Estate+Other Nonaccrual
&
Repossessed Assets)/Total Loans+Foreclosed Real Estate
|
|
Tangible
Common Equity as a Percentage of Tangible Assets
|
(BHDM3210-BHCK3163)/(BHCK2170-BHCK3163)
Schedule
HC
|
(Equity
Capital – Goodwill)/(Total Assets – Goodwill)
|
|
Ratio
of Reserves to Non-Performing Loans
|
(BHCK3123+BHCK3128)/(BHCK5525-BHCK3506+BHCK5526-BHCK3507)
Schedules
HC & HC-N & HC-R
|
Total
Loan Loss and Allocated Transfer Risk Reserves/ Total Nonperforming
Loans
(Nonaccrual
+ Restructured)
|
|
Ratio
of Net Charge-Offs to Loans
|
(BHCK4635-BHCK4605)/(BHCK3516)
Schedules
HI-B & HC-K
|
Net
charge offs for the period as a percentage of average
loans.
|
|
Return
on Average Assets (annualized)
|
(BHCK4340/BHCK3368)
Schedules
HI & HC-K
|
Net
Income as a percentage of Assets.
|
|
Net
Interest Margin (annualized)
|
(BHCK4519/(BHCK3515+BHCK3365+BHCK3516+BHCK3401+BHCKB985)
Schedules
HI Memorandum and HC-K
|
(Net
Interest Income Fully Taxable Equivalent, if available/Average Earning
Assets)
|
|
Efficiency
Ratio
|
(BHCK4093)/(BHCK4519+BHCK4079)
Schedule
HI
|
(Non-interest
Expense)/(Net Interest Income Fully Taxable Equivalent, if available,
plus
Non-interest Income)
|
|
Ratio
of Loans to Assets
|
(BHCKB528+BHCK5369)/(BHCK2170)
Schedule
HC
|
Total
Loans & Leases (Net of Unearned Income & Gross of Reserve)/Total
Assets
|
|
Ratio
of Loans to Deposits
|
(BHCKB528+BHCK5369)/(BHDM6631+BHDM6636+BHFN6631+BHFN6636)
Schedule
HC
|
Total
Loans & Leases (Net of Unearned Income & Gross of Reserve)/Total
Deposits (Includes Domestic and Foreign
Deposits)
|
G-3
|
Total
Assets
|
(BHCK2170)
Schedule
HC
|
The
sum of total assets. Includes cash and balances due from depository
institutions; securities; federal funds sold and securities purchased
under agreements to resell; loans and lease financing receivables;
trading
assets; premises and fixed assets; other real estate owned; investments
in
unconsolidated subsidiaries and associated companies; customer’s liability
on acceptances outstanding; intangible assets; and other
assets.
|
|
Net
Income
|
(BHCK4300)
Schedule
HI
|
The
sum of income (loss)before extraordinary items and other adjustments
and
extraordinary items; and other adjustments, net of income
taxes.
|
G-4
Exhibit
H
FORM
OF
OFFICERS’
CERTIFICATE
UNDER
SECTION
8.16(a)
Pursuant
to Section 8.16(a) of the
Amended and Restated Trust Agreement, dated as of August 22, 2007 (as modified,
supplemented or amended from time to time, the “Trust Agreement”) of HNC
Statutory Trust IV, a Delaware statutory trust (the “Trust”), each of the
undersigned hereby certifies that, to the knowledge of the undersigned, none
of
the Depositor, the Administrative Trustees and the Trust are in default in
the
performance or observance of any of the terms, provisions and conditions of
the
Trust Agreement (without regard to any period of grace or requirement of notice
provided under the Trust Agreement) for the fiscal period ending on _________,
20__ [, except as follows: specify each such default and the nature and
status thereof].
Capitalized
terms used herein, and not
otherwise defined herein, have the respective meanings assigned thereto in
the
Trust Agreement.
[signatures
appear on the next page]
H-1
IN
WITNESS WHEREOF, the undersigned have executed this Officers’ Certificate as of
__________, 20__.
Name: Xxxx
X. Xxxxxxxx
Title: [Must
be the Chief Executive Officer, thePresident, or an Executive Vice
President]
of
Harleysville National
Corporation
Name: Xxxxxx
X. Xxxx
Title: [Must
be the Chief Financial Officer, the
Treasurer,
or an Assistant Treasurer]
of
Harleysville National Corporation
____________________________
Administrative
Trustee of HNC Statutory Trust IV
Name:
____________________________
Administrative
Trustee of HNC Statutory Trust IV
Name:
____________________________
Administrative
Trustee of HNC Statutory Trust IV
Name:
H-2
Schedule
A
With
respect to the Trust Securities, the London interbank offered rate (“LIBOR”)
shall be determined by the Calculation Agent in accordance with the following
provisions (in each case rounded to the nearest .000001%):
(1) On
the second LIBOR Business Day (as defined below) prior to a Distribution Date
(each such day, a “LIBOR Determination Date”), LIBOR for any given
security shall, for the following distribution period, equal the rate, as
obtained by the Calculation Agent from Bloomberg Financial Markets Commodities
News, for three-month U.S. Dollar deposits in Europe, which appears on page
“LIBOR 01” of the Reuters Monitor Money Rates Service, or such other page as may
replace such “LIBOR 01” page from time to time, as of 11:00 a.m. (London time)
on such LIBOR Determination Date.
(2) If,
on any LIBOR Determination Date, such rate does not appear on page “LIBOR 01” of
the Reuters Monitor Money Rates Service or such other page as may replace such
“LIBOR 01” page from time to time, the Calculation Agent shall determine the
arithmetic mean of the offered quotations of the Reference Banks (as defined
below) to leading banks in the London interbank market for three-month U.S.
Dollar deposits in Europe in an amount determined by the Calculation Agent
by
reference to requests for quotations as of approximately 11:00 a.m. (London
time) on the LIBOR Determination Date made by the Calculation Agent to the
Reference Banks. If, on any LIBOR Determination Date, at least two of
the Reference Banks provide such quotations, LIBOR shall equal such arithmetic
mean of such quotations. If, on any LIBOR Determination Date, only
one or none of the Reference Banks provide such quotations, LIBOR shall be
deemed to be the arithmetic mean of the offered quotations that leading banks
in
the City of New York selected by the Calculation Agent are quoting on the
relevant LIBOR Determination Date for three-month U.S. Dollar deposits in Europe
in an amount determined by the Calculation Agent by reference to the principal
London offices of leading banks in the London interbank market; provided, that
if the Calculation Agent is required but is unable to determine a rate in
accordance with at least one of the procedures provided above, LIBOR shall
be
LIBOR as determined on the previous LIBOR Determination Date.
(3) As
used herein: “Reference Banks” means four major banks in the London interbank
market selected by the Calculation Agent; and “LIBOR Business Day” means a day
on which commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) in London.
Schedule
A-1
