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AMENDED AND RESTATED
TRUST AGREEMENT
Among
ALLEGIANT BANCORP, INC.
(as Depositor)
BANKERS TRUST COMPANY
(as Property Trustee)
and
BANKERS TRUST (DELAWARE)
as Delaware Trustee
dated as of __________, 1999
ALLEGIANT CAPITAL TRUST I
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ALLEGIANT CAPITAL TRUST I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
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Section 310 (a)(1) 8.7
(a)(2) 8.7
(a)(3) 8.9
(a)(4) 2.7(a)(ii)
(b) 8.8, 10.10(b)
Section 311 (a) 8.13, 10.10(b)
(b) 8.13, 10.10(b)
Section 312 (a) 10.10(b)
(b) 10.10(b), (f)
(c) 5.7
Section 313 (a) 8.15(a)
(a)(4) 10.10(c)
(b) 8.15(c), 10.10(c)
(c) 10.8, 10.10(c)
(d) 10.10(c)
Section 314 (a) 8.16, 10.10(d)
(b) Not Applicable
(c)(1) 8.17, 10.10(d), (e)
(c)(2) 8.17, 10.10(d), (e)
(c)(3) 8.17, 10.10(d), (e)
(e) 8.17, 10.10(e)
Section 315 (a) 8.1(d)
(b) 8.2
(c) 8.1(c)
(d) 8.1(d)
(e) Not Applicable
Section 316 (a) Not Applicable
(a)(1)(A) Not Applicable
(a)(1)(B) Not Applicable
(a)(2) Not Applicable
(b) 5.13
(c) 6.7
Section 317 (a)(1) Not Applicable
(a)(2) 8.14
(b) 5.10
Section 318 (a) 10.10(a)
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS 1
Section 1.1 Definitions 1
ARTICLE II CONTINUATION OF THE ISSUER TRUST 11
Section 2.1 Name 11
Section 2.2. Office of the Delaware Trustee; Principal Place of Business 11
Section 2.3. Initial Contribution of Trust Property; Organizational Expenses 12
Section 2.4. Issuance of the Preferred Securities 12
Section 2.5. Issuance of the Common Securities; Subscription and Purchase of Junior
Subordinated Debentures 12
Section 2.6. Declaration of Trust 13
Section 2.7. Authorization to Enter into Certain Transactions 13
Section 2.8. Assets of Trust 16
Section 2.9. Title to Trust Property 16
ARTICLE III PAYMENT ACCOUNT 16
Section 3.1. Payment Account 16
ARTICLE IV DISTRIBUTIONS, REDEMPTION 17
Section 4.1. Distributions 17
Section 4.2. Redemption 18
Section 4.3. Subordination of Common Securities 20
Section 4.4. Payment Procedures 21
Section 4.5. Tax Returns and Reports 21
Section 4.6. Payment of Taxes, Duties, Etc. of the Issuer Trust 21
Section 4.7. Payments under Indenture or Pursuant to Direct Actions 22
Section 4.8. Liability of the Holder of Common Securities 22
ARTICLE V TRUST SECURITIES CERTIFICATES 22
Section 5.1. Initial Ownership 22
Section 5.2. The Trust Securities Certificates 22
Section 5.3. Execution and Delivery of Trust Securities Certificates 22
Section 5.4. Global Preferred Security 23
Section 5.5. Registration of Transfer and Exchange Generally; Certain Transfers and
Exchanges; Preferred Securities Certificates 24
Section 5.6. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates 25
Section 5.7. Persons Deemed Holders 25
Section 5.8. Access to List of Holders' Names and Addresses 26
Section 5.9. Maintenance of Office or Agency 26
Section 5.10. Appointment of Paying Agent 26
Section 5.11. Ownership of Common Securities by Depositor 26
Section 5.12. Notices to Clearing Agency 27
Section 5.13. Rights of Holders 27
ARTICLE VI ACTS OF HOLDERS; MEETINGS; VOTING 29
Section 6.1. Limitations on Holder's Voting Rights 29
Section 6.2. Notice of Meetings 29
Section 6.3. Meetings of Holders 30
Section 6.4. Voting Rights 30
Section 6.5. Proxies, etc 30
Section 6.6. Holder Action by Written Consent 30
Section 6.7. Record Date for Voting and Other Purposes 30
Section 6.8. Acts of Holders 31
Section 6.9. Inspection of Records 32
ARTICLE VII REPRESENTATIONS AND WARRANTIES 32
Section 7.1. Representations and Warranties of the Property Trustee and the
Delaware Trustee 32
Section 7.2. Representations and Warranties of the Depositor 33
ARTICLE VIII THE ISSUER TRUSTEES; THE ADMINISTRATORS 33
Section 8.1. Certain Duties and Responsibilities 33
Section 8.2. Certain Notices 35
Section 8.3. Certain Rights of Property Trustee 36
Section 8.4. Not Responsible for Recitals or Issuance of Securities 37
Section 8.5. May Hold Securities 37
Section 8.6. Compensation; Indemnity; Fees 37
Section 8.7. Corporate Property Trustee Required; Eligibility of Trustees and
Administrators 38
Section 8.8. Conflicting Interests 39
Section 8.9. Co-Trustees and Separate Trustee 39
Section 8.10. Resignation and Removal; Appointment of Successor 40
Section 8.11. Acceptance of Appointment by Successor 41
Section 8.12. Merger, Conversion, Consolidation or Succession to Business 41
Section 8.13. Preferential Collection of Claims Against Depositor or Issuer Trust 42
Section 8.14. Trustee May File Proofs of Claim 42
Section 8.15. Reports by Property Trustee 42
Section 8.16. Reports to the Property Trustee 43
Section 8.17. Evidence of Compliance with Conditions Precedent 43
Section 8.18. Number of Issuer Trustees 43
Section 8.19. Delegation of Power 43
Section 8.20. Appointment of Administrators 44
ARTICLE IX DISSOLUTION, LIQUIDATION AND MERGER 44
Section 9.1. Dissolution Upon Expiration Date 44
Section 9.2. Early Dissolution 44
Section 9.3. Termination 45
Section 9.4. Liquidation 45
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of the Issuer
Trust 46
ARTICLE X MISCELLANEOUS PROVISIONS 47
Section 10.1. Limitation of Rights of Holders 47
Section 10.2. Amendment 47
Section 10.3. Separability 48
Section 10.4. Governing Law 49
Section 10.5. Payments Due on Non-Business Day 49
Section 10.6. Successors and Assigns 49
Section 10.7. Headings 49
Section 10.8. Reports, Notices and Demands 49
Section 10.9. Agreement Not to Petition 50
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act 50
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee and Indenture 51
Section 10.12. Counterparts 51
EXHIBITS
Exhibit A Certificate of Trust
Exhibit B Form of Certificate Depositary Agreement
Exhibit C Form of Common Securities Certificate
Exhibit D Form of Preferred Securities Certificate
AMENDED AND RESTATED TRUST AGREEMENT
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THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as of ________,
1999 (this "Trust Agreement"), is among (a) ALLEGIANT BANCORP, INC., a
Missouri corporation (including any successors or assigns, the
"Depositor"), (b) BANKERS TRUST COMPANY, a New York banking corporation,
as property trustee (in such capacity, the "Property Trustee" and, in
its separate corporate capacity and not in its capacity as Property
Trustee, the "Bank"), (c) BANKERS TRUST (DELAWARE), a Delaware banking
corporation, as Delaware trustee (the "Delaware Trustee") (the Property
Trustee and the Delaware Trustee are referred to collectively herein as
the "Issuer Trustees"); (d) XXXXX X. XXXXX, an individual, and XXXXXX
XXXXXX, an individual, each of whose address is c/o the Depositor (each
an "Administrator" and, collectively, the "Administrators" and together
with the Issuer Trustees, the "Trustees"); and (e) the several Holders,
as hereinafter defined.
RECITALS
WHEREAS, the Depositor and certain of the Trustees have heretofore
duly declared and established a business trust pursuant to the Delaware
Business Trust Act by the entering into a certain Declaration of Trust,
dated as of ________, 1999 (the "Original Trust Agreement"), and by the
execution and filing by the Delaware Trustee with the Secretary of State
of the State of Delaware of the Certificate of Trust, filed on June
____, 1999 (the "Certificate of Trust"), a copy of which is attached
hereto as Exhibit A; and
WHEREAS, the Depositor and the Delaware Trustee desire to amend
and restate the Original Trust Agreement in its entirety as set forth
herein to provide for, among other things, (a) the issuance of the
Common Securities by the Issuer Trust to the Depositor, (b) the issuance
and sale of the Preferred Securities by the Issuer Trust pursuant to the
Underwriting Agreement, (c) the acquisition by the Issuer Trust from the
Depositor of all of the right, title and interest in the Junior
Subordinated Debentures and (d) the appointment of the Property Trustee
and the Administrators.
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, intending to be legally bound, as follows:
ARTICLE I
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DEFINITIONS
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Section 1.1. Definitions. For all purposes of this Trust
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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 and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) the words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
(d) all accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles as in effect at the time of computation;
(e) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Trust Agreement;
(f) the words "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; and
(g) all references to the date the Preferred Securities were
originally issued shall refer to the date the ____% Preferred Securities
were originally issued.
"25% Capital Limitation" means the limitation imposed by the
Federal Reserve that the proceeds of certain qualifying securities
similar to the Trust Securities will qualify as Tier 1 capital of the
issuer up to an amount not to exceed, when taken together with all
cumulative preferred stock of the Depositor, if any, 25% of the
Depositor's Tier 1 capital, or and subsequent or successor limitation
adopted by the Federal Reserve.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a
given Liquidation Amount and/or for a given period, the amount of
Additional Interest paid by the Depositor on a Like Amount of Junior
Subordinated Debentures for such period.
"Additional Interest" has the meaning specified in Section 1.1 of
the Indenture.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrators" means each Person appointed in accordance with
Section 8.20 solely in such Person's capacity as Administrator of the
Issuer Trust heretofore formed and continued hereunder and not in such
Person's individual capacity, or any successor Administrator appointed
as herein provided; with the initial Administrators being Xxxxx X. Xxxxx
and Xxxxxx X. Xxxxxx.
"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 Procedures" means, with respect to any transfer or
transaction involving a Global Preferred Security or beneficial interest
therein, the rules and procedures of the Depositary for such Preferred
Security, in each case to the extent applicable to such transaction and
as in effect from time to time.
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"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or
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 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 federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing
of any such petition or to the appointment of a 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 the taking of
corporate action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" means the board of directors of the Depositor
or the Executive Committee of the board of directors of the Depositor
(or any other committee of the board of directors of the Depositor
performing similar functions) or, for purposes of this Trust Agreement,
a committee designated by the board of directors of the Depositor (or
any such committee), comprised of two or more members of the board of
directors of the Depositor or officers of the Depositor, or both.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor's Board of Directors, or such committee of the
Board of Directors or officers of the Depositor to which authority to
act on behalf of the Board of Directors has been delegated, and to be in
full force and effect on the date of such certification, and delivered
to the Issuer Trustees.
"Business Day" means a day other than (a) a Saturday or Sunday,
(b) a day on which banking institutions in the State of Missouri or 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 Property Trustee's
Corporate Trust Office or the Delaware Trustee's Corporate Trust Office
or the Corporate Trust Office of the Debenture Trustee is closed for
business.
"Capital Treatment Event" means the receipt by the Depositor and
the Issuer Trust of the Opinion of Counsel, rendered by counsel
experienced in such matters, that, as a result of the occurrence of any
amendment to, or change (including any announced prospective change) in,
the laws (or any rules or regulations thereunder) of the United States
or any political subdivision thereof or therein, or as a result of any
official or administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which amendment or
change is effective or such pronouncement, action or decision is
announced on or after the date of the issuance of the Preferred
Securities of the
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Issuer Trust, there is more than an insubstantial risk that the
Depositor will not be entitled to treat an amount equal to the
Liquidation Amount of such Preferred Securities as "Tier 1 Capital" (or
the then equivalent thereof), except as otherwise restricted under the
25% Capital Limitation, for purposes of the risk-based capital adequacy
guidelines of the Federal Reserve, as then in effect and applicable to
the Depositor; provided, that the Depositor or the Trust shall have
requested and received such an Opinion of Counsel with regard to such
matters within a reasonable period of time after the Depositor or the
Trust shall have become aware of the possible occurrence of any such
event.
"Cede" means Cede & Co.
"Certificate Depositary Agreement" means the agreement among the
Issuer Trust, the Depositor and the Depositary, as the initial Clearing
Agency, dated as of the Closing Date, substantially in the form attached
hereto as Exhibit B, as the same may be amended and supplemented from
time to time.
"Certificate of Trust" has the meaning specified in the preamble
to this Trust Agreement.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. The Depositary
shall be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Date" means the Time of Delivery for the Firm Securities,
which date is also the date of execution and delivery of this Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended or any
successor statute, in each case as amended from time to time.
"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 instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, 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
hereto as Exhibit C.
"Common Security" means an undivided beneficial interest in the
assets of the Issuer Trust, having a Liquidation Amount of $10 and
having the rights provided therefor in this Trust Agreement, including
the right to receive Distributions and a Liquidation Distribution as
provided herein.
"Corporate Trust Office" means (a) with respect to the Property
Trustee or the Debenture Trustee, the principal office of the Property
Trustee located in the City of New York, New York, which at the time of
the execution of this Trust Agreement is located at Xxxx Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000; Attention: Corporate Trust and Agency Group -
Corporate Market Services, and (b) with respect to the Delaware Trustee,
the principal office of the Delaware Trustee located at E.A. Delle Donne
Corporate Center, Xxxxxxxxxx Building, 0000 Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx, 00000-0000.
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"Debenture Event of Default" means an "Event of Default" as
defined in the Indenture.
"Debenture Redemption Date" means, with respect to any Junior
Subordinated Debentures to be redeemed under the Indenture, the date
fixed for redemption of such Junior Subordinated Debentures under the
Indenture.
"Debenture Trustee" means Bankers Trust Company, a New York
banking corporation and any successor, as trustee under the Indenture.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. 3801, et seq., as it may be amended from
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time to time.
"Delaware Trustee" means the corporation identified as the
"Delaware Trustee" in the preamble to this Trust Agreement solely in its
capacity as Delaware Trustee of the Issuer Trust continued hereunder and
not in its individual capacity, or its successor in interest in such
capacity, or any successor trustee appointed as herein provided.
"Depositary" means The Depository Trust Company or any successor
thereto.
"Depositor" has the meaning specified in the preamble to this
Trust Agreement.
"Direct Action" has the meaning specified in Section 5.13(c).
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"Early Termination Event" has the meaning specified in
Section 9.2.
"Event of Default" means any one of the following events (whatever
the reason for such Event of Default 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 Debenture Event of Default;
(b) default by the Issuer Trust in the payment of any
Distribution when it becomes due and payable, and continuation of such
default for a period of 30 days;
(c) default by the Issuer Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable;
(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 a covenant or warranty a default in the
performance of which or the breach of which is dealt with in clause (b)
or (c) above) and continuation of such default or breach for a period of
60 days after there has been given, by registered or certified mail, to
the Issuer Trustees and the Depositor by the Holders of at least 25% in
aggregate Liquidation Amount
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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 any Bankruptcy Event with respect to the
Property Trustee or all or substantially all of its property if a
successor Property Trustee has not been appointed within a period of 60
days thereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, 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.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
"Firm Securities" means an aggregate Liquidation Amount of
$__________ of the Issuer Trust's ____% preferred securities.
"Global Preferred Securities Certificate" means a Preferred
Securities Certificate evidencing ownership of Global Preferred
Securities.
"Global Preferred Security" means a Preferred Security, the
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 5.4.
"Guarantee Agreement" means the Guarantee Agreement executed and
delivered by the Depositor and Bankers 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.
"Holder" means a Person in whose name a Trust Security or Trust
Securities is registered in the Securities Register; any such Person
shall be a beneficial owner within the meaning of the Delaware Business
Trust Act.
"Indemnified Person" has the meaning specified in Section 8.6(c).
"Indenture" means the Junior Subordinated Indenture, dated as of
__________, 1999, between the Depositor and the Debenture Trustee (as
amended or supplemented from time to time) relating to the issuance of
the Junior Subordinated Debentures.
"Investment Company Act" means the Investment Company Act of 1940,
as amended or any successor statute, in each case as amended from time
to time.
"Investment Company Event" means the receipt by the Depositor and
the Issuer Trust of an Opinion of Counsel, rendered by counsel
experienced in such matters, to the effect that, as a result of the
occurrence of a change in law or regulation or a written change in
interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority, the Issuer
Trust is considered an "investment company" that is required to be
registered under the Investment Company Act, which change becomes
effective on or after the date of the issuance of the Preferred
Securities;
6
provided, however, that the Depositor or the Trust shall have requested
and received an Opinion of Counsel with regard to such matters within a
reasonable period of time after the Depositor or the Trust shall have
become aware of the possible occurrence of any such event.
"Issuer Trust" means Allegiant Capital Trust I.
"Issuer Trustees" means, collectively, the Property Trustee and
the Delaware Trustee.
"Junior Subordinated Debentures" means the aggregate principal
amount of the Depositor's ____% junior subordinated deferrable interest
debentures, due ___________, 2029 which date may be shortened once at
any time by the Depositor to any date not earlier than __________, 2004
issued pursuant to the Indenture.
"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 Trust
Securities, Trust Securities having a Liquidation Amount equal to that
portion of the principal amount of Junior Subordinated Debentures to be
contemporaneously redeemed in accordance with the Indenture, allocated
to the Common Securities and to the Preferred Securities based upon the
relative Liquidation Amounts of such classes and (b) with respect to a
distribution of Junior Subordinated Debentures to Holders of Trust
Securities in connection with a dissolution or liquidation of the Issuer
Trust, Junior Subordinated Debentures having a principal amount equal to
the Liquidation Amount of the Trust Securities of the Holder to whom
such Junior Subordinated Debentures are distributed; provided, in the
case of clause (b) that each Junior Subordinated Debenture so
distributed shall earn accrued and unpaid interest in an amount equal to
the amount of accrued and unpaid interest then due on such Junior
Subordinated Debentures.
"Liquidation Amount" means the stated amount of $10 per Trust
Security.
"Liquidation Date" means the date on which Junior Subordinated
Debentures or the Liquidation Distributions are to be distributed to
Holders of Trust Securities in connection with a dissolution and
liquidation of the Issuer Trust pursuant to Section 9.4.
"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"Majority in Liquidation Amount of the Preferred Securities" or
"Majority in Liquidation Amount of the Common Securities" means, except
as provided by the Trust Indenture Act, Preferred Securities or Common
Securities, as the case may be, representing more than 50% of the
aggregate Liquidation Amount of all then Outstanding Preferred
Securities or Common Securities, as the case may be.
"Officers' Certificate" means, a certificate signed by the
Chairman of the Board, Chief Executive Officer, President or a Vice
President and by the Chief Financial Officer, the Treasurer, an
Associate Treasurer, an Assistant Treasurer, the Secretary, or an
Assistant Secretary, of the Depositor, and delivered to the appropriate
Issuer Trustee. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Trust
Agreement shall include:
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(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 each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of independent
outside counsel to the Depositor.
"Option Closing Date" shall have the meaning provided in the
Underwriting Agreement.
"Option Securities" means an aggregate Liquidation Amount of
$2,250,000 of the Issuer Trust's ____% Preferred Securities, issuable at
any time and from time to time to the Underwriter, at its option,
exercisable within 30 days after the date of the Prospectus, solely to
cover over-allotments, if any.
"Option Preferred Securities Certificate" means the certificate
evidencing ownership of Preferred Securities issued if the Underwriter
exercises its option described in Section 2.4, which certificate shall
be substantially in the form attached hereto as Exhibit D.
"Original Trust Agreement" has the meaning specified in the
preamble to this Trust Agreement.
"Outstanding," with respect to 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 whose payment or redemption money in
the necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for the Holders of such Preferred
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 which have been paid or in exchange for or
in lieu of which other Trust Securities have been executed and delivered
pursuant to Sections 5.4, 5.5, and 5.6;
provided, however, 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 Issuer Trustee, any Administrator, or any Affiliate
of the Depositor or any Issuer Trustee shall be disregarded and deemed
not to be Outstanding, except that (i) in determining whether any Issuer
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Preferred
Securities that such Issuer Trustee or such Administrator, as the case
may be, 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
8
owned by the Depositor, one or more of the Issuer Trustees, one or more
of the Administrators and/or any such Affiliate. Preferred Securities
so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Administrators the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor or any
Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of Global
Preferred Securities as reflected in the records of the Clearing Agency
or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing
Agency, directly or indirectly, in accordance with the rules of such
Clearing Agency.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be the Property Trustee.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee in its trust
department for the benefit of the Holders in which all amounts paid in
respect of the Junior Subordinated Debentures will be held and from
which the Property Trustee, through the Paying Agent, shall make
payments to the Holders in accordance with Sections 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, unincorporated
organization or government or any agency or political subdivision
thereof, or any other entity of whatever nature.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached
hereto as Exhibit D.
"Preferred Security" means a Firm Security or an Option Security,
each constituting a preferred undivided beneficial interest in the
assets of the Issuer Trust, having a Liquidation Amount of $10 and
having the rights provided therefor in this Trust Agreement, including
the right to receive Distributions and a Liquidation Distribution as
provided herein.
"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 Issuer Trust continued hereunder and not in
its individual capacity, or its successor in interest in such capacity,
or any successor property trustee appointed as herein provided.
"Prospectus" means the final prospectus covering the Preferred
Securities, Junior Subordinated Debentures and the Guarantee Agreement.
"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 Junior Subordinated Debenture
Redemption Date and the stated maturity of the Junior Subordinated
Debentures shall be a Redemption Date for a Like Amount of Trust
Securities, including but not limited to any date of redemption pursuant
to the occurrence of any Special Event.
"Redemption Price" means with respect to a redemption of any Trust
Security, the Liquidation Amount of such Trust Security, together with
accumulated but unpaid Distributions to but excluding the
9
date fixed for redemption, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like
Amount of Junior Subordinated Debentures.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer" when used with respect to the Property
Trustee means any officer assigned to the Corporate Trust Office,
including any managing director, principal, vice president, assistant
vice president, assistant treasurer, assistant secretary or any other
officer of the Property Trustee customarily performing functions similar
to those performed by any of the above designated officers and having
direct responsibility for the administration of the Indenture, and also,
with respect to a particular matter, any other officer to whom such
matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended, and
any successor statute thereto, in each case as amended from time to
time.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.5.
"Special Event" means any Tax Event, Capital Treatment Event, or
Investment Company Event.
"Successor Securities Certificate" of any particular Preferred
Securities Certificate means every Preferred Securities Certificate
issued after, and evidencing all or a portion of the same beneficial
interest in the Issuer Trust as that evidenced by, such particular
Preferred Securities Certificate; and, for the purposes of this
definition, any Preferred Securities Certificate executed and delivered
under Section 5.6 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Preferred Securities Certificate shall be deemed to
evidence the same beneficial interest in the Issuer Trust as the
mutilated, destroyed, lost or stolen Preferred Securities Certificate.
"Successor Security" has the meaning specified in Section 9.5.
"Tax Event" means the receipt by the Depositor and the Issuer
Trust of an Opinion of Counsel experienced in such matters to the effect
that, as a result of any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official or
administrative pronouncement or action or judicial decision interpreting
or applying such laws or regulations, which amendment or change is
effective or which pronouncement, action or decision is announced on or
after the date of issuance of the Preferred Securities, there is more
than an insubstantial risk that (a) the Issuer Trust is, or will be
within 90 days of the delivery of such Opinion of Counsel, subject to
United States federal income tax with respect to income received or
accrued on the Junior Subordinated Debentures, (b) interest payable by
the Depositor on the Junior Subordinated Debentures is not, or within 90
days of the delivery of such Opinion of Counsel will not be, deductible
by the Depositor, in whole or in part, for United States federal income
tax purposes, or (c) the Issuer Trust is, or will be within 90 days of
the delivery of such Opinion of Counsel, subject to more than a de
minims; amount of other taxes, duties or other governmental charges;
provided, however, that the Depositor or the Trust shall have received
an Opinion of Counsel with regard to such matters within a reasonable
period of time after the Depositor or the Trust shall have become aware
of the possible occurrence of any such event.
10
"Time of Delivery" means 9:00 a.m. Eastern Time, either (a) with
respect to the Firm Securities or the Common Securities, on the third
Business Day (unless postponed in accordance with the provisions of
[Section __] of the Underwriting Agreement) following the date of
execution of the Underwriting Agreement, or such other time not later
than ten Business Days after such date as shall be agreed upon by the
Underwriters, the Issuer Trust and the Depositor, or (b) with respect to
the Option Securities, the applicable Option Closing Date.
"Trust Agreement" means this Amended and Restated Trust Agreement,
as the same may be modified, amended or supplemented in accordance with
the applicable provisions hereof, including (a) all Exhibits hereto, and
(b) for all purposes of this Amended and Restated Trust Agreement and
any such modification, amendment or supplement, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this
Amended and Restated Trust Agreement and any modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, or any successor
statute, in each case as amended from time to time.
"Trust Property" means (a) the Junior Subordinated Debentures,
(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 Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Underwriters" has the meaning specified in the Underwriting
Agreement.
"Underwriting Agreement" means the Underwriting Agreement, dated
________, 1999, among the Issuer Trust, the Depositor and the
Underwriters, as the same may be amended from time to time.
ARTICLE II
----------
CONTINUATION OF THE ISSUER TRUST
Section 2.1. Name. The Issuer Trust continued hereby shall be
----
known as "Allegiant Capital Trust I," as such name may be modified from
time to time by the Administrators following written notice to the
Holders of Trust Securities and the other Issuer Trustees, in which name
the Administrators and the Issuer Trustees may engage in the
transactions contemplated hereby, make and execute contracts and other
instruments on behalf of the Issuer 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 Bankers Trust (Delaware), E.A. Delle Donne Corporate Center,
Xxxxxxxxxx Building, 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx,
00000-0000, Attention: Xxxx Xxxxxxx, or such other address in the State
of Delaware as the Delaware Trustee may designate by written notice to
the Holders and the Depositor. The principal executive office of the
Issuer Trust is in care of Allegiant Bancorp, Inc., 0000 Xxxxxx Xxxx,
Xx. Xxxxx, Xxxxxxxx 00000, Attention: Corporate Secretary.
11
Section 2.3. Initial Contribution of Trust Property;
----------------------------------------
Organizational Expenses. The Issuer Trustees acknowledge receipt in
-----------------------
trust from the Depositor in connection with this Trust Agreement of the
sum of $10, which constitutes the initial Trust Property. The Depositor
shall pay all organizational expenses of the Issuer Trust as they arise
or shall, upon request of any Issuer Trustee, promptly reimburse such
Issuer Trustee for any such reasonable expenses paid by such Issuer
Trustee. The Depositor shall make no claim upon the Trust Property for
the payment of such expenses.
Section 2.4. Issuance of the Preferred Securities. On
------------------------------------
___________, 1999, the Depositor, both on its own behalf and on behalf
of the Issuer Trust pursuant to the Original Trust Agreement, executed
and delivered the Underwriting Agreement. Contemporaneously with the
execution and delivery of this Trust Agreement, an Administrator, on
behalf of the Issuer Trust, shall manually execute in accordance with
Section 5.3 and the Property Trustee shall authenticate in accordance
with Section 5.3 and deliver to the Underwriters, Firm Securities
Certificates, registered in the names requested by the Underwriters, in
an aggregate amount of 1,500,000 Firm Securities having an aggregate
Liquidation Amount of $15,000,000, against receipt of the aggregate
purchase price of such Preferred Securities of $15,000,000, by the
Property Trustee.
At the option of the Underwriters, at any time and from time to
time within 30 days of the date of the Prospectus, and solely for the
purpose of covering an over-allotment, if any, an Administrator, on
behalf of the Issuer Trust, shall manually execute in accordance with
Section 5.3 and the Property Trustee shall authenticate in accordance
with Section 5.3 and deliver to the Underwriters, Option Preferred
Securities Certificates, registered in the names requested by the
Underwriters, representing up to 225,000 Option Securities in the
aggregate having an aggregate Liquidation Amount of up to $2,250,000
against receipt of the aggregate purchase price of such Option
Securities of up to $2,250,000 by the Property Trustee.
Section 2.5. Issuance of the Common Securities; Subscription
------------------------------------------------
and Purchase of Junior Subordinated Debentures. Contemporaneously with
----------------------------------------------
the execution and delivery of this Trust Agreement, an Administrator, on
behalf of the Issuer Trust, shall execute in accordance with Section 5.3
and the Property Trustee shall authenticate in accordance with
Section 5.3 and deliver to the Depositor, Common Securities
Certificates, registered in the name of the Depositor, in an aggregate
amount of 56,250 Common Securities having an aggregate Liquidation
Amount of $562,500 against receipt by the Property Trustee of the
aggregate purchase price of such Common Securities of $562,500 by the
Property Trustee. In the event of any exercise from time to time of an
over-allotment option requiring issuance of additional Option Preferred
Securities Certificates, as described in Section 2.4 above, a proportionate
number of additional Common Securities Certificates, with corresponding
aggregate Liquidation Amount, shall be delivered to the Depositor
against receipt by the Property Trustee of the aggregate purchase price
therefor. Contemporaneously with the executions, and deliveries of
Common Securities Certificates and any Preferred Securities
Certificates, an Administrator, on behalf of the Issuer Trust, shall
subscribe for and purchase from the Depositor, corresponding amounts of
Junior Subordinated Debentures, registered in the name of the Issuer
Trust and having an aggregate principal amount equal to $15,000,000,
plus, in the event of any exercise from time to time of the over-
allotment option (a) a corresponding additional number of Junior
Subordinated Debentures not exceeding an aggregate principal amount of
$2,250,000 and (b) a corresponding number of Junior Subordinated
Debentures not exceeding an aggregate principal amount equal to the
aggregate Liquidation Amount of Common Securities issued pursuant to
such exercise from time to time of an over-allotment option; and, in
satisfaction of the purchase price for such Junior Subordinated
Debentures, the Property Trustee, on behalf of the Issuer Trust, shall
deliver to the Depositor the sum of $15,000,000, plus any corresponding
over-allotment option amount(s) (being the
12
sum of the amounts delivered to the Property Trustee pursuant to (a) the
second sentence of the first paragraph and the second paragraph of
Section 2.4 and (b) the first and second sentences of this Section 2.5)
and receive the Junior Subordinated Debentures on behalf of the Issuer
Trust.
Section 2.6. Declaration of Trust. The exclusive purposes
--------------------
and functions of the Issuer Trust are to (a) issue and sell Trust
Securities and use the proceeds from such sale to acquire the Junior
Subordinated Debentures, and (b) engage in only those other activities
necessary, convenient, or incidental thereto. The Depositor hereby
appoints the Issuer Trustees as trustees of the Issuer Trust, to have
all the rights, powers and duties to the extent set forth herein, and
the Issuer Trustees hereby accept such appointment. The Property
Trustee hereby declares that it will hold the Trust Property in trust
upon and subject to the conditions set forth herein for the benefit of
the Issuer Trust and the Holders. The Depositor hereby appoints the
Administrators (as agents of the Issuer Trust), with such Administrators
having all rights, powers, and duties set forth herein with respect to
accomplishing the purposes of the Issuer Trust, and the Administrators
hereby accept such appointment, provided, however, that it is the intent
of the parties hereto that such Administrators shall not be trustees or
fiduciaries with respect to the Issuer Trust and this Trust Agreement
shall be construed in a manner consistent with such intent. The
Property Trustee shall have the right, power and authority to perform
those duties assigned to the Administrators. 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 Administrators set forth herein. The Delaware Trustee shall be one
of the trustees of the Issuer Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware Business
Trust Act and for taking such actions as are required to be taken by a
Delaware trustee under the Delaware Business Trust Act.
Section 2.7. Authorization to Enter into Certain Transactions.
------------------------------------------------
(a) The Issuer Trustees and the Administrators shall conduct the
affairs of the Issuer Trust in accordance with the terms of this Trust
Agreement. Subject to the limitations set forth in paragraph (b) of
this Section 2.7 and in accordance with the following provisions (i) and
(ii), the Issuer Trustees and the Administrators shall act as follows:
(i) Each Administrator shall have the power and authority
and is hereby authorized and directed to act on behalf of the
Issuer Trust with respect to the following:
(A) the compliance with the Underwriting Agreement
regarding the issuance and sale of the Trust Securities;
(B) the compliance with the Securities Act,
applicable state securities or blue sky laws, and the Trust
Indenture Act;
(C) execute the Trust Securities on behalf of the
Issuer Trust in accordance with this Trust Agreement;
(D) the listing of the Preferred Securities upon the
American Stock Exchange or such other securities exchange or
exchanges or upon the Nasdaq National Market as shall be
determined by the Depositor, with the registration of the
Preferred Securities under the Exchange Act, if required,
and the preparation and filing of all periodic and other
reports and other documents pursuant to the foregoing;
13
(E) the application for a taxpayer identification
number for the Issuer Trust;
(F) the preparation of a registration statement and
a prospectus in relation to the Preferred Securities,
including any amendments thereto and the taking of any
action necessary or desirable to sell the Preferred
Securities in a transaction or series of transactions
subject to the registration requirements of the Securities
Act;
(G) cause the Issuer Trust to enter into, and
execute, deliver and perform on behalf of the Issuer Trust
all agreements, instruments, certificates or other documents
as such Administrator deems necessary or incidental to the
purposes and functions of the Issuer Trust; and
(H) any action incidental to the foregoing as the
Administrators may from time to time determine is necessary
or advisable to give effect to the terms of this Trust
Agreement.
(ii) The Property Trustee shall have the power and
authority, and is hereby authorized and directed, to act on behalf
of the Issuer Trust with respect to the following matters:
(A) establish and maintain the Payment Account;
(B) receive, take title to, and exercise all of the
rights, powers and privileges of the holder of the Junior
Subordinated Debentures;
(C) receive and collect interest, principal and any
other payments made in respect of the Junior Subordinated
Debentures in the Payment Account;
(D) distribute amounts owed to the Holders in
respect of the Trust Securities in accordance with the terms
of this Trust Agreement;
(E) act as Paying Agent and/or Securities Registrar
to the extent appointed as such hereunder;
(F) send notices of default and other notices and
information regarding the Trust Securities and the Junior
Subordinated Debentures to the Holders in accordance with
this Trust Agreement;
(G) distribute the Trust Property in accordance with
the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement,
wind up the affairs of and liquidate the Issuer Trust and
prepare, execute and file the certificate of cancellation
with the Secretary of State of the State of Delaware;
(I) after an Event of Default (other than under
paragraph (b), (c) or (d) of the definition of such term if
such Event of Default is by or with respect to the Property
Trustee), comply with the provisions of this Trust Agreement
and take any action 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
14
any particular Holder); provided, however, that nothing in
this Section 2.7(a)(ii) shall require the Property Trustee
to take any action that is not otherwise required in this
Trust Agreement; and
(J) take any action incidental or convenient 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; provided, however, that
nothing in this Section 2.7(a)(ii) shall require the
Property Trustee to take any action that is not otherwise
required in this Trust Agreement.
(b) So long as this Trust Agreement remains in effect, the
Issuer Trust (or the Issuer Trustees or Administrators acting on behalf
of the Issuer Trust) shall not undertake any business, activities or
transaction except as expressly provided herein or contemplated hereby.
In particular, neither the Issuer Trustees nor the Administrators (in
each case acting on behalf of the Issuer Trust) shall (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) take any action that would reasonably be expected to cause the
Issuer Trust to fail or cease to qualify as grantor trust for United
States federal income tax purposes, (iv) incur any indebtedness for
borrowed money or issue any other debt, or (v) take or consent to any
action that would result in the placement of a Lien on any of the Trust
Property. The Property Trustee shall defend all claims and demands of
all Persons at any time claiming any Lien on any of the Trust Property
adverse to the interest of the Issuer Trust or the Holders in their
capacity as Holders.
(c) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the power and authority to assist
the Issuer Trust with respect to, or effect on behalf of the Issuer
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):
(i) the preparation and filing by the Issuer Trust with
the Commission, and the execution and delivery on behalf of the
Issuer Trust, of a registration statement and a prospectus in
relation to the Preferred Securities, including any amendments
thereto, and the taking of any action necessary or desirable to
sell the Preferred Securities in a transaction or a series of
transactions subject to the registration requirements of the
Securities Act;
(ii) the determination of the states in which to take
appropriate action to qualify or register for sale all or part of
the Preferred Securities and the determination of any and all such
acts, other than actions that must be taken by or on behalf of the
Issuer Trust, and the advice to the Issuer Trustees of actions
they must take on behalf of the Issuer Trust, and the preparation
for execution and filing of any documents to be executed and filed
by the Issuer Trust or on behalf of the Issuer Trust, as the
Depositor deems necessary or advisable in order to comply with the
applicable laws of any such states in connection with the offer
and sale of the Preferred Securities;
(iii) the negotiation of the terms of, and the execution and
delivery of, the Underwriting Agreement providing for the sale of
the Preferred Securities;
(iv) the preparation and filing by the Issuer Trust with
the Commission and the execution on behalf of the Issuer Trust of
a registration statement on Form 8-A relating to the
15
registration of the Preferred Securities under Section 12(b) or
12(g) of the Exchange Act, as amended, including any amendments
thereto;
(v) compliance with the listing requirements of the
Preferred Securities upon the American Stock Exchange or such
other securities exchange or exchanges, or upon the Nasdaq
National Market, as shall be determined by the Depositor, the
registration of the Preferred Securities under the Exchange Act,
if required, and the preparation and filing of all periodic and
other reports and other documents pursuant to the foregoing; and
(vi) the taking of any other actions necessary or desirable
to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrators and the Property Trustee are authorized and directed to
conduct the affairs of the Issuer Trust and to operate the Issuer Trust
so that the Issuer Trust will not be deemed to be an "investment
company" required to be registered under the Investment Company Act, and
will be classified as a grantor trust (and not as an association taxable
as a corporation) for United States federal income tax purposes and so
that the Junior Subordinated Debentures will be treated as indebtedness
of the Depositor for United States federal income tax purposes. In this
connection, the Property Trustee, the Administrators, and the Holders of
Common Securities are authorized to take any action, not inconsistent
with applicable law, the Certificate of Trust, or this Trust Agreement,
that the Property Trustee, the Administrators, and Holders of Common
Securities determine in their 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 Administrators or the
Issuer Trustees be liable to the Issuer Trust or the Holders for any
failure to comply with this section that results from a change in law or
regulations or in the interpretation thereof.
Section 2.8. Assets of Trust. The assets of the Issuer Trust
---------------
shall consist solely of the Trust Property.
Section 2.9. Title to Trust Property. Legal title to all
Trust Property shall be vested at all times in the Issuer Trust and
shall be held and administered by the Property Trustee (in its capacity
as such) for the benefit of the Issuer Trust and the Holders in
accordance with this Trust Agreement.
ARTICLE III
-----------
PAYMENT ACCOUNT
---------------
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 its agents
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, including (and subject to) any priority
of payments provided for herein.
16
(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 or proceeds with respect to, the Junior Subordinated
Debentures. Amounts held in the Payment Account shall not be invested
by the Property Trustee pending distribution thereof.
ARTICLE IV
----------
DISTRIBUTIONS; REDEMPTION
-------------------------
Section 4.1. Distributions.
-------------
(a) The Trust Securities represent undivided beneficial
interests in the Trust Property, and Distributions (including
Distributions of Additional Amounts) will be made on the Trust
Securities at the rate and on the dates that payments of interest
(including payments of Additional Interest are made on the Junior
Subordinated Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be
cumulative and will accumulate whether or not there are funds of
the Issuer Trust available for the payment of Distributions.
Distributions shall accumulate from _________, 1999, and, except
in the event (and to the extent) that the Depositor exercises its
right to defer the payment of interest on the Junior Subordinated
Debentures pursuant to the Indenture, shall be payable quarterly
in arrears on March 31, June 30, September 30 and December 31 of
each year, commencing on September 30, 1999. 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 day that is a Business Day (without
any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding
calendar year, payment of such Distributions shall be made on the
immediately preceding Business Day, in either case with the same
force and effect as if made on the date on which such payment was
originally payable (each date on which distributions are payable
in accordance with this Section 4.1(a), a "Distribution Date").
(ii) The Trust Securities shall be entitled to
Distributions payable at a rate of ____% per annum of the
Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any period less than a full Distribution
period shall be computed on the basis of a 360-day year of twelve
30-day months and the actual number of days elapsed in a partial
month in a period. Distributions payable for each full
Distribution period will be computed by dividing the rate per
annum by four. The amount of Distributions payable for any period
shall include any Additional Amounts in respect of such period.
(iii) So long as no Debenture Event of Default has occurred
and is continuing, the Depositor has the right under the Indenture
to defer the payment of interest on the Junior Subordinated
Debentures at any time and from time to time for a period not
exceeding 20 consecutive quarterly periods (an "Extension
Period"), provided that no Extension Period may extend beyond
__________, 2029 or end on a date other than a Distribution Date.
As a consequence of any such deferral, quarterly Distributions on
the Trust Securities by the Issuer Trust will also be deferred
(and the amount of Distributions to which Holders of the Trust
Securities are entitled will accumulate additional Distributions
thereon at the rate per annum of ____% per annum, compounded
quarterly) from the relevant payment date for such Distributions,
computed on the basis of a 360-day year of twelve 30-day months and
the actual
17
days elapsed in a partial month in such period. Additional
Distributions payable for each full Distribution period will be
computed by dividing the rate per annum by four. The term
"Distributions" as used in Section 4.1 shall include any such
additional Distributions provided pursuant to this
Section 4.1(a)(iii). During an 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 capital stock, (ii) make any
payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Depositor
that rank pari passu with in all respects with or junior in
interest to the Securities, including the Depositor's obligations
associated with the outstanding trust preferred securities or (iii)
redeem, purchase or acquire less than all of the Junior Subordinated
Debentures or any Trust Preferred Securities (other
than (A) repurchases, redemptions or other acquisitions of shares
of capital stock of the Depositor in connection with any
employment contract, benefit plan or other similar arrangement
with or for the benefit of any one or more employees, officers,
directors or consultants, in connection with a dividend
reinvestment or stockholder stock purchase plan, (B) as a result of a
reclassification, an exchange or conversion of any class or series
of the Depositor's capital stock (or any capital stock of a
subsidiary of the Depositor) for any class or series of the
Depositor's capital stock, (C) the purchase of fractional
interests in shares of the Depositor's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (D) any declaration of a
dividend in connection with any rights plan, or the issuance of
rights, stock or other property under any rights plan, or the
redemption or repurchase of rights pursuant thereto, or (E) any
dividend in the form of stock, warrants, options or other rights
where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that
on which the dividend is being paid or ranks pari passu with or
junior to such stock).
(iv) Distributions on the Trust Securities shall be made by
the Property Trustee from the Payment Account and shall be payable
on each Distribution Date only to the extent that the Issuer Trust
has funds then 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 15th day of March, June, September or December (whether
or not a Business Day).
Section 4.2. Redemption.
----------
(a) On each Debenture Redemption Date and on the stated maturity
of the Junior Subordinated Debentures, the Issuer 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 30 nor more
than 60 days prior to the Redemption Date to each Holder of Trust
Securities to be redeemed, at such Holder's address appearing in the
Security Register. All notices of redemption shall state:
18
(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 together with a statement that it is an estimate and
that the actual Redemption Price will be calculated on the third
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, or as soon as practicable thereafter, that
notice of such actual Redemption Price is received pursuant to the
Indenture);
(iii) the CUSIP number or CUSIP numbers of the Preferred
Securities affected;
(iv) if less than all the Outstanding Trust Securities are
to be redeemed, the identification and the total Liquidation
Amount of the particular Trust Securities to be redeemed;
(v) that, on the Redemption Date, the Redemption Price
will become due and payable upon each such Trust Security to be
redeemed and that Distributions thereon will cease to accumulate
on and after said date, except as provided in Section 4.2(d)
below; and
(vi) the place or places where Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Issuer Trust in issuing the Trust Securities shall use "CUSIP"
numbers, and 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 material.
(c) The Trust Securities redeemed on each Redemption Date shall
be redeemed at the Redemption Price with the applicable proceeds from
the contemporaneous redemption of Junior Subordinated Debentures.
Redemptions of the Trust Securities shall be made and the Redemption
Price shall be payable on each Redemption Date only to the extent that
the Issuer Trust has funds then available in the Payment Account for the
payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New York City
time, on the Redemption Date, subject to Section 4.2(c), the Property
Trustee will, with respect to Preferred Securities held in global form,
irrevocably deposit with the Clearing Agency for such Preferred
Securities, to the extent available therefor, funds sufficient to pay
the applicable Redemption Price and will give such Clearing Agency
irrevocable instructions and authority to pay the Redemption Price to
the Owners of the Preferred Securities. With respect to Preferred
Securities that are not held in global form, the Property Trustee,
subject to Section 4.2(c), 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 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 called for
redemption shall be payable to the Holders of such Trust Securities as
they appear on the Securities Register for the Trust Securities 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
19
so called for redemption will cease, except the right of such Holders to
receive the Redemption Price and any Distributions payable in respect of
the Trust Securities on or prior to the Redemption Date, but without
interest, and such Trust Securities will cease to be Outstanding. In
the event that any date on which any applicable Redemption Price is
payable is not a Business Day, then payment of the applicable Redemption
Price payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect
of any such delay), except that, if such Business Day is 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 called for redemption is improperly
withheld or refused and not paid either by the Issuer Trust or by the
Depositor pursuant to the Guarantee Agreement, Distributions on such
Trust Securities will continue to accumulate, as set forth in
Section 4.1, from the Redemption Date originally established by the
Issuer Trust for such Trust Securities to the date such applicable
Redemption Price is actually paid, in which case the actual payment date
will be the date fixed for redemption for purposes of calculating the
applicable 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
particular Preferred Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Property Trustee
from the Outstanding Preferred Securities not previously called for
redemption in such a manner as the Property Trustee shall deem fair and
appropriate. The Property Trustee shall promptly notify the Securities
Registrar in writing of the Preferred Securities 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 Securities redeemed or to be
redeemed only in part, to the portion of the Liquidation Amount of
Preferred Securities which has been or is to be redeemed.
(f) Payment of the Redemption Price on the Trust Securities
shall be made to the record holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record
date, which shall be the date 15 days prior to the relevant Redemption
Date.
Section 4.3. Subordination of Common Securities.
----------------------------------
(a) Payment of Distributions (including Additional Amounts, if
applicable) 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 such Trust Securities;
provided, however, that if on any Distribution Date or Redemption Date
any Event of Default resulting from a Debenture Event of Default shall
have occurred and be continuing, no payment of any Distribution
(including any Additional Amounts, if applicable) on, or 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 Additional Amounts, if applicable) 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 Amounts, if
applicable) on, or the Redemption Price of, or Liquidation
20
Distribution in respect of Preferred Securities then due and payable.
The existence of an Event of Default does not entitle the Holders of
Preferred Securities to accelerate the maturity thereof.
(b) In the case of the occurrence of any Event of Default
resulting from any Debenture Event of Default, the Holder of the Common
Securities shall have no right to act with respect to any such Event of
Default under this Trust Agreement until the effects of 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 Holder of the Common Securities, and only the Holders
of 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 Amounts, if applicable) in respect of the
Preferred Securities shall be made by check mailed to the address of the
Person entitled thereto as such address shall appear on the Securities
Register or, if the Preferred Securities are held by a Clearing Agency,
such Distributions shall be made to the Clearing Agency in immediately
available funds, which will credit the relevant accounts on the
applicable Distribution Dates. Payments of Distributions to Holders of
$1,000,000 or more in aggregate Liquidation Amount of Preferred
Securities may be made by wire transfer of immediately available funds
upon written request of such Holder of Preferred Securities to the
Securities Registrar not later than 15 calendar days prior to the date
on which the Distribution is payable. 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 the Common Securities.
Section 4.5. Tax Returns and Reports.
-----------------------
(a) The Administrators shall prepare and file (or cause to be
prepared and filed), at the Depositor's expense, all United States
federal, state, and local tax and information returns and reports
required to be filed by or in respect of the Issuer Trust. In this
regard, the Administrators shall (i) prepare and file (or cause to be
prepared and filed) all Internal Revenue Service forms required to be
filed in respect of the Issuer Trust in each taxable year of the Issuer
Trust and (ii) prepare and furnish (or cause to be prepared and
furnished) to each Holder all Internal Revenue Service forms required to
be provided by the Issuer Trust. The Administrators shall provide the
Depositor and the Property Trustee with a copy of all such returns and
reports promptly after such filing or furnishing. The Issuer Trustees
and the Administrators shall comply with United States federal
withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Holders under the Trust
Securities.
(b) On or before December 15 of each year during which any
Preferred Securities are outstanding, the Administrators shall furnish
to the Paying Agent such information as may be reasonably requested by
the Property Trustee in order that the Property Trustee may prepare the
information which it is required to report for such year on Internal
Revenue Service Forms 1096 and 1099 pursuant to Section 6049 of the
Code. Such information shall include the amount of original issue
discount includible in income for each outstanding Preferred Security
during such year.
Section 4.6. Payment of Taxes; Duties, Etc. of the Issuer
--------------------------------------------
Trust. Upon receipt under the Junior Subordinated Debentures of
-----
Additional Sums, the Property Trustee, at the written direction of an
Administrator or the Depositor, shall promptly pay any taxes, duties or
governmental charges of whatsoever nature (other than withholding taxes)
imposed on the Issuer Trust by the United States or any other taxing
authority.
21
Section 4.7. 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 related thereto) has directly received
pursuant to Section 5.8 of the Indenture or Section 5.13 of this Trust
Agreement.
Section 4.8. Liability of the Holder of Common Securities.
--------------------------------------------
The Holder of Common Securities shall be liable for the debts and
obligations of the Issuer Trust as set forth in Section 6.7(c) of the
Indenture regarding allocation of expenses.
ARTICLE V
---------
TRUST SECURITIES CERTIFICATES
-----------------------------
Section 5.1. Initial Ownership. 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
Issuer Trust.
Section 5.2. The Trust Securities Certificates.
---------------------------------
(a) The Trust Securities Certificates shall be executed on
behalf of the Issuer Trust by manual or facsimile signature of at least
one Administrator, except as provided in Section 5.3. Trust Securities
Certificates bearing the signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on
behalf of the Issuer Trust, shall be validly issued and entitled to the
benefits of this Trust Agreement, notwithstanding that such individuals
or any of them shall have ceased to be so authorized prior to the
delivery of such Trust Securities Certificates or did not hold such
offices at the date of delivery of such Trust Securities Certificates.
The Preferred Securities Certificate shall be issued in minimum
denominations of $10 and integral multiples of $10 in excess thereof. A
transferee of a Trust Securities Certificate shall become a Holder, and
shall be entitled to the rights and subject to the obligations of a
Holder hereunder, upon due registration of such Trust Securities
Certificate in such transferee's name pursuant to Section 5.5.
(b) Upon their original issuance, Preferred Securities
Certificates shall be issued in the form of one or more fully registered
Global Preferred Securities Certificates which will be deposited with or
on behalf of Cede as the Depositary's nominee and registered in the name
of Cede as the Depositary's nominee. Unless and until it is
exchangeable in whole or in part for the Preferred Securities in
definitive form, a global security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor of such
Depositary or a nominee of such successor.
(c) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of a
definitive Common Securities Certificate.
Section 5.3. Execution and Delivery of Trust Securities
-------------------------------------------
Certificates. On the Closing Date, and on any Option Closing Date, if
------------
applicable, an Administrator shall cause Trust Securities Certificates,
in an aggregate Liquidation Amount as provided in Sections 2.4 and 2.5,
as the case may be, to be executed on behalf of the Issuer Trust and
delivered to the Property Trustee and upon such delivery the Property
Trustee shall authenticate such Trust Securities Certificates and
deliver such Trust Securities Certificates upon the written order of the
Issuer Trust, executed by an Administrator thereof, without
22
further corporate action by the Issuer Trust, in authorized
denominations, and whereupon the Trust Securities evidenced by such
Trust Securities Certificates shall be duly and validly issued undivided
beneficial interests in the assets of the Issuer Trust and entitled to
the benefits of this Trust Agreement.
Section 5.4. Global Preferred Security.
-------------------------
(a) Any Global Preferred Security issued under this Trust
Agreement shall be registered in the name of the nominee of the Clearing
Agency and delivered to such custodian therefor, and such Global
Preferred Security shall constitute a single Preferred Security for all
purposes of this Trust Agreement.
(b) Notwithstanding any other provision in this Trust Agreement,
a Global Preferred Security may not be exchanged in whole or in part for
Preferred Securities registered, and no transfer of the Global Preferred
Security in whole or in part may be registered, in the name of any
Person other than the Clearing Agency for such Global Preferred
Security, Cede, or other nominee thereof unless (i) such Clearing Agency
advises the Depositor and the Issuer Trustees in writing that such
Clearing Agency is no longer willing or able to properly discharge its
responsibilities as Clearing Agency with respect to such Global
Preferred Security, and the Depositor is unable to locate a qualified
successor within 90 days of receipt of such notice from the Depositary,
(ii) the Depositor at its option advises the Depositary in writing that
it elects to terminate the book-entry system through the Clearing
Agency, or (iii) there shall have occurred and be continuing an Event of
Default.
(c) If a Preferred Security is to be exchanged in whole or in
part for a beneficial interest in a 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
Liquidation Amount thereof shall be reduced or increased by an amount
equal to the portion thereof to be so exchanged or cancelled, or equal
to the Liquidation Amount of such other Preferred Security to be so
exchanged for a beneficial interest therein, as the case may be, by
means of an appropriate adjustment made on the records of the Security
Registrar, whereupon the Property Trustee, in accordance with the
Applicable Procedures, shall instruct the Clearing Agency or its
authorized representative to make a corresponding adjustment to its
records. Upon any such surrender or adjustment of a Global Preferred
Security by the Clearing Agency, accompanied by registration
instructions, the Property Trustee shall, subject to Section 5.4(b) and
as otherwise provided in this Article V, authenticate and deliver and an
Administrator shall execute any Preferred Securities issuable in
exchange for such Global Preferred Security (or any portion thereof) in
accordance with the instructions of the Clearing Agency. The Property
Trustee shall not 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.
(d) Every Preferred Security registered, executed,
authenticated, and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Preferred Security or any portion
thereof, whether pursuant to this Article V or Article IV or otherwise,
shall be executed, authenticated and delivered in the form of, and shall
be, a Global Preferred Security, unless such Global Preferred Security
is registered in the name of a Person other than the Clearing Agency for
such Global Preferred Security or a nominee thereof.
(e) The Clearing Agency or its nominee, as the registered owner
of a Global Preferred Security, shall be considered the Holder of the
Preferred Securities represented by such Global Preferred Security for
all purposes under this Trust Agreement and the Preferred Securities,
and Owners of beneficial interests in such Global Preferred Security
shall hold such interests pursuant to the applicable
23
Procedures and, except as otherwise provided herein, shall not be
entitled to receive physical delivery of any such Preferred Securities
in definitive form and shall not be considered the Holders thereof under
this Trust Agreement. Accordingly, any such Owner's beneficial interest
in the Global Preferred Security shall be shown only on, and the
transfer of such interest shall be effected only through, records
maintained by the Clearing Agency or its nominee. Neither the Property
Trustee, the Securities Registrar nor the Depositor shall have any
liability in respect of any transfers effected by the Clearing Agency.
(f) The rights of Owners of beneficial interests in a Global
Preferred Security shall be exercised only through the Clearing Agency
and shall be limited to those established by law and agreements between
such Owners and the Clearing Agency.
Section 5.5. Registration of Transfer and Exchange Generally;
------------------------------------------------
Certain Transfers and Exchanges; Preferred Securities Certificates.
------------------------------------------------------------------
(a) The Property Trustee shall keep or cause to be kept at its
Corporate Trust Office a register or registers for the purpose of
registering Preferred Trust Securities Certificates and transfers and
exchanges of Preferred Securities Certificates in which the registrar
and transfer agent with respect to the Preferred 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 (subject to
Section 5.11 in the case of Common Securities Certificates) and
registration of transfers and exchanges of Preferred Securities
Certificates as herein provided. Such register is herein sometimes
referred to as the "Securities Register." The Property Trustee is
hereby appointed "Securities Registrar" for the purpose of registering
Preferred Securities and transfers of Preferred Securities as herein
provided.
Upon surrender for registration of transfer of any Preferred
Security at the offices or agencies of the Property Trustee designated
for that purpose, an Administrator shall execute and the Property
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Preferred Securities of the
same series of any authorized denominations of like tenor and aggregate
Liquidation Amount and bearing such legends as may be required by this
Trust Agreement.
At the option of the Holder, Preferred Securities may be exchanged
for other Preferred Securities of any authorized denominations, of like
tenor and aggregate Liquidation Amount and bearing such legends as may
be required by this Trust Agreement, upon surrender of the Preferred
Securities to be exchanged at such office or agency. Whenever any
Preferred Securities are so surrendered for exchange, an Administrator
shall execute and the Property Trustee shall authenticate and deliver
the Preferred Securities that the Holder making the exchange is entitled
to receive.
All Preferred Securities issued upon any transfer or exchange of
Preferred Securities shall be the valid obligations of the Issuer Trust,
evidencing the same interest, and entitled to the same benefits under
this Trust Agreement, as the Preferred Securities surrendered upon such
transfer or exchange.
Every Preferred Security presented or surrendered for transfer or
exchange shall (if so required by the Property Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Property Trustee and the Securities Registrar, duly
executed by the Holder thereof or such Holder's attorney duly authorized
in writing.
24
No service charge shall be made to a Holder for any transfer or
exchange of Preferred Securities, but the Property Trustee may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange
of Preferred Securities.
Neither the Issuer Trust nor the Property Trustee shall be
required, pursuant to the provisions of this Section, (i) to issue,
register the transfer of, or exchange any Preferred Security during a
period beginning at the opening of business 15 days before the day of
selection for redemption of 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.
(b) Certain Transfers and Exchanges. Trust Securities may only
-------------------------------
be transferred, in whole or in part, in accordance with the terms and
conditions set forth in this Trust Agreement. Any transfer or purported
transfer of any Trust Security not made in accordance with this Trust
Agreement shall be null and void.
(i) Non-Global Security to Non-Global Security. A Trust
------------------------------------------
Security that is not a Global Preferred Security may be
transferred, in whole or in part, to a Person who takes delivery
in the form of another Trust Security that is not a Global
Preferred Security as provided in Section 5.5(a).
(ii) Free Transferability. Subject to this Section 5.5,
--------------------
Preferred Securities shall be freely transferable.
(iii) Exchanges Between Global Preferred Security and Non-
----------------------------------------------------
Global Preferred Security. A beneficial interest in a Global
-------------------------
Preferred Security may be exchanged for a Preferred Security that
is not a Global Preferred Security as provided in Section 5.4.
Section 5.6. Mutilated, Destroyed, Lost or Stolen Trust
------------------------------------------
Securities Certificates. If (a) any mutilated Trust Securities
-----------------------
Certificate shall be surrendered to the Securities Registrar, or if the
Securities Registrar shall receive evidence to its satisfaction of the
destruction, loss, or theft of any Trust Securities Certificate and
(b) there shall be delivered to the Securities Registrar and the
Administrators such security or indemnity as may be required by them to
save each of them harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a bona fide
purchaser or a protected purchaser, the Administrators, or any one of
them, on behalf of the Issuer Trust shall execute and make available for
delivery, and the Property Trustee shall authenticate, in exchange for
or in lieu of any such mutilated, destroyed, lost, or stolen Trust
Securities Certificate, a new Trust Securities Certificate of like
class, tenor and denomination. In connection with the issuance of any
new Trust Securities Certificate under this Section, the Administrators
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. Any duplicate Trust Securities Certificate issued
pursuant to this Section shall constitute conclusive evidence of an
undivided beneficial interest in the assets of the Issuer Trust
corresponding to that evidenced by the lost, stolen or destroyed Trust
Securities Certificate, as if originally issued, whether or not the
lost, stolen or destroyed Trust Securities Certificate shall be found at
any time.
Section 5.7. Persons Deemed Holders. The Issuer Trustees,
----------------------
the Administrators, the Securities Registrar, or the Depositor shall
treat the Person in whose name any Trust Securities are
25
registered in the Securities Register as the owner of such Trust
Securities for the purpose of receiving Distributions and for all other
purposes whatsoever, and none of the Issuer Trustees, the
Administrators, the Securities Registrar nor the Depositor shall be
bound by any notice to the contrary.
Section 5.8. Access to List of Holders' Names and Addresses.
----------------------------------------------
Each Holder and each Owner shall be deemed to have agreed not to hold
the Depositor, the Property Trustee, or the Administrators accountable
by reason of the disclosure of its name and address, regardless of the
source from which such information was derived.
Section 5.9. Maintenance of Office or Agency. The Property
-------------------------------
Trustee shall designate, with the consent of the Administrators, which
consent shall not be unreasonably withheld, an office or offices or
agency or agencies where Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where notices
and demands to or upon the Issuer Trustees in respect of the Trust
Securities Certificates may be served. The Property Trustee initially
designates its Corporate Trust Office for such purposes. The Property
Trustee shall give prompt written notice to the Depositor, the
Administrators and the Holders of any change in the location of the
Securities Register or any such office or agency.
Section 5.10. Appointment of Paying Agent. 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
Administrators. 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 Property Trustee may revoke
such power and remove any Paying Agent in its sole discretion. The
Paying Agent shall initially be the Property Trustee. Any Person
acting as Paying Agent shall be permitted to resign as Paying Agent upon
at least 30 days' written notice to the Administrators and the Property
Trustee. In the event that 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 Property Trustee shall appoint a successor (which
shall be a bank or trust company) that is reasonably acceptable to the
Administrators to act as Paying Agent. Such successor Paying Agent
appointed by the Property Trustee, or any additional Paying Agent
appointed by the Administrators, shall execute and deliver to the Issuer
Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Issuer Trustees that as
Paying Agent, such successor Paying Agent or additional 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 Sections 8.1, 8.3 and 8.6
herein shall apply to the Bank also in its role as Paying Agent, for so
long as the Bank 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 chosen by the Property Trustee unless the context
requires otherwise.
Section 5.11. Ownership of Common Securities by Depositor. On
-------------------------------------------
the Closing Date, and on any Option Closing Date, if applicable, the
Depositor shall acquire and 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 of the Common
Securities, and the Depositor or any successor Holder may transfer the
Common Securities only (a) in connection with a consolidation or merger
of the Depositor into another corporation or any conveyance, transfer or
lease by the Depositor of its properties and assets substantially as an
entirety to any Person, pursuant to Section 8.1 of the Indenture, or
(b) a transfer to an Affiliate of the Depositor in compliance with
applicable law (including the Securities Act
26
and applicable state securities and blue sky laws). To the fullest
extent permitted by law, any other attempted transfer of the Common
Securities shall be void. The Administrators shall cause each Common
Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO A SUCCESSOR IN
INTEREST TO THE DEPOSITOR OR AN AFFILIATE OF THE DEPOSITOR IN COMPLIANCE
WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT."
Section 5.12. Notices to Clearing Agency. 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 Securities Certificate, the Administrators and the
Property Trustee shall give all such notices and communications
specified herein to be given to the Clearing Agency, and shall have no
obligations to the Owners.
Section 5.13. Rights of Holders.
-----------------
(a) The legal title to all Trust Property shall be vested at all
times in the Issuer Trust and shall be held and administered by the
Property Trustee (in its capacity as such) in accordance with
Section 2.9, and the Holders shall not have any right or title therein
other than the undivided beneficial interest in the assets of the Issuer
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 Issuer 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. The Trust Securities shall have no
preemptive or similar rights and when issued and delivered to Holders
against payment of the purchase price therefor will be validly issued,
fully paid and nonassessable undivided beneficial interests in the Trust
Property. Subject to Section 4.8 hereof, 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.
(b) For so long as any Preferred Securities remain Outstanding,
if, upon a Debenture Event of Default, the Debenture Trustee fails, or
the holders of not less than 25% in principal amount of the outstanding
Junior Subordinated Debentures fail, to declare the principal of all of
the Junior Subordinated Debentures to be immediately due and payable,
the Holders of at least 25% in Liquidation Amount of the Preferred
Securities then Outstanding shall have such right to make such
declaration by a notice in writing to the Property Trustee, the
Depositor and the Debenture Trustee.
At any time after such a declaration of acceleration with respect
to the Junior Subordinated Debentures has been made and before a
judgment or decree for payment of the money due has been obtained by the
Debenture Trustee as provided in the Indenture, the Holders of a
Majority in Liquidation Amount of the Preferred Securities, by written
notice to the Property Trustee, the Depositor, and the Debenture
Trustee, may rescind and annul such declaration and its consequences if:
(i) the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay:
(A) all overdue installments of interest on all of
the Junior Subordinated Debentures,
(B) any accrued Additional Interest on all of the
Junior Subordinated Debentures,
27
(C) the principal of (and premium, if any, on) any
Junior Subordinated Debentures which have become due
otherwise than by such declaration of acceleration and
interest and Additional Interest thereon at the rate borne
by the Junior Subordinated Debentures, and
(D) all sums paid or advanced by the Debenture
Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Debenture
Trustee and the Property Trustee, their agents and counsel;
and
(ii) all Events of Default with respect to the Junior
Subordinated Debentures, other than the non-payment of the
principal of the Junior Subordinated Debentures which has become
due solely by such acceleration, have been cured or waived as
provided in Section 5.13 of the Indenture.
The Holders of a Majority in Liquidation Amount of the Preferred
Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default under the Indenture, except a default
in the payment of principal or interest (unless such default has been
cured and a sum sufficient to pay all matured installments of interest
and principal due otherwise than by acceleration has been deposited with
the Debenture Trustee) or a default in respect of a covenant or
provision which under the Indenture cannot be modified or amended
without the consent of the holder of each outstanding Junior
Subordinated Debentures affected thereby. No such rescission shall
affect any subsequent default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice declaring
such an acceleration, or rescission and annulment thereof, by Holders of
the Preferred Securities all or part of which is represented by Global
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 which is 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 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 which 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 5.13(b).
(c) 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 Debenture Event of Default,
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 the
principal amount of or interest on Junior Subordinated Debentures having
an aggregate principal amount equal to the aggregate Liquidation Amount
of the Preferred Securities of such Holder (a "Direct Action"). Except
as set forth in Sections 5.13(b) and 5.13(c) of this Trust Agreement, the
28
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
Junior Subordinated Debentures.
ARTICLE VI
----------
ACTS OF HOLDERS; MEETINGS; VOTING
---------------------------------
Section 6.1. Limitations on Holder's Voting Rights.
-------------------------------------
(a) Except as 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 Issuer
Trust or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Trust Securities
Certificates be construed so as to constitute the Holders from time to
time as members of an association.
(b) So long as any Junior Subordinated Debentures are held by
the Property Trustee on behalf of the Issuer Trust, the Property Trustee
shall not (i) direct the time, method, and place of conducting any
proceeding for any remedy available to the Property Trustee, or
executing any trust or power conferred on the Debenture Trustee with
respect to such Junior Subordinated Debentures, (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 Junior Subordinated Debentures shall be due and
payable, or (iv) consent to any amendment, modification, or termination
of the Indenture or the Junior Subordinated Debentures, where such
consent shall be required, without, in each case, obtaining the prior
approval of the Holders of a Majority in Liquidation Amount of the
Preferred Securities; provided, however, that where a consent under the
Indenture would require the consent of each holder of Junior
Subordinated Debentures 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
Preferred Securities, except by a subsequent vote of the Holders of
Preferred Securities. The Property Trustee shall notify all Holders of
the Preferred Securities of any notice of default received with respect
to the Junior Subordinated Debentures. 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 will not cause the Issuer
Trust to fail or cease to be treated as grantor trust for United States
federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Issuer Trust otherwise proposes to effect, (i) any action
that would adversely affect in any material respect the interests,
powers, preferences, or special rights of the Preferred Securities,
whether by way of amendment to the Trust Agreement or otherwise, or
(ii) the dissolution of the Issuer 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 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 Issuer Trust fail or
cease to be treated as a grantor trust for United States federal income
tax purposes.
Section 6.2. Notice of Meetings. Notice of all meetings of
------------------
the Holders, stating the time, place, and purpose of the meeting, shall
be given by the Property Trustee pursuant to Section 10.8 to each
29
Holder of record, at his registered address, at least 15 days and not
more than 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 6.3. Meetings of Holders.
-------------------
(a) No annual meeting of Holders is required to be held. The
Property Trustee, however, shall call a meeting of Holders to vote on
any matter upon the written request of the Holders of record of 25% or
more of the aggregate Liquidation Amount of the Preferred Securities and
the Administrators or the Property Trustee may, at any time in their
discretion, call a meeting of Holders of Preferred Securities to vote on
any matters as to which Holders are entitled to vote.
(b) Holders of a Majority in Liquidation Amount of the Preferred
Securities, present in person or represented by proxy, shall constitute
a quorum at any meeting of Holders of Preferred Securities.
(c) If a quorum is present at a meeting, an affirmative vote by
the Holders of record present, in person or by proxy, holding Preferred
Securities representing 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
Preferred Securities, unless this Trust Agreement requires a greater
number of affirmative votes.
Section 6.4. Voting Rights. Holders shall be entitled to one
-------------
vote for each $10 of Liquidation Amount represented by their Outstanding
Trust Securities in respect of any matter as to which such Holders are
entitled to vote.
Section 6.5. 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 Property Trustee, or with such other officer or agent of
the Issuer Trust as the Property Trustee 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 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 6.6. Holder Action by Written Consent. Any action
--------------------------------
which may be taken by Holders at a meeting may be taken without a
meeting if Holders holding a Majority in Liquidation Amount of all Trust
Securities entitled to vote in respect of such action (or such larger
proportion thereof as shall be required by any other provision of this
Trust Agreement) shall consent to the action in writing.
Section 6.7. Record Date for Voting and Other Purposes. For
-----------------------------------------
the purposes of determining the Holders who are entitled to notice of
and to vote at any meeting or by written consent, or to participate in
any Distribution on the Trust Securities in respect of which a record
date is not otherwise
30
provided for in this Trust Agreement, or for the purpose of any other
action, the Administrators (or the Property Trustee if the
Administrators are unable or unwilling to act) may from time to time fix
a date, not more than 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 6.8. 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 duly appointed in
writing; and, except as otherwise expressly provided herein, such action
shall become effective when such instrument or instruments are delivered
to the Property 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 (subject to Section 8.1) conclusive in favor of the Issuer Trustees,
if made in the manner provided in this Section 6.8.
(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 his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his 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 which any Issuer Trustee or Administrator 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 Issuer Trustees, the
Administrators, or the Issuer 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, the
Administrators or the Issuer Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Holder or Issuer Trustee
under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
31
Section 6.9. Inspection of Records. Upon reasonable notice
---------------------
to the Administrators and the Property Trustee, the records of the
Issuer Trust shall be open to inspection by Holders during normal
business hours for any purpose reasonably related to such Holder's
interest as a Holder.
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 (and any successors thereto at the time of their appointment),
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 banking corporation duly
organized, validly existing and in good standing under the laws of New
York, with trust power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of this Trust
Agreement.
(b) The execution, delivery, and performance by the Property
Trustee of this Trust Agreement has been duly authorized by all
necessary corporate action on the part of the Property Trustee; and this
Trust Agreement has been duly executed and delivered by the Property
Trustee, and constitutes a legal, valid, and binding obligation of the
Property Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights generally
and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in
a proceeding in equity or at law).
(c) The execution, delivery and performance of this Trust
Agreement by the Property Trustee does not conflict with or constitute a
breach of the certificate of incorporation or by-laws of the Property
Trustee.
(d) At the Time of Delivery, the Property Trustee has not
knowingly created any Liens or encumbrances on the Trust Securities.
(e) No consent, approval, or authorization of, or registration
with or notice to, any New York State or federal banking authority is
required for the execution, delivery, or performance by the Property
Trustee, of this Trust Agreement.
(f) The Delaware Trustee is duly organized, validly existing,
and in good standing under the laws of the State of Delaware, with trust
power and authority to execute and deliver, and to carry out and perform
its obligations under the terms of, the Trust Agreement.
(g) The execution, delivery and performance by the Delaware
Trustee of this Trust Agreement has been duly authorized by all
necessary corporate action on the part of the Delaware Trustee; and this
Trust Agreement has been duly executed and delivered by the Delaware
Trustee, and constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' right generally
and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in
a proceeding in equity or at law).
32
(h) The execution, delivery and performance of this Trust
Agreement by the Delaware Trustee does not conflict with or constitute a
breach of the certificate of incorporation or by-laws of the Delaware
Trustee.
(i) No consent, approval or authorization of, or registration
with or notice to any state or Federal banking authority is required for
the execution, delivery, or performance by the Delaware Trustee, of this
Trust Agreement.
(j) The Delaware Trustee is an entity which has its principal
place of business in the State of Delaware.
Section 7.2. Representations and Warranties of the Depositor.
-----------------------------------------------
The Depositor hereby represents and warrants for the benefit of the
Holders that:
(a) the Trust Securities Certificates issued at the Time of
Delivery on behalf of the Issuer Trust have been duly authorized and
will have been duly and validly executed, and, subject to payment
therefor, issued and delivered by the Issuer 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 each such date,
entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges
payable by the Issuer Trust (or the Issuer Trustees on behalf of the
Issuer Trust) under the laws of the State of Delaware or any political
subdivision thereof in connection with the execution, delivery and
performance by either the Property Trustee or the Delaware Trustee, as
the case may be, of this Trust Agreement.
ARTICLE VIII
------------
THE ISSUER TRUSTEES; THE ADMINISTRATORS
---------------------------------------
Section 8.1. Certain Duties and Responsibilities.
-----------------------------------
(a) The duties and responsibilities of the Issuer Trustees and
the Administrators shall be as provided by this Trust Agreement and, in
the case of the Property Trustee, by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Trust Agreement
shall require the Issuer Trustees or the Administrators to expend or
risk their own funds or otherwise incur any financial liability in the
performance of any of their duties hereunder, or in the exercise of any
of their rights or powers, if 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 or them. Whether
or not therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of or
affording protection to the Issuer Trustees or the Administrators shall
be subject to the provisions of this Section 8.1. Nothing in this Trust
Agreement shall be construed to release an Administrator or the Issuer
Trustees from liability for his or its own negligent action, his or its
own negligent failure to act, or his or its own willful misconduct. To
the extent that, at law or in equity, an Issuer Trustee or Administrator
has duties and liabilities relating to the Issuer Trust or to the
Holders, such Issuer Trustee or Administrator shall not be liable to the
Issuer Trust or to any Holder for such Issuer Trustee's or
Administrator's good faith reliance on the provisions of this Trust
Agreement. The provisions of this Trust Agreement, to the extent that
they restrict the duties and liabilities of the Issuer Trustees and
Administrators otherwise
33
existing at law or in equity, are agreed by the Depositor and the
Holders to replace such other duties and liabilities of the Issuer
Trustees and Administrators.
(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 his or its acceptance
of a Trust Security, agrees that he or it will look solely to the
revenue and proceeds from the Trust Property to the extent legally
available for distribution to it or him as herein provided and that
neither the Issuer Trustees nor the Administrators are personally liable
to it or him for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security.
This Section 8.1(b) does not limit the liability of the Issuer Trustees
expressly set forth elsewhere in this Trust Agreement or, in the case of
the Property Trustee, in the Trust Indenture Act.
(c) The Property Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are
specifically set forth in this Trust Agreement (including pursuant to
Section 10.10), and no implied covenants shall be read into this Trust
Agreement against the Property Trustee. If an Event of Default has
occurred (that has not been cured or waived pursuant to Section 5.13 of
the Indenture), the Property Trustee shall enforce this Trust Agreement
for the benefit of the Holders and shall 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 thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct,
except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that may
have occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions
of this Trust Agreement (including pursuant to
Section 10.10), and the Property Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Trust Agreement
(including pursuant to Section 10.10); and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively
rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or
opinions furnished to the Property Trustee and conforming to
the requirements of this Trust Agreement; but in the case of
any such certificates or opinions that by any provision
hereof or of the Trust Indenture Act are specifically
required to be furnished to the Property Trustee, the
Property Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements
of this Trust Agreement;
(ii) the Property Trustee shall not be liable for any error
of 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;
34
(iii) 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 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, or exercising any trust or
power conferred upon the Property Trustee under this Trust
Agreement;
(iv) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Junior
Subordinated Debentures 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 and the Trust Indenture Act;
(v) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise
agree with the Depositor; 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;
(vi) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrators 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 Issuer Trustee, the Administrators or the Depositor; and
(vii) no provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if
the Property Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Trust Agreement or adequate
indemnity against such risk or liability is not reasonably assured
to it.
(e) The Administrators shall not be responsible for monitoring
the compliance by the Issuer Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall either
Administrator be liable for the default or misconduct of any other
Administrator, the Issuer Trustees or the Depositor.
Section 8.2. Certain Notices.
---------------
(a) Within five Business Days after the occurrence of any Event
of Default actually known to a Responsible Officer of the Property
Trustee, the Property Trustee shall transmit, in the manner and to the
extent provided in Section 10.8, notice of such Event of Default to the
Holders and the Administrators, unless such Event of Default shall have
been cured or waived.
(b) Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on
the Junior Subordinated Debentures pursuant to the Indenture, the
Property Trustee shall transmit, in the manner and to the extent
provided in Section 10.8, notice of such exercise to the Holders and the
Administrators, unless such exercise shall have been revoked.
35
(c) In the event the Property Trustee receives notice of the
Depositor's exercise of its right to shorten the stated maturity of the
Junior Subordinated Debentures as provided in Section 3.16 of the
Indenture, the Property Trustee shall give notice of such shortening of
the stated maturity to the Holders at least 30 but not more than 60 days
before the effective date thereof.
Section 8.3. Certain Rights of Property Trustee. Subject to
----------------------------------
the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be fully protected
in acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, 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) any direction or act of the Depositor contemplated by this
Trust Agreement shall be sufficiently evidenced by an Officers'
Certificate;
(c) 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, refiling or re-registration
thereof;
(d) the Property Trustee may consult with counsel of its own
choosing (which counsel may be counsel to 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;
(e) 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 security or indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction; provided that, nothing
contained in this Section 8.3(e) shall be taken to relieve the Property
Trustee, upon the occurrence of an Event of Default, of its obligation
to exercise the rights and powers vested in it by this Trust Agreement;
(f) 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,
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;
(g) the Property Trustee may execute any of the trusts or powers
hereunder or perform any of its duties hereunder either directly or by
or through its agents or attorneys, provided that the Property Trustee
shall not be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder;
(h) 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 or taking any other
36
action 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 the terms of the Trust
Securities 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 fully protected in
acting in accordance with such instructions; and
(i) 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.
No provision of this Trust Agreement shall be deemed to impose any
duty or obligation on any Issuer Trustee or Administrator 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 the Property Trustee 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. No permissive power
or authority available to any Issuer Trustee or Administrator shall be
construed to be a duty.
Section 8.4. Not Responsible for Recitals or Issuance of
-------------------------------------------
Securities. The recitals contained herein and in the Trust Securities
----------
Certificates shall be taken as the statements of the Issuer Trust, and
the Issuer Trustees and the Administrators do not assume any
responsibility for their correctness. The Issuer Trustees and the
Administrators shall not be accountable for the use or application by
the Depositor of the proceeds of the Junior Subordinated Debentures.
Section 8.5. May Hold Securities. Except as provided in the
-------------------
definition of the term "Outstanding" in Article I, the Administrators,
any Issuer Trustee or any other agent of any Issuer Trustee or the
Issuer Trust, in its individual or any other capacity, may become the
owner or pledgee of Trust Securities and, subject to Sections 8.8 and
8.13, may otherwise deal with the Issuer Trust with the same rights it
would have if it were not an Administrator, Issuer Trustee or such other
agent.
Section 8.6. Compensation; Indemnity; Fees. The Depositor
-----------------------------
agrees:
(a) to pay to the Issuer Trustees from time to time reasonable
compensation for all services rendered by them hereunder (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 Issuer Trustees and the Administrators upon
request for all reasonable expenses, disbursements, and advances
incurred or made by the Issuer Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation, expenses
and disbursements of its agents and counsel), except any such expense,
disbursement, or advance as may be attributable to the Issuer Trustees'
bad faith, negligence or willful misconduct; and
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Issuer Trustee, (ii) each
Administrator, (iii) any Affiliate of any Issuer Trustee, (iv) any
officer, director, shareholder, employee, representative or agent of any
Issuer Trustee, and (v) any employee or agent of the Issuer Trust
(referred to herein as an "Indemnified Person"), from and against any
loss, damage, liability, tax (excluding income taxes, other than taxes
referred to in Sections 4.5 and 4.6 hereunder), penalty, expense or
claim of any kind or nature whatsoever incurred by such Indemnified
Person arising out of or in connection with the creation, operation, or
dissolution of the Issuer Trust or any act or
37
omission performed or omitted by such Indemnified Person in good faith
on behalf of the Issuer Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on
such Indemnified Person by this Trust Agreement, except that no
Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of
bad faith, negligence or willful misconduct with respect to such acts or
omissions. The indemnification provided to an Indemnified Party in this
Trust Agreement shall not be exclusive and nothing in this Trust
Agreement shall limit any indemnification for actions taken in
connection with this Trust Agreement or otherwise which may be available
or provided to such Indemnified Party under other sources.
The provisions of this Section 8.6 shall survive the termination
of this Trust Agreement.
No Issuer Trustee may claim any lien or charge on any Trust
Property as a result of any amount due pursuant to this Section 8.6.
The Depositor, any Administrator and any Issuer Trustee may engage
in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the
business of the Issuer Trust, and the Issuer Trust and the Holders of
Trust Securities shall have no rights by virtue of this Trust Agreement
in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with
the business of the Issuer Trust, shall not be deemed wrongful or
improper. Neither the Depositor, any Administrator, nor any Issuer
Trustee shall be obligated to present any particular investment or other
opportunity to the Issuer Trust even if such opportunity is of a
character that, if presented to the Issuer Trust, could be taken by the
Issuer Trust, and the Depositor, any Administrator or any Issuer Trustee
shall have the right to take for its own account (individually or as a
partner or fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Issuer Trustee may engage or be
interested in any financial or other transaction with the Depositor or
any Affiliate of the Depositor, or may act as depository for, trustee or
agent for, or act on any committee or body of holders of, securities or
other obligations of the Depositor or its Affiliates.
Section 8.7. Corporate Property Trustee Required; Eligibility
-------------------------------------------------
of Trustees and Administrators.
------------------------------
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall be a
Person that is a national or state chartered bank and eligible pursuant
to the Trust Indenture Act to act as such and has a combined capital and
surplus of at least $50,000,000. 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, 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
with respect to the Trust Securities shall cease to be eligible in
accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in
this Article VIII. At the time of appointment, the Property Trustee
must have securities rated in one of the three highest rating categories
by a nationally recognized statistical rating organization.
(b) There shall at all times be one or more Administrators
hereunder. Each Administrator 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. An employee, officer, or
Affiliate of the Depositor may serve as an Administrator.
38
(c) There shall at all times be a Delaware Trustee. 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 with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that
shall act through one or more persons authorized to bind such entity.
Section 8.8. Conflicting Interests.
---------------------
(a) If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Property
Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Trust Agreement.
(b) The Guarantee Agreement and the Indenture shall be deemed to
be specifically described in this Trust Agreement for the purposes of
clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
Section 8.9. Co-Trustees and Separate Trustee.
--------------------------------
(a) Unless an Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in which
any part of the Trust Property may at the time be located, the Property
Trustee shall have power to appoint, and upon the written request of the
Property Trustee, the Depositor and the Administrators shall for such
purpose join with the Property Trustee in the execution, delivery, and
performance of all instruments and agreements necessary or proper to
appoint, one or more Persons approved by the Property Trustee either to
act as co-trustee, jointly with the Property Trustee, of all or any part
of such Trust Property, or to the extent required by law to act as
separate trustee of any such property, in either case with such powers
as may be provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title, right
or power deemed necessary or desirable, subject to the other provisions
of this Section 8.9. Any co-trustee or separate trustee appointed
pursuant to this Section 8.9 shall either be (i) a natural person who is
at least 21 years of age and a resident of the United States or (ii) a
legal entity with its principal place of business in the United States
that shall act through one or more persons authorized to bind such
entity.
(b) Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully
confirming to such co-trustee or separate trustee such property, title,
right, or power, any and all such instruments shall, on request, be
executed, acknowledged and delivered by the Depositor.
(c) Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms, namely:
(i) The Trust Securities shall be executed by one or more
Administrators, and the Trust Securities shall be executed and
delivered and all rights, powers, duties, and obligations
hereunder in respect of the custody of securities, cash and other
personal property held by, or required to be deposited or pledged
with, the Property Trustees specified hereunder, shall be
exercised, solely by the Property Trustee and not by such co-
trustee or separate trustee.
(ii) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or
39
imposed upon and exercised or performed by the Property Trustee
and such co-trustee or separate trustee jointly, as shall be provided
in the instrument appointing such co-trustee or separate trustee,
except to the extent that under any law of any jurisdiction in which
any particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event
such rights, powers, duties, and obligations shall be exercised
and performed by such co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the
Depositor, may accept the resignation of or remove any co-trustee
or separate trustee appointed under this Section, and, in case a
Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the
concurrence of the Depositor. Upon the written request of the
Property Trustee, the Depositor shall join with the Property
Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner
provided in this Section 8.9.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee or any other trustee hereunder.
(v) The Property Trustee shall not be liable by reason of
any act of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
Section 8.10. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of any Issuer Trustee (the
"Relevant Trustee") and no appointment of a successor Issuer Trustee
pursuant to this Article VIII shall become effective until the
acceptance of appointment by the successor Issuer Trustee in accordance
with the applicable requirements of Section 8.11.
(b) Subject to Section 8.10(a), a Relevant Trustee may resign at
any time by giving written notice thereof to the Holders. The Relevant
Trustee shall appoint a successor by requesting from at least three
Persons meeting the eligibility requirements its expenses and charges to
serve as the successor Issuer Trustee on a form provided by the
Administrators, and selecting the Person who agrees to the lowest
expenses and charges, subject to the prior consent of the Depositor
which consent shall not be unreasonably withheld. If the instrument of
acceptance by the successor Issuer Trustee required by Section 8.11
shall not have been delivered to the Relevant Trustee within 60 days
after the giving of such notice of resignation, the Relevant Trustee may
petition, at the expense of the Issuer Trust, any court of competent
jurisdiction for the appointment of a successor Issuer Trustee.
(c) The Property Trustee or the Delaware Trustee may be removed
at any time by Act of the Holders of a Majority in Liquidation Amount of
the Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Issuer Trust) (i) for Cause, or
(ii) if a Debenture Event of Default shall have occurred and be
continuing at any time.
40
(d) If a resigning Relevant Trustee shall fail to appoint a
successor, or if a Relevant Trustee shall be removed or become incapable
of acting as Issuer Trustee, or if any vacancy shall occur in the office
of any Issuer Trustee for any cause, the Holders of the Preferred
Securities, by Act of the Holders of record of not less than 25%
aggregate Liquidation Amount of the Preferred Securities then
Outstanding delivered to such Relevant Trustee, shall promptly appoint a
successor Issuer Trustee or Trustees, and such successor Issuer Trustee
shall comply with the applicable requirements of Section 8.11. If no
successor Issuer Trustee shall have been so appointed by the Holders of
the Preferred Securities and accepted appointment in the manner required
by Section 8.11, any Holder, on behalf of himself and all others
similarly situated, or any other Issuer Trustee, may petition any court
in the State of Delaware for the appointment of a successor Issuer
Trustee.
(e) The Property Trustee shall give notice of each resignation
and each removal of a Relevant Trustee and each appointment of a
successor Issuer Trustee to all Holders in the manner provided in
Section 10.8 and shall give notice to the Depositor and to the
Administrators. Each notice shall include the name of the Relevant
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 Delaware Trustee who is a natural
person dies or becomes, in the opinion of the Holders of the Common
Securities, incompetent or incapacitated, the vacancy created by such
death, incompetence or incapacity may be filled by the Property Trustee
following the procedures regarding expenses and charges set forth above
(with the successor in each case being a Person who satisfies the
eligibility requirement for Delaware Trustee set forth in Section 8.7).
Section 8.11. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Issuer
Trustee, the retiring Relevant Trustee and each such successor Issuer
Trustee with respect to the Trust Securities shall execute, acknowledge
and deliver an instrument wherein each successor Issuer Trustee shall
accept such appointment and which shall contain such provisions as shall
be necessary or desirable to transfer and confirm to, and to vest in,
each successor Issuer Trustee all the rights, powers, trusts and duties
of the retiring Relevant Trustee with respect to the Trust Securities
and the Issuer Trust, and upon the execution and delivery of such
instrument the resignation or removal of the retiring Relevant Trustee
shall become effective to the extent provided therein and each such
successor Issuer Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of
the Relevant Trustee; but, on request of the Issuer Trust or any
successor Issuer Trustee such Relevant Trustee shall duly assign,
transfer and deliver to such successor Issuer Trustee all Trust
Property, all proceeds thereof and money held by such Relevant Trustee
hereunder with respect to the Trust Securities and the Issuer Trust.
(b) Upon request of any such successor Issuer Trustee, the
Issuer Trust shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Issuer Trustee all
such rights, powers and trusts referred to in the first or second
preceding paragraph, as the case may be.
(c) No successor Issuer Trustee shall accept its appointment
unless at the time of such acceptance such successor Issuer Trustee
shall be qualified and eligible under this Article VIII.
Section 8.12. 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
41
consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any
Person succeeding to all or substantially all the corporate trust
business of such Relevant Trustee, shall be the successor of such
Relevant Trustee hereunder, provided that such Person shall be otherwise
qualified and eligible under this Article VIII, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto.
Section 8.13. Preferential Collection of Claims Against
-----------------------------------------
Depositor or Issuer Trust. If and when the Property Trustee shall be or
-------------------------
become a creditor of the Depositor (or any other obligor upon Junior
Subordinated Debentures or the Trust Securities), the Property Trustee
shall be subject to the provisions of the Trust Indenture Act regarding
the collection of claims against the Depositor or the Issuer Trust (or
any such other obligor) as is required by the Trust Indenture Act.
Section 8.14. Trustee May File Proofs of Claim. In case of
--------------------------------
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition, or other similar judicial
proceeding relative to the Issuer Trust or any other obligor upon the
Trust Securities or the property of the Issuer Trust or of such other
obligor, the Property Trustee (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 Issuer
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:
(a) 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
(b) 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 judicial 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
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.
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 8.15. Reports by Property Trustee.
---------------------------
(a) Within 60 days of January 31 of each year commencing with
January 31, 2000, the Property Trustee shall transmit to all Holders in
accordance with Section 10.8, and to the Depositor, a brief report dated
as of the immediately preceding January 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof,
if to the best of its knowledge it has continued to be eligible
under said Section, a written statement to such effect; and
42
(ii) any change in the property and funds in its possession
as Property Trustee since the date of its last report and any
action taken by the Property Trustee in the performance of its
duties hereunder which it has not previously reported and which in
its opinion materially affects the Trust Securities.
(b) In addition, the Property Trustee shall transmit to Holders
such reports concerning the Property Trustee and its actions under this
Trust Agreement as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided pursuant thereto as set forth in
Section 10.10 of this Trust Agreement.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with the
Depositor.
Section 8.16. Reports to the Property Trustee. The Depositor
-------------------------------
and the Administrators on behalf of the Issuer Trust shall provide to
the Property Trustee such documents, reports and information as required
by Section 314 of the Trust Indenture Act and the compliance certificate
required by Section 314(a) of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust
Indenture Act, as set forth in Section 10.10 of this Trust Agreement.
The Depositor and the Administrators shall annually file with the
Property Trustee a certificate specifying whether such Person is in
compliance with all the terms and covenants applicable to such Person
hereunder.
Section 8.17. Evidence of Compliance with Conditions
--------------------------------------
Precedent. Each of the Depositor and the Administrators on behalf of
---------
the Issuer Trust shall provide to the Property Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this
Trust Agreement that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act as set forth in Section 10.10
of this Trust Agreement. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) of the Trust Indenture
Act shall be given in the form of an Officers' Certificate.
Section 8.18. Number of Issuer Trustees.
-------------------------
(a) The number of Issuer Trustees shall be two. The Property
Trustee and the Delaware Trustee may be the same Person, in which event
the number of Issuer Trustees shall be one.
(b) If an Issuer Trustee ceases to hold office for any reason, a
vacancy shall occur. The vacancy shall be filled with an Issuer Trustee
appointed in accordance with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of an Issuer Trustee
shall not operate to dissolve, terminate or annul the Issuer Trust or
terminate this Trust Agreement.
Section 8.19. Delegation of Power.
-------------------
(a) Any Administrator may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21
his or her power for the purpose of executing any documents contemplated
in Section 2.7(a) or making any governmental filing.
(b) The Administrators shall have power to delegate from time to
time to such of their number the doing of such things and the execution
of such instruments either in the name of the Issuer
43
Trust or the names of the Administrators or otherwise as the
Administrators may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of this Trust
Agreement.
Section 8.20. Appointment of Administrators.
-----------------------------
(a) The Administrators (other than the initial Administrators)
shall be appointed by the Holders of a Majority in Liquidation Amount of
the Common Securities and all Administrators (including the initial
Administrators) may be removed by the Holders of a Majority in
Liquidation Amount of the Common Securities or may resign at any time.
If at any time there is no Administrator, the Property Trustee or any
Holder who has been a Holder of Trust Securities for at least six months
may petition any court of competent jurisdiction for the appointment of
one or more Administrators.
(b) Whenever a vacancy in the number of Administrators shall
occur, until such vacancy is filled by the appointment of an
Administrator in accordance with this Section 8.20, the Administrators
in office, regardless of their number (and notwithstanding any other
provision of this Trust Agreement), shall have all the powers granted to
the Administrators and shall discharge all the duties imposed upon the
Administrators by this Trust Agreement.
(c) Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrator or a Delaware Trustee
who is a natural person dies or becomes, in the opinion of the Holders
of a Majority in Liquidation Amount of the Common Securities,
incompetent, or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by the remaining
Administrators, if there were at least two of them prior to such vacancy
and by the Depositor, if there were not two such Administrators
immediately prior to such vacancy (with the successor in each case being
a Person who satisfies the eligibility requirement for Administrators or
Delaware Trustee, as the case may be, set forth in Section 8.7).
(d) Except as otherwise provided in this Trust Agreement or by
applicable law, any one Administrator may execute any document or
otherwise take any action which the Administrators are authorized to
take under this Trust Agreement.
ARTICLE IX
----------
DISSOLUTION, LIQUIDATION AND MERGER
-----------------------------------
Section 9.1. Dissolution Upon Expiration Date. Unless
--------------------------------
earlier dissolved, the Issuer Trust shall automatically dissolve on
___________, 2030 (the "Expiration Date").
Section 9.2. Early Dissolution. The first to occur of any of
-----------------
the following events is an "Early Termination Event," upon the
occurrence of which the Issuer Trust shall dissolve:
(a) the occurrence of any Bankruptcy Event with respect to the
Depositor, unless the Depositor shall transfer the Common Securities as
provided by Section 5.11, in which case this provision shall refer
instead to any Bankruptcy Event with respect to the successor Holder of
the Common Securities;
(b) delivery of the written direction to the Property Trustee
from the Holder of the Common Securities at any time to dissolve the
Issuer Trust and, after satisfaction of liabilities to creditors of the
44
Issuer Trust as provided by applicable law, to distribute the Junior
Subordinated Debentures to Holders in exchange for the Preferred
Securities (which direction, subject to Section 9.4(a), is optional and
wholly within the discretion of the Holder of the Common Securities);
(c) the redemption of all of the Preferred Securities in
connection with the redemption of all the Junior Subordinated
Debentures; and
(d) the entry of an order for dissolution of the Issuer Trust by
a court of competent jurisdiction.
Section 9.3. Termination. The respective obligations and
-----------
responsibilities of the Issuer Trustees, the Administrators and the
Issuer Trust created and continued hereby 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 Issuer Trust pursuant to Section 9.4, or
upon the redemption of all of the Trust Securities pursuant to
Section 4.2, (b) the payment of any expenses owed by the Issuer Trust,
(c) the discharge of all administrative duties of the Administrators,
including the performance of any tax reporting obligations with respect
to the Issuer Trust or the Holders, and (d) the filing of a certificate
of cancellation with the Delaware Secretary of State pursuant to
Section 3810 of the Delaware Business Trust Act.
Section 9.4. Liquidation.
-----------
(a) If an Early Termination Event specified in clause (a), (b)
or (d) of Section 9.2 occurs or upon the Expiration Date, the Issuer
Trust shall be liquidated by the Property Trustee as expeditiously as
the Property Trustee determines to be possible by distributing, after
satisfaction of liabilities to creditors of the Issuer Trust as provided
by applicable law, to each Holder a Like Amount of Junior Subordinated
Debentures, subject to Section 9.4(d). Notice of liquidation shall be
given by the Property Trustee by first-class mail, postage prepaid,
mailed not later than 15 nor more than 45 days prior to the Liquidation
Date to each Holder of Trust Securities at such Holder's address
appearing in the Securities Register. All 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
any Trust Securities Certificates not surrendered for exchange
will be deemed to represent a Like Amount of Junior Subordinated
Debentures; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Junior Subordinated Debentures, or if Section 9.4(d) applies
receive a Liquidation Distribution, as the Administrators or 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 Issuer Trust and distribution of the
Junior Subordinated Debentures to Holders, the Property Trustee shall
establish a record date for such distribution (which shall be not more
than 30 days prior to the Liquidation Date) and, either itself acting as
exchange agent or through the appointment of a separate exchange agent,
shall establish such procedures as it shall deem appropriate to effect
the distribution of Junior Subordinated Debentures in exchange for the
Outstanding Trust Securities Certificates.
45
(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) the Clearing Agency for the Preferred Securities or
its nominee, as the registered Holder of the Global Preferred Securities
Certificate, shall receive a registered global certificate or
certificates representing the Junior Subordinated Debentures to be
delivered upon such distribution with respect to Preferred Securities
held by the Clearing Agency or its nominee, and (iii) any Trust
Securities Certificates not held by the Clearing Agency for the
Preferred Securities or its nominee as specified in clause (ii) above
will be deemed to represent Junior Subordinated Debentures having a
principal amount equal to the stated Liquidation Amount of the Trust
Securities represented thereby and bearing accrued and unpaid interest
in an amount equal to the accumulated and unpaid Distributions on such
Trust Securities until such certificates are presented to the Securities
Registrar for transfer or reissuance.
(d) If, notwithstanding the other provisions of this
Section 9.4, whether because of an order for dissolution entered by a
court of competent jurisdiction or otherwise, distribution of the Junior
Subordinated Debentures is not practical, or if any Early Termination
Event specified in clause (c) of Section 9.2 occurs, the Trust Property
shall be liquidated, and the Issuer Trust shall be liquidated by the
Property Trustee in such manner as the Property Trustee determines. In
such event, on the date of the dissolution of the Issuer Trust, Holders
will be entitled to receive out of the assets of the Issuer Trust
available for distribution to Holders, after satisfaction of liabilities
to creditors of the Issuer Trust as provided by applicable law, an
amount equal to the aggregate of 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 dissolution, the Liquidation Distribution can be paid only in
part because the Issuer 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 Issuer Trust on the
Trust Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holders of the Common Securities will be
entitled to receive Liquidation Distributions upon any such liquidation
pro rata (determined as aforesaid) with Holders of Preferred Securities,
except that, if a Debenture 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.
(e) Following the dissolution of the Issuer Trust and after the
completion of the winding up of the affairs of the Issuer Trust, one of
the Issuer Trustees shall file a certificate of cancellation with the
Delaware Secretary of State.
Section 9.5. Mergers, Consolidations, Amalgamations or
-----------------------------------------
Replacements of the Issuer Trust. The Issuer 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
entity, except pursuant to this Section 9.5 and Section 9.4. At the
request of the Holders of the Common Securities, and with the consent of
the Holders of a Majority in Liquidation Amount of the Preferred
Securities but without the consent of the Delaware Trustee or the
Property Trustee, the Issuer 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, however, that (a) such
successor entity either (i) expressly assumes all of the obligations of
the Issuer Trust with respect to the Securities or (ii) substitutes for
the Preferred Securities other securities having substantially the same
terms as the Preferred 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 and which are then listed or listed upon
notification of issuance on any national securities exchange or automated
quotation system on which the Trust Preferred Securities are then listed,
(b) a trustee of such successor entity possessing the same powers and
46
duties as the Property Trustee is appointed to hold the Junior
Subordinated Debentures, (c) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization if the Preferred
Securities were rated by any nationally recognized statistical rating
organization immediately prior to such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, (d) 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, (e) such successor entity
has a purpose substantially identical to that of the Issuer Trust,
(f) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Issuer Trustee has received an
Opinion of Counsel from independent counsel experienced in such matters
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,
and (ii) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Issuer Trust nor
such successor entity will be required to register as an "investment
company" under the Investment Company Act, and (g) the Depositor or any
permitted transferee to whom it has transferred the Common Securities
hereunder 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 Issuer Trust shall not, except with
the consent of Holders of 100% in Liquidation Amount 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 entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger, replacement, conveyance, transfer
or lease would cause the Issuer Trust or the successor entity to be fail
or cease to be classified as grantor trust for United States federal
income tax purposes. Any merger or similar agreement shall be executed
by the Administrators on behalf of the Issuer Trust.
ARTICLE X
---------
MISCELLANEOUS PROVISIONS
------------------------
Section 10.1. Limitation of Rights of Holders. Except as set
-------------------------------
forth in Section 9.2, the bankruptcy, dissolution, termination, death or
incapacity of any Person having an interest, beneficial or otherwise, in
Trust Securities shall not operate to terminate this Trust Agreement or
dissolve, terminate or annul the Issuer 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 10.2. Amendment.
---------
(a) This Trust Agreement may be amended from time to time by the
Property Trustee, the Administrators and the Holders of a Majority in
Liquidation Amount of the Common Securities, without the consent of any
Holder of the Preferred Securities, (i) to cure any ambiguity, correct
or supplement any provision herein which may be inconsistent with any
other provision herein, or to make any other provisions with respect to
matters or questions arising under this Trust Agreement; provided,
however, that such amendment shall not adversely affect in any material
respect the interests of any Holder or (ii) to modify, eliminate, or add
to any provisions of this Trust Agreement to such extent as shall be
47
necessary to ensure that the Issuer Trust will be classified as a grantor
trust (and not an association taxable as a corporation) for United
States federal income tax purposes at any time that any Trust Securities
are Outstanding or to ensure that the Issuer Trust will not be required
to register as an "investment company" under the Investment Company Act.
(b) Except as provided in Section 6.1(c) or Section 10.2(c), any
provision of this Trust Agreement may be amended by the Property
Trustee, the Administrators, and the Holders of a Majority in
Liquidation Amount of the Common Securities with (i) the consent of
Holders of a Majority in Liquidation Amount of the Preferred Securities
and (ii) receipt by the Issuer Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to the
Issuer Trustees in accordance with such amendment will not cause the
Issuer Trust to fail or cease to be classified as a grantor trust for
United States federal income tax purposes or affect the Issuer Trust's
exemption from status of an "investment company" under the Investment
Company Act.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Holder (such
consent being obtained in accordance with Section 6.3 or 6.6 hereof),
this Trust Agreement may not be amended to (i) change the amount or
timing of any Distribution on the Trust Securities or otherwise
adversely affect the amount of any Distribution required to be made in
respect of the Trust Securities as of a specified date or (ii) restrict
the right of a Holder to institute suit for the enforcement of any such
payment on or after such date. Notwithstanding any other provision
herein, without the unanimous consent of the Holders (such consent being
obtained in accordance with Section 6.3 or 6.6), this Section 10.2(c)
may not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Issuer Trustee shall enter into or consent to any
amendment to this Trust Agreement which would cause the Issuer Trust to
fail or cease to qualify for the exemption from status as an "investment
company" under the Investment Company Act or to fail or cease to be
classified as a grantor trust for United States federal income tax
purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor and the Administrators,
this Trust Agreement may not be amended in a manner which imposes any
additional obligation on the Depositor or the Administrators.
(f) In the event that any amendment to this Trust Agreement is
made, the Administrators or the Property Trustee shall promptly provide
to the Depositor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall
be required to enter into any amendment to this Trust Agreement which
affects its own rights, duties or immunities under this Trust Agreement.
The Property Trustee 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.
(h) Any amendments to this Trust Agreement pursuant to
Section 10.2(a) shall become effective when notice of such amendment is
given to the Holders of the Trust Securities.
Section 10.3. Separability. In case any provision in this
------------
Trust Agreement or in the Trust 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.
48
Section 10.4. Governing Law. THIS TRUST AGREEMENT AND THE
-------------
RIGHTS AND OBLIGATIONS OF EACH OF THE HOLDERS, THE ISSUER TRUST, THE
DEPOSITOR, THE ISSUER TRUSTEES, AND THE ADMINISTRATORS WITH RESPECT TO
THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE,
WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 10.5. Payments Due on Non-Business Day. If the date
--------------------------------
fixed for any payment on any Trust Security shall be a day that is not a
Business Day, then such payment need not be made on such date but may be
made on the next succeeding day that is a Business Day (except as
otherwise provided in Section 4.2(d)), except that, if such Business Day
is in the next succeeding calendar year, payment on any Trust Security
shall be made on the immediately preceding Business Day, in each case,
with the same force and effect as though made on the date fixed for such
payment, and no Distributions shall accumulate on such unpaid amount for
the period after such date.
Section 10.6. Successors and Assigns. This Trust Agreement
----------------------
shall be binding upon and shall inure to the benefit of any successor to
the Depositor, the Issuer Trust, the Administrators, and any Issuer
Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale 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 10.7. Headings. The Article and Section headings are
--------
for convenience only and shall not affect the construction of this Trust
Agreement.
Section 10.8. 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 by deposit thereof, first class postage prepaid, in
the United States mail, hand delivery or facsimile transmission, in each
case, addressed, (i) 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 (ii) in the case of the Holder of Common
Securities or the Depositor, to Allegiant Bancorp, Inc., 0000 Xxxxxx
Xxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Corporate Secretary,
facsimile no.: (000) 000-0000 or to such other address as may be
specified in a written notice by the Depositor to the Property Trustee.
Such notice, demand or other communication to or upon a Holder shall be
deemed to have been sufficiently given or made, for all purposes, upon
hand delivery, mailing or transmission. Such notice, demand or other
communication to or upon the Depositor shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by
the Depositor.
(b) Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given
or served to or upon the Issuer Trust, the Property Trustee, the
Delaware Trustee, the Administrators, or the Issuer Trust shall be given
in writing addressed (until another address is published by the Issuer
Trust) as follows: (i) with respect to the Property Trustee to Bankers
Trust Company, Four Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000,
Attention: Corporate Trust and Agency Group Corporate Market Services;
(ii) with respect to the Delaware Trustee to Bankers Trust (Delaware),
E.A. Delle Donne Corporate Center, Xxxxxxxxxx Building, 0000 Xxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx, 00000-0000, Attention: Xxxx
Xxxxxxx, and (iii) with respect to the Administrators, to them at the
address above for notices to the Depositor, marked "Attention: Office
49
of the Secretary." Such notice, demand or other communication to or
upon the Issuer Trust or the Property Trustee shall be deemed to have
been sufficiently given or made only upon actual receipt of the writing
by the Issuer Trust, the Property Trustee, or such Administrator.
Section 10.9. Agreement Not to Petition. Each of the Issuer
-------------------------
Trustees, the Administrators and the Depositor agree for the benefit of
the Holders that, until at least one year and one day after the Issuer
Trust has been terminated in accordance with Article IX, they shall not
file, or join in the filing of, a petition against the Issuer Trust
under any bankruptcy, insolvency, reorganization or other similar law
(including, without limitation, the United States Bankruptcy Code)
(collectively, "Bankruptcy Laws") or otherwise join in the commencement
of any proceeding against the Issuer Trust under any Bankruptcy Law. In
the event the Depositor takes action in violation of this Section 10.9,
the Property Trustee agrees, for the benefit of Holders, that at the
expense of the Depositor, it shall file an answer with the bankruptcy
court or otherwise properly contest the filing of such petition by the
Depositor against the Issuer 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 Issuer Trustee or the Issuer
Trust may assert. If any Issuer Trustee or Administrator takes action
in violation of this Section 10.9, the Depositor agrees, for the benefit
of the Holders, that at the expense of the Depositor, it shall file an
answer with the bankruptcy court or otherwise properly contest the
filing of such petition by such Person against the Depositor or the
commencement of such action and raise the defense that such Person 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
Depositor or the Issuer Trust may assert. The provisions of this
Section 10.9 shall survive the termination of this Trust Agreement.
Section 10.10. Trust Indenture Act; Conflict with Trust
-----------------------------------------
Indenture Act.
-------------
(a) Trust Indenture Act; Application. (i) This Trust Agreement
--------------------------------
is subject to the provisions of the Trust Indenture Act that are
required to be a part of this Trust Agreement and shall, to the extent
applicable, be governed by such provisions; (ii) if and to the extent
that any provision of this Trust Agreement limits, qualifies or
conflicts with the duties imposed by Sections 310 to 317, inclusive, of
the Trust Indenture Act, such imposed duties shall control; (iii) for
purposes of this Trust Agreement, the Property Trustee, to the extent
permitted by applicable law and/or the rules and regulations of the
Commission, shall be the only Issuer Trustee which is a trustee for the
purposes of the Trust Indenture Act; and (iv) the application of the
Trust Indenture Act to this Trust Agreement shall not affect the nature
of the Preferred Securities and the Common Securities as equity
securities representing undivided beneficial interests in the assets of
the Issuer Trust.
(b) Lists of Holders of Preferred Securities. (i) Each of the
----------------------------------------
Depositor and the Administrators on behalf of the Issuer Trust shall
provide the Property Trustee with such information as is required under
Section 312(a) of the Trust Indenture Act at the times and in the manner
provided in Section 312(a) and (ii) the Property Trustee shall comply
with its obligations under Sections 310(b), 311 and 312(b) of the Trust
Indenture Act.
(c) Reports by the Property Trustee. Within 60 days after
-------------------------------
January 31 of each year, commencing January 31, 2000, the Property
Trustee shall provide to the Holders of the Trust Securities such
reports as are required by Section 313 of the Trust Indenture Act, if
any, in the form, in the manner and at the times provided by Section 313
of the Trust Indenture Act. The Property Trustee shall also comply with
the requirements of Section 313(d) of the Trust Indenture Act.
50
(d) Periodic Reports to Property Trustee. Each of the Depositor
------------------------------------
and the Administrators on behalf of the Issuer Trust shall provide to
the Property Trustee, the Commission and the Holders of the Trust
Securities, as applicable, such documents, reports and information as
required by Section 314(a)(1)-(3) (if any) of the Trust Indenture Act
and the compliance certificates required by Section 314(a)(4) and (c) of
the Trust Indenture Act (provided that any certificate to be provided
pursuant to Section 314(a)(4) of the Trust Indenture Act shall be
provided within 120 days of the end of each fiscal year of the Issuer
Trust).
(e) Evidence of Compliance with Conditions Precedent. Each of
------------------------------------------------
the Depositor and the Administrators on behalf of the Issuer Trust shall
provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement which
relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given pursuant
to Section 314(c) shall comply with Section 314(e) of the Trust
Indenture Act.
(f) Disclosure of Information. The disclosure of information as
-------------------------
to the names and addresses of the Holders of Trust Securities in
accordance with Section 312 of the Trust Indenture Act, regardless of
the source from which such information was derived, shall not be deemed
to be a violation of any existing law or any law hereafter enacted which
does not specifically refer to Section 312 of the Trust Indenture Act,
nor shall the Property Trustee be held accountable by reason of mailing
any material pursuant to a request made under Section 312(b) of the
Trust Indenture Act.
Section 10.11. Acceptance of Terms of Trust Agreement,
----------------------------------------
Guarantee and Indenture. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY
-----------------------
OR ANY INTEREST THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL
OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL
CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND ALL OTHERS
HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AGREEMENT AND THE
INDENTURE, AND THE AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER
TERMS OF THE GUARANTEE AGREEMENT AND THE INDENTURE, AND SHALL CONSTITUTE
THE AGREEMENT OF THE ISSUER TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE
TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE
AND EFFECTIVE AS BETWEEN THE ISSUER TRUST AND SUCH HOLDER AND SUCH
OTHERS.
Section 10.12. Counterparts. This Trust Agreement may contain
------------
more than one counterpart of the signature page and this Trust Agreement
may be executed by the affixing of the signature of each of the Issuer
Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall
have the same force and effect as though all of the signers had signed a
single signature paper.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
51
IN WITNESS WHEREOF, the parties have caused this Amended and
Restated Trust Agreement to be duly executed as of the day and year
first above written.
ALLEGIANT BANCORP, INC., as Depositor
By:
---------------------------------------
Name:
Title:
BANKERS TRUST COMPANY, as Property Trustee
By:
---------------------------------------
Name:
Title:
BANKERS TRUST (DELAWARE), as Delaware
Trustee and not in its individual capacity
By:
---------------------------------------
Name:
Title:
Subscribed to and Accepted by, as the Initial Administrators:
---------------------------------------
Xxxxx X. Xxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
52
EXHIBIT A
---------
[CERTIFICATE OF TRUST FILED WITH DELAWARE SECRETARY OF STATE]
53
EXHIBIT B
---------
[FORM OF CERTIFICATE DEPOSITARY AGREEMENT]
54
EXHIBIT C
---------
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO A
SUCCESSOR IN INTEREST TO THE DEPOSITOR OR AN AFFILIATE
OF THE DEPOSITOR IN COMPLIANCE WITH APPLICABLE LAW
AND SECTION 5.11 OF THE TRUST AGREEMENT
Certificate Number Number of Common Securities
C-__
Certificate Evidencing Common Securities
of
Allegiant Capital Trust I
____% Common Securities
(liquidation amount $____ per Common Security)
Allegiant Capital Trust I, a statutory business trust created
under the laws of the State of Delaware (the "Issuer Trust"), hereby
certifies that Allegiant Bancorp, Inc. (the "Holder") is the registered
owner of _________ (___) common securities of the Issuer Trust
representing undivided beneficial interest in the assets of the Issuer
Trust and designated the Allegiant Capital Trust I ____% Common
Securities (liquidation amount $10 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 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 Issuer
Trust, dated as of ________, 1999, as the same may be amended from time
to time (the "Trust Agreement") among Allegiant Bancorp, Inc., as
Depositor, Bankers Trust Company, as Property Trustee, Bankers Trust
(Delaware), as Delaware Trustee, and the Holders of Trust Securities,
including the designation of the terms of the Common Securities as set
forth therein. The Issuer Trust will furnish a copy of the Trust
Agreement to the Holder without charge upon written request to the
Issuer Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
Terms used but not defined herein have the meanings set forth in
the Trust Agreement.
55
IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust
has executed this certificate this ___ day of ______________, 1999.
Allegiant Capital Trust I
By:
---------------------------------
Name:
Administrator
AUTHENTICATED AND REGISTERED:
BANKERS TRUST COMPANY,
as Property Trustee and Securities Registrar
By:
---------------------------------
Name:
Signatory Officer
56
EXHIBIT D
---------
[IF THE PREFERRED SECURITY CERTIFICATE IS TO BE A GLOBAL PREFERRED
SECURITY CERTIFICATE, INSERT - This Preferred Security Certificate is a
Global Preferred Security Certificate within the meaning of the Trust
Agreement hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Preferred Security
Certificate is exchangeable for Preferred Security Certificates
registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Trust
Agreement and may not be transferred except as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary, except in the limited
circumstances described in the Trust Agreement.
Unless this Preferred Security Certificate is presented by an
authorized representative of The Depository Trust Company, a New York
Corporation ("DTC"), to Allegiant Capital Trust I or its agent for
registration of transfer, exchange or payment, and any Preferred
Security Certificate issued is registered in the name of such nominee as
is requested by an authorized representative of DTC (and any payment is
made to such entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO A PERSON IS WRONGFUL inasmuch as the registered owner hereof, has
an interest herein.]
57
CERTIFICATE NUMBER NUMBER OF PREFERRED SECURITIES
P-__
CUSIP NO. ________________________
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
ALLEGIANT CAPITAL TRUST I
____% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $10 PER PREFERRED SECURITY)
Allegiant Capital Trust I, a statutory business trust created
under the laws of the State of Delaware (the "Issuer Trust"), hereby
certifies that _______________ (the "Holder") is the registered owner of
$___________ aggregate liquidation amount of preferred securities of the
Issuer Trust representing a preferred undivided beneficial interest in
the assets of the Issuer Trust and designated the Allegiant Capital
Trust I ____% Preferred Securities (liquidation amount $10 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and the records of the Issuer 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 5.5
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 Issuer Trust, dated as of ________,
1999, as the same may be amended from time to time (the "Trust
Agreement"), among Allegiant Bancorp, Inc., as Depositor, Bankers Trust
Company, as Property Trustee, Bankers Trust (Delaware), as Delaware
Trustee, and the Holders of Trust Securities, including the designation
of the terms of the Preferred Securities as set forth therein. The
Holder is entitled to the benefits of the Guarantee Agreement entered
into by Allegiant Bancorp, Inc., a Missouri corporation, and Bankers
Trust Company, as Guarantee Trustee, dated as of ________, 1999 , as the
same may be amended from time to time (the "Guarantee Agreement"), to
the extent provided therein. The Issuer Trust will furnish a copy of
the Trust Agreement and the Guarantee Agreement to the Holder without
charge upon written request to the Issuer 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.
58
IN WITNESS WHEREOF, one of the Administrators of the Issuer Trust
has executed this certificate this _______ day of ____________, 1999.
ALLEGIANT CAPITAL TRUST I
By:
----------------------------------
Name:
Administrator
AUTHENTICATED AND REGISTERED:
BANKERS TRUST COMPANY,
as Property Trustee and Securities Registrar
By:
---------------------------------
Name:
Authorized Signatory
59
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security Certificate to:
------------------------------------------------------
(Insert assignee's name and social security or tax
identification number)
------------------------------------------------------
------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints:
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of
the Issuer 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 Security
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.
60
